Misuse of Drugs Act 1971



Section 5.2 - Misuse of Drugs Act

["It is an offence for a person to have a controlled drug in his possession"]

Elements of Possession:

'Possession' is a neutral concept, not implying any blame or guilt. There are two elements of possession:

  • Physical - Physical possession involves proof that the object is in the custody or control of the defendant.
  • Mental - Mental possession involves proof that the defendant is aware the object is in thier possession or control. They need not know the nature of the object or controlled drug.
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Points to Prove (Possession)

Points to Prove for Possession:

  • The item is in the possession of the defendant (physical and mental)
  • The item is a controlled drug
  • The quantity of the controlled drug was not so small that it could not have been possessed

The item in question must be a controlled drug. If a defendant believes they are in possession of a controlled drug and they are not, they cannot commit the offence of possession.

Example: HAMMETT finds what he believes to be cocaine in the bathroom of a pub. He takes it with the intention of snorting it later once he is at home. In actuality, the bag contains icing sugar. HAMMETT does not commit the offence of possession.

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Defences to Possession

Lack of Knowledge

An honest lack of knowledge that the defendant was in possession of a controlled drug may provide a defence. The lack of knowledge must be reasonable within the circumstances. The burden of proof for this defence falls upon the defendant.

Prevention of Another

It is a defence to take possession of a drug in order to prevent another from committing an offence in connection with that controlled drug, and then destroy or deliver that drug into the custody of a person lawfully entitled to take custody of it.

Lawfully Entitled

There is a defende for possession if that person in question is lawfully entitled to possess such a controlled drug. For instance, a doctor, a veterinarian, police or a pharmacist.

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Possession With Intent to Supply (PWITS)

Section 5.3. PWITS

["It is an offence for a person to have possession of a controlled drug, whether lawfully or not, with intent to supply it to another."]

As with simple possession, the drug in question must be a controlled drug in order for this offence to be complete.

Definition of Supply - R v Maginnis [1987]

The term 'supply' means more than the mere transfer of phyisical control of the controlled drug. The handing over of controlled drugs has to be for the purpose of allowing the recipient to put them to his own use, whatever that may be (ex. selling them to others or using them himself).

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Offer to Supply

Section 4.3.a

["It is an offence to offer to supply to another"]

Haggard v Mason [1975]

Unlike the other sections within this act, the offence is complete upon the defendant offering to sell the substance. It was the making of the offer that was unlawful and the nature of the substance in question was immaterial.

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Production or Supply of Drugs

Section 4 Production or Supply of Drugs

["It shall not be lawful for a person to produce a controlled drug; or to supply a controlled drug to another."]

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