Section 5 Misuse of Drugs Act 1971
Possession of a controlled drug
It is unlawful to have a controlled drug in your possession unless you have authorisation in the form of a licence or if you did not know the substance was a controlled drug.
Three elements constitute the offence of possession:
- The substance is in the possession or under the control of the individual.
The substance must be in an individual’s physical custody or under their control. This can include being at the property of someone who is not present but has control over that property.
- The individual knows the ‘thing exists’.
The individual must know of the existence of the substance and they must know that the substance is a controlled drug.
- The substance is a controlled drug.
The substance must in fact be a controlled drug. Therefore, if the individual thought they were in possession of cannabis but they were in fact in possession of tea leaves, no offence has been committed.
It is a defence against a possession charge if the defendant can prove that, as soon as was practicable, they intended to destroy the substance or give it to someone who had legal authority to possess it.
Depending on the circumstances of a case, an allegation of joint possession may be made; for example, where a group of people is apprehended when travelling in a car with a stash of drugs. If it can be proven that they were all in control of the drugs, they might all be guilty of joint possession of the same batch.
Penalties Available for Possession
The severity of the penalty applied in relation to drugs offences will depend on the individual circumstances of the case.
Please note these are the maximum sentences only and in most cases will not be reflective of the sentence given.
Class A - 7 years’ imprisonment or a fine or both
Class B - 5 years’ imprisonment or a fine or both
Class C - 2 years’ imprisonment or a fine or both