back to criminal law back to home
Drugs
This page contains directions concerning (1) simple possession; (2) possession with intent to supply where possession is denied; (3) possession with intent to supply where possession is admitted; (4) possession with intent to supply where knowledge of the nature of the item and intent are denied; (5) the relevance of other drugs; (6) joint possession; (7) importation (being knowingly concerned in the fraudulent evasion of a prohibition in force); (8) supplying controlled drugs; and (9) conspiracy to supply.
Cultivating cannabis appears as a separate file.
(1) Drugs – simple possession
The prosecution allege that the defendant had cannabis in his possession
It is not in dispute that the cigarette seized by the police contained cannabis.
So the only thing you have to decide is whether or not the defendant was in possession of the cigarette.
As a matter of law possession involves two elements – control and knowledge.
It is not possible to possess an unlawful drug without knowing that you have it.
So, the key questions for you to answer in relation to Count *, having regard to all the evidence and the directions which I give you are
Did D** know that the cigarette contained cannabis?
If he did, did he have control over it?
If the answer to both questions is “yes”, he is guilty of Count *. If the answer to either question is “no”, he is not guilty of that count.
(2) Drugs - possession with intent to supply (1) – possession denied
Possession of heroin and cocaine with intent to supply.
Normally the prosecution have to prove four things –
· the drug was a Class A drug;
· it was in the defendant’s possession;
· D** knew it was in his possession ; and
· he intended to supply the drug to another person or other people.
D** accepts the prosecution evidence that the drugs were Class A drugs, but denies that they were in his possession or that he intended to supply the heroin and/or cocaine to another person or other people.
Possession.
Possession means having something and having some control over it.
This aspect is satisfied if someone has something in his pocket or somewhere else within his clothing.
Knowledge
The third part of the definition is knowledge. To be found guilty a defendant must have known that the drugs were there. For example, a man is not guilty if the drugs have been put into his pocket or his clothing without his knowledge.
Intention to supply
The word supply has a wide meaning. Supplying may be to friends or strangers. It includes both large scale commercial trafficking, dealers who drive expensive cars, and relatively small scale street dealing where the main purpose is to provide sufficient income to finance the dealer’s own habit or dependence.
How do you find out whether the intention is established? The answer is you can infer it from all the surrounding circumstances.
Sometimes dealers have items associated with drug dealing - scales for weighing drugs, lists of customers and phone numbers, or other substances to cut the drugs. Others do not.
The presence or absence of these things are all matters which you can take into account, but no single thing is conclusive. You must have regard to all the evidence.
You may wish to consider matters such as the quantity of drugs and the fact that the drugs were divided and bagged into small quantities.
Money found in the defendant’s possession may be relevant – it may give rise to an inference – but it is only relevant if you reject any innocent explanation given by the defendant – if it is possible that D** was in possession of the money found for other reasons than dealing drugs, you should ignore it. However if you are sure that it is indicative of past and continuing dealing, it is relevant to the question of whether or not he had an intention to supply.
D** says that the money which he had was his **job seekers allowance and money which he had been given by his mother.
(3) Drugs - possession with intent to supply (2) – possession accepted
Normally the prosecution have to prove four things –
1. The drug was a Class * drug;
2. It was in the defendant’s possession;
3. He knew it was in his possession; and
4. He intended to supply the drug to another person or other people.
The first three things are admitted in this case. D** admits that he was in possession of Class * drugs.
So, all you have to consider is whether he intended to supply some of the cannabis to another person or other people.
If you are sure that he had an intention to supply you must find him guilty of possession with intent to supply.
If you are not sure, you must find him not guilty of possession with intent to supply but guilty of simple possession which he admits.
“Supply”
The word supply has a wide meaning. It is not limited to “dealing”, or selling drugs for a profit. It may or may not involve payment for the drugs. Supplying may be to friends or strangers. It includes distributing and passing on drugs to another person in the drug supply chain. It also includes large scale commercial trafficking, dealers who drive expensive cars, their “employees” who carry out deliveries of drugs to customers or who run errands and carry drugs from one dealer to another, and relatively small scale street dealing where the main purpose is to provide sufficient income to finance the dealer’s own drug use. It also includes looking after drugs for another person, to whom they will be returned in due course.
The prosecution do not have to prove that the defendant intended to supply all of the cannabis to another person or other people. They only have to prove that he intended to supply some of it. If he intended to smoke some of the cannabis himself, but to supply some of it to another person, he is guilty of possession with intent to supply.
The prosecution do not have to prove that the defendant intended to supply all of the cannabis to another person or other people. They only have to prove that he intended to supply some of it. If he intended to smoke some of the cannabis himself, but to supply some of it to another person, he is guilty of possession with intent to supply.
How do you decide whether the intention to supply is established? You can infer it from all the surrounding circumstances.
Sometimes dealers have items associated with drug dealing - scales for weighing drugs, lists of customers and phone numbers, knives, self-seal bags or cling film for packaging. Others do not. D** had **electronic weighing scales – our Exhibit * His explanation for the scales is that **.
The presence or absence of these things is something which you can take into account, but no single thing is conclusive. You must have regard to all the evidence.
You should consider the quantity of drugs found. The prosecution case is that *** grams is a significant quantity, which could have been divided into ** individual deals. The defendant’s case is that he bought in bulk because it was cheaper and that it was his intention to use all the ** himself.
The money – approximately £**** - found in his possession may be relevant. The prosecution say that it is evidence of drug dealing – a float or profit from sales. That quantity of money may give rise to an inference, but it is only relevant if you reject any innocent explanation given by the defendant. D** said that the £**** was generated from his employment at ***. If it is possible that D** was in possession of the money found for reasons other than dealing drugs, you should ignore it. However if you are sure that it is indicative of past and continuing dealing, it is relevant to the question of whether or not he had an intention to supply.
So, the key question for you to answer in relation to Count *, having regard to all the evidence and the directions which I give you, is
Are you sure that D** intended to supply some or all of the ** found in his possession to another person or other persons?
If the answer is “yes”, he is guilty of Count *. If the answer “no”, he is not guilty of possession with intent to supply, but guilty of simple possession which he admits.
(4) Drugs - possession of a Class A drug with intent to supply (3) (knowledge of nature and intent denied)
Normally the prosecution have to prove four things –
· the drugs were Class A drugs;
· they were in the defendant’s possession;
· the defendant knew or suspected that they were illegal drugs; and
· he intended to supply the drugs to another person or other people.
D** accepts the prosecution evidence that the drugs were Class A drugs and accepts that he was carrying the wrap and so that it was in his possession.
However, he denies that he knew or suspected that it contained illegal drugs or that he intended to supply crack cocaine to another person or other people.
Knowledge or suspicion
To be found guilty the defendant must not only have known that he was carrying the wrap containing the crack cocaine, but he must also have known or suspected that the wrap contained illegal drugs, not necessarily that it was crack cocaine, simply that it contained illegal drugs of some kind, whether they be heroin, cocaine or even cannabis.
It is a defence for a defendant to prove that he neither knew nor suspected nor had reason to suspect that the wrap contained illegal drugs. The law is that that is a matter for him to prove on all the evidence. However whenever the law requires a defendant to prove something, he does not have to make you sure of it. He only has to show that it is probable, which means it is more likely than not, that he did not know, suspect or have reason to suspect that the wrap contained illegal drugs. Or, to put it another way, the prosecution must make you sure that he knew or suspected that the wrap contained illegal drugs.
Intention to supply
The word supply has a wide meaning. It can include providing, delivering, giving, distributing, dealing in or selling drugs. Supplying may be to friends or strangers. It includes both large scale commercial trafficking, dealers who drive expensive cars, and relatively small scale street dealing where the main purpose is to provide sufficient income to finance the dealer’s own habit or dependence.
How do you find out whether the intention is established? The answer is you can infer it from all the surrounding circumstances.
Sometimes dealers have items associated with drug dealing - scales for weighing drugs, lists of customers and phone numbers, or other substances to cut the drugs. Others do not. The presence or absence of these things are all matters which you can take into account, but no single thing is conclusive. You must have regard to all the evidence.
You may wish to consider matters such as the quantity of drugs. The prosecution evidence is that if divided up the crack cocaine being carried by the defendant would have amounted to some ** street deals. They suggest that D** would have sold some of those drugs to finance his own drug use. The defendant’s evidence is that he would have used all the drugs himself.
Count * Possession of a Class A drug
This is an alternative to Count 1.
If you are sure that D** knew or suspected that the wrap contained illegal drugs, but are not sure that he intended to supply them to another person, you should find him guilty of the lesser, alternative, offence of simple possession of cocaine. That is exactly the same as Count 1, but without the need for the prosecution to prove that intent.
You cannot find him guilty of both counts 1 and 2 because they are alternatives.
So, the key questions for you to answer, having regard to all the evidence and the directions which I give you, are these
1. Are you sure that D** knew or suspected that the wrap contained illegal drugs?
If the answer is “no” he is not guilty of either count. However, if the answer is “yes”, you should move on to the second question
2. Are you sure that he intended to supply all or part of those drugs to another person or other people?
If the answer to that second question is “yes”, the defendant is guilty of Count 1, possession with intent to supply. If the answer to the second question is “no”, he is not guilty of Count 1, but guilty of count 2, simple possession.
(5) Relevance of other drugs
You have heard that the defendant admits that he was in possession of other drugs which are not the subject of this indictment.
What is the relevance of that in this case? Firstly there is absolutely no question of D** being in possession of those other drugs with an intent to supply. He was acquitted of those charges by the jury in the earlier trial. I am sure that you would not want to go behind that verdict. Even if you did, as a matter of law you cannot. Secondly you must not assume that the defendant is guilty of the one count that he is faces in this court or that he is not telling the truth because he has admitted to possession of those drugs.
The only relevance of the other drugs to the one count which D** now faces is that, in general terms, the total quantity of drugs found may be relevant when considering the prosecution's case that he had an intention to supply and the defence case that they were for his personal consumption. It is a matter for you members of the jury, but you may think that the smaller the total quantity of drugs, the more likely that they are purely for a defendant's personal consumption and that the larger the total quantity of drugs, the more likely that a defendant has an intention to supply. However the quantity of drugs by itself is not conclusive. It is one factor which you may wish to take into account. As I have already said, you must have regard to all the evidence.
(6) Allegation of joint possession
D** agrees that the white powder in X**’s pockets was a Class A drug.
So I will move on to “possession”. Possession means having something and having some control over it.
This aspect is satisfied if someone has something in his pocket.
However, as a matter of law, - and this is relevant to the prosecution case against D** - someone may also be in possession of something even if it is not physically on his person if it is part of a common pool to which he has the right to draw at will - if he has a right to say what should be done with the drugs - or if the possession was part of a joint enterprise - that is both defendants were working together.
The prosecution's case is that D** and X** committed this offence together. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty.
The words 'plan' and 'agreement' do not mean that there has to be any formality about it. An agreement can be inferred from the behaviour of the parties.
The essence of joint responsibility for a criminal offence is that each defendant shared the intention to commit the offence and took some part in it.
Your approach to the case should therefore be as follows: if, looking at the case against D**, you are sure that with the intention I have mentioned he took some part in a plan with X**, he is guilty.
Mere presence in a car with a man who has drugs is not enough to prove guilt, but if you find that D** intended and did play a part in the plan he is guilty.
The third part of the definition is knowledge. To be found guilty a defendant must have known that the drugs were there. For example, a man is not guilty if drugs have been put into his pocket without his knowledge. For the offence to have been committed, you have to be sure that D** knew that the drugs were in X**'s pockets.
(7) Importation
Being knowingly concerned in the fraudulent evasion of a prohibition in force.
A person is guilty of an offence if, in relation to any goods, he or she, is, in any way, knowingly concerned in any fraudulent evasion of any prohibition in force with respect to the goods.
It is illegal to import **opium. There is a prohibition in force which makes it illegal to import **opium.
The word “fraudulent” means no more than “deliberately intended to conceal” the **drugs and so evade the prohibition on the importation of opium.
So, anyone, who, in any way, is knowingly concerned in the importation of **opium is guilty of a criminal offence.
The words “being concerned in the importation” are very wide. They include not just people who bring, or arrange to bring, the drugs into this country in the first place, but also those who take delivery of the drugs and then move the drugs on after they have been imported.
The word “concerned” means involved in some way i.e. playing some part or making oneself available to play some part.
Both defendants accept that there was an importation of **opium. Each one says that he knew nothing about the opium. Each one says the other was responsible. There are therefore three possibilities – either (as D1** says) D2** alone was responsible, or (as D2** says) D1** alone was responsible, or (as the prosecution says) both of them were jointly involved.
So, the key questions to be answered separately in relation to each defendant, having regard to all the evidence and the directions which I give you, are
Did he know that there was **opium in the ** intercepted by **customs?
Did he play some part in importing it into this country – either by **taking or arranging for the *** to be taken to the airport, or by accepting delivery of it here, or by arranging for it to be passed on to him after the initial delivery?
If you are sure that the answer to both questions is “yes”, he is guilty. If you are not sure, he is not guilty.
(8) Supplying controlled drugs
D** accepts that the drugs which the police seized from X** were controlled drugs – crack cocaine and diamorphine or heroin.
So the only issue for you to consider is whether D** “supplied” those drugs to X**.
The word supply has a wide meaning. It can include delivering, giving, distributing, dealing in or selling drugs. Supplying may be to friends or strangers. It may or may not involve payment. It includes both large scale commercial trafficking, dealers who drive expensive cars, and relatively small scale street dealing where the main purpose is to provide sufficient income to finance the dealer’s own habit or dependence.
The prosecution case is that **
However, D** denies this. He says **
So, the key question for you to answer separately in relation to each count, having regard to all the evidence and the directions which I give you, is this
Did D** hand the ** containing the drugs to X**?
If you are sure the answer is “yes”, the defendant is guilty. If the answer may be “no”, he is not guilty.
(9) Conspiracy to supply Class A drugs
Putting it simply, a conspiracy is an agreement. A conspiracy to supply class A drugs is an agreement to supply Class A drugs.
Someone is guilty of conspiracy if he or she agrees with another person (or persons) that a course of conduct will be pursued which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence or offences by one or more of the parties to the agreement.
The prosecution do not have to prove that a defendant committed a particular offence – in this case that he or she actually supplied drugs. The prosecution have to prove that he or she was party to an agreement to supply drugs.
Each conspirator may not know the full extent of the scheme, but, to be guilty, he or she must know that there is coming into existence or actually is in existence a scheme which goes beyond the illegal act or acts which he or she personally agrees to do.
Knowledge and intention are essential. A defendant cannot be guilty if he or she did not know about the planned and agreed criminal activity.
Similarly, a defendant cannot be guilty if he or she did not have any intention to take part in the criminal activity.
It is rare for there to be direct evidence of the agreement or conspiracy. Conspirators do not, generally, agree to commit criminal offences while other people are listening to their conversations. You can though infer the existence of a conspiracy from what the alleged conspirators have done – that is deduce it from acts of the parties which are done in pursuance of a common criminal purpose.
You do not need to decide who was the prime mover in the operation, or allocate precise areas of responsibility. The main man and the gofer or the runner are both guilty of conspiracy if they are both part of the agreement to commit a criminal offence.
back to criminal law back to home