Submitted By: Chloe Hanna
Question: Aoife is a law professor at Fauxbridge University. She develops serious back pain after a fall. She is prescribed Codeine, a strong painkiller, by her doctor. Over time Aoife develops a dependency on the drug. She starts to crave higher dosages of the drug than her doctor will provide. She decides to obtain further supplies illegally on the black market. She contacts a local drug dealer who supplies her with the drug as requested. After a couple of weeks, the dealer suggests to Aoife that she might wish to try injecting the drug. Aoife agrees. The dealer starts to supply Aoife with the drug in liquid form for the purposes of injection. In an attempt to break her habit, a friend recommends to Aoife that she switch to cannabis. Aoife starts to use cannabis supplied by her friend. She finds that this allows her to significantly reduce the amount of codeine she is taking. She sets herself a goal of completely giving up on codeine with 6 weeks. However, following a tip-off, the police carry out a search of Aoife’s house and find quantities of codeine (both in oral and injection form) as well as Cannabis. When arrested the police inform Aoife that codeine (in oral form) is a Class B drug and in injection, form is a Class A drug. Aoife states that she did not realise that the form of codeine would change its classification. The police also find a bag of powder which when tested is found to have psychoactive effects. Aoife who is renting the house states that she was not aware of the bag and that it must have been left by a previous owner.
Discuss the criminal liability of Aoife AND critically examine the law to which you refer.
(a) Discuss Liability
The Misuse of Drugs Act 1971 (‘MoDA’) is the main statutory authority regulating drugs. The Psychoactive Substances Act 2016 (‘PSA’) regulates substances that have a psychoactive affect outside of the MoDA scope, bar the listed exemptions (Section 3; Schedule 1). Although drug use is not an offence, it is an offence to possess or supply, thus Aoife may be liable under the MoDA or PSA.
Possession – MoDA Section 5(2)
It is an offence to be knowingly and unlawfully in the possession of any controlled substance (Section 5(2)). Although any drugs Aoife has previously taken are not considered to be ‘possessed’ (Hambleton v Callinan 1968), the substances at her home are in her possession provided they are one of the controlled substances in Section 2 (R v Boysen 1982). Controlled substances are divided into three classes (A, B and C) by Schedule 2, which provides the basis for determining the penalty that should follow.
The injection form of codeine is a Class A substance and the oral form of codeine and cannabis are Class B substances. A bag of powder is also found at her home; it is known that it has psychoactive affects, but the facts do not reveal whether it is a controlled substance or not. If the power is held to be only a psychoactive substance (PSA Section 2), Aoife would not face charges under the PSA as there is no offence of possession. In order to cover all bases, the possible offences under the MoDA for the powder will be highlighted.
To have the necessary Mens Rea, a defendant must have knowledge of their possession, this means knowing the item exists (Warner v Police Commissioner 1969) even if the defendant did not know of the item’s quality (R v McNamara 1988). It is clear on the facts that Aoife was aware that she had codeine and cannabis. Although she contends that she did not know codeine in injection form was a Class A substance, this does not act in her defence. Ignorance of the law is no excuse, so she will still be charged with possession with a Class A substance (MoDA Section 28(3)(a)).
There is a strong presumption that a person is in possession if the substance is found on them or in their property, this is rebuttable where the substance was placed without the defendant’s knowledge (Warner). It appears that Aoife would not have the necessary Mens Rea for the powder because she claims it was left by a previous tenant. However, in a case of similar facts, R v Lewis (1988), it was held that a tenant would be liable for drugs found on the rental premises, as the tenancy gave them opportunity to acquaint themselves with the contents. It is cases such as Lewis which arguably construe the restrictions on the Warner presumption almost out of existence (Wilson 2008). More facts would be required in order to determine whether there are distinguishing factors between Aoife and Lewis or to ascertain whether it would be likely that a jury would find that she did or did not have the Mens Rea.
The defendant carries the evidentiary burden to call evidence that raises a defence (R v Lambert 2001). In defence to possession for the oral form of codeine, Aoife may rely on MoDA Section 28(3)(b)(ii), which provides that there may be no offence where the defendant has a valid prescription. It is unclear what quantity of codeine was discovered in her possession, but the facts highlight that Aoife was sourcing codeine from her dealer in greater dosages than her doctor prescribed. The defence will only apply to the amount she was entitled to have, and the prosecution may admit evidence to the contrary.
Aoife is relying on cannabis to help withdraw from her codeine addiction. Although there is no defence of necessity, the CPS Guidelines highlight the consideration of public interest in perusing convictions of adult offenders with small amounts of cannabis for personal medical use; they may find it is not in the best interests to pursue a conviction at all on these grounds. Hence, if Aoife is prosecuted and subsequently convicted she can only rely on this fact in mitigation.
Possession with Intent to Supply – MoDA Section 5(3)
It is preferred by the prosecution to charge the more serious offence where evidence supports it (CPS Guidelines); they may consider charging Aoife under possession with intent to supply (MoDA Section 5(3)). The Actus Reus and Mens Rea of intent to supply is the same as possession, with the additional requirement of an intention to supply a controlled substance. Despite there being nothing in the facts that suggest Aoife was in fact going to supply the drugs to anyone else, inferences may still be drawn against her. Under CPS Guidelines, indirect evidence can suggest an intention to supply. It is unclear what quantity of each substance Aoife had, however if this is deemed inconsistent with personal use, alongside the fact she was in possession of a variety of drugs, it may be used as indirect evidence. Again, Aoife may rely on the Section 28(3)(b)(ii) defence.
It is likely Aoife will be charged with the more serious offence of intention to supply, as the jury have to opportunity to return with a guilty verdict for the lesser offence of possession. If she is found guilty, a summary conviction of unlawful possession of Class A involves penalties up to 6 months imprisonment and/or a fine of up to £5,000; on indictment, penalties may reach an unlimited fine and/or 7 years imprisonment. For Class B, 3 months imprisonment and/or £2,500 fine on summary, or unlimited fine and/or 5 year’s imprisonment on indictment. In particular regard to the cannabis, there are also alternative responses, such as a cannabis warning or caution from police. For the greater offence of intent to supply, she could face a £5,000 fine and/or 6 months imprisonment on summary for Class A and B, an unlimited fine and/or 14 year’s imprisonment for Class B, and up to life imprisonment for Class A on indictment.
(b) Evaluate the Law
The criminalisation of drug addicts like Aoife is potentially one of the most concerning issues with the application of the law on combating drugs. Currently, drug users are considered perpetrators of a crime, as opposed to victims of a harm (Lennon 2017). Playing a role in this problem is the government’s politicisation of drug policy, focusing on securing convictions and attempting to deter users by forcing substances into higher classifications than the harm they actually cause to society.
The politicisation of drugs policy is evident in the reverting of cannabis back to a Class B substance. Whilst the government chose to reject the advice of the ACMD experts (Monaghan 2011), it is arguably unclear how the government chose to frame drug classification (Monaghan 2014). The House of Commons Science and Technology Committee (2006) highlighted significant anomalies in the ABC classification system and expressed concern that a focus on ‘sending out signals’ to potential users was taking away from the UK’s actual goals of preventing societal harm and reducing the prevalence of drug use (King and Phillips 2010). In particular, the Home Office (2005) found that 199,000 hours of police time were saved in the first year of cannabis being Class C; time that could be better spent tackling drug issues with greater societal impact.
Drug crimes are often regarded as ‘crimes without victims’ (Schur 1965) however, the often-forgotten victims are the users themselves. For example, Aoife suffered from a drug addiction stemming from a perfectly legal use of prescription drugs, and she may ultimately be penalised for possession of cannabis which was helping her fight that addiction. If drug use is only harmful to the user themselves, the question arises why the government are criminalising the conduct of rational adults in the first place (Forte et al). Critics such as Bonnie and Whitebread (1970) argue that conduct harmful only to the actor should be deterred through means other than the criminal law, an argument which one cannot ignore when research has shown criminal sanctions do little to prevent the consumption of drugs (Winick 1975, Weismann 1975).
It is clear that the government’s current approach to controlling drugs will not achieve their goal of reducing the misuse of drugs. It is particularly difficult to reconcile the MoDA with its aims of preventing drug use when it actively considers drug addicts as criminals, as opposed to victims needing rehabilitation or therapy (Slovetti 2001). However, there has been some movement to adapt sentencing guidelines to recognise the distinction between ‘victims’ and the perpetrators of drug supply and production, through widening the gap between punishments for possession and for supply offences. Even so, statue and common law have not yet provided a satisfactory method for legislating drugs and are in need of review.