Possession of a controlled drug

s.5(2)Misuse of Drugs Act 1971

Unlawfully having a controlled drug in your possession.

Possession of a controlled drug · Misuse of Drugs Act 1971, s.5(2)Card 60 / 85

Points to prove

Had in their possession
Knowing they had the item (but not necessarily knowing it was a controlled drug)
A controlled drug
Unlawfully (not authorised by regulations under s.7)

Possession – s.37(3): includes anything subject to the person’s control which is in the custody of another.
Controlled drug – s.2: any substance or product for the time being specified in Part I (Class A), Part II (Class B) or Part III (Class C) of Schedule 2, or in a temporary class drug order.
Unlawfully – s.5(1): possession is unlawful unless allowed by regulations under s.7 (for example, a drug lawfully prescribed to the person).

The defendant must prove these, on the balance of probabilities:

Taking possession to prevent an offence – s.5(4)(a): knowing or suspecting it was a controlled drug, they took it to stop another person committing or continuing an offence with it, and as soon as possible took all reasonable steps to destroy it or hand it to someone lawfully entitled to take custody of it.
Taking possession to hand it in – s.5(4)(b): knowing or suspecting it was a controlled drug, they took it to deliver it to someone lawfully entitled to take custody of it, and as soon as possible took all reasonable steps to do so.
Lack of knowledge – s.28: they neither knew nor suspected nor had reason to suspect a fact the prosecution must prove. Believing it was a different controlled drug is no defence (s.28(3)(a)), but proving they did not believe or suspect, and had no reason to suspect, that it was a controlled drug at all is (s.28(3)(b)(i)).

A person who knows they have a package or container is generally in possession of what is inside, even if mistaken about what it is. That is where the s.28 defence comes in (Warner v Metropolitan Police Commissioner 1969).
Any quantity that can be shown to exist can be possessed. It does not need to be a usable amount (R v Boyesen 1982).
Cannabis and cannabis resin are Class B.
There is no simple possession offence for a temporary class drug (s.5(2A)).

Legislation: Misuse of Drugs Act 1971, s.5(2) (opens legislation.gov.uk in a new tab)
Mode of trial: Either way
Maximum penalty: On indictment: Class A 7 years, Class B 5 years, Class C 2 years (each and/or a fine). Summarily: Class A 12 months and/or a fine; Class B 3 months and/or £2,500; Class C 3 months and/or £1,000