Misuse Of Drugs Offences MODA 1971

Daniel Peck
Flashcards by , created over 3 years ago

Offences involving controlled drugs and defences. Created 2016.

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Daniel Peck
Created by Daniel Peck over 3 years ago
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Question Answer
Misuse Of Drugs Offences MODA 1971 1. Possession 2. Defences 3. Production 4.Supply 5. PWITS 6. Cultivation 7. Closure Notices 8. Import/Export 9. Enforcement 10. Travel Restrictions 11. Intoxicating Substances
Possession Class A, B & C Either Way Offence
Class A Penalty in Crown Court 7 Year and/or fine Class A Penalty Mags Court 6 Months and/or prescribed Sum
Class B Penalty in Crown Court 5 Years and/or fine Class B Penalty Mags Court 3 Months and/or fine
Class C Penalty Crown Court 2 Years and/or a fine Class C Penalty Mags Court 3 Months and/or fine
Section 5 MODA 1971 It is an offence for any person to; Unlawfully Have a controlled drug In their possession
It is necessary to establish either;
Unlawful Physical Possession of a substance A lack of physical possession but unlawful control of a substance
PLUS PLUS
Knowledge of possession of the substance PLUS
The substance was in fact a controlled drug (It is not necessary for the accused to know the substance was a controlled drug)
If John gives Fred his heroin for safe keeping, who will be guilty of possession? Both; John - has control Fred - has physical possession
R v Boyesen "Visible, Tangible and measurable" If the quantity was so small that the suspect could not possibly be aware of its presence there will be no possession.
R v Marriot 3 Step test (Sand on a knife) Step 1 - He was in possession of the substance
Step 2 - He knew he was in possession of the substance n.b. it is irrelevant what he thought the substance was. Step 3 - The substance was in fact a prohibited drug.
The same principal applied for containers; Step 1 - A container is in the suspect possession (e.g. A lunch box)
Step 2 - The lunch box contains a substance (e.g. Cannabis) Step 3 - The suspect knows there is something in the lunch box (It does not matter if he thinks these are sandwiches)
Step 4 - The contents are a prohibited drug. In these circumstances the suspect maybe able to rely on a defence;
Defences 2 Special Defences (Possession only) 3 General Defences (C.O.P.P.I.S)
Special Defence 1 (Possession Only) To Prevent another from committing an offence; (Parent Example) Know/Suspect it to be a controlled drug Took Possession to Prevent Another Committing an Offence & ASAP after taking possession Take all reasonable steps to; Destroy or Deliver to a person lawfully entitled to take custody
Special Defence 2 (Possession Only) To Deliver the drug to a person lawfully entitled to take custody (Teacher Example) Know/Suspect it to be a controlled drug Took Possession and ASAP Take all reasonable steps to; Deliver to a person lawfully entitled to take custody
R v Murphy (Decomposition) The destruction must be immediate. i.e. you cannot bury the drugs in the hope they will be destroyed by decomposition
3 General Defences Section 28 MODA 1971 Relate to which offences? C.O.P.P.I.S C - Cultivation of Cannabis O - Opium Offences P - Possession P - Production (Unlawful) I - Intent to Supply S - Supply
3 General Defences are the; F.E.D. F - Facts (lack of knowledge) E - Entitled to posses (Belief) D - Drug (lack of knowledge)
F - FACT Did not know Did not suspect Had no reason to suspect (R v Young - reasonable, sober person) Delivery driver - delivers routine package. Would have a defence under FACT as he would have no reason to know/suspect the controlled drug. (What if they work for an OCG?)
E - Entitled Belief of entitlement Belief it was a controlled drug Belief it had been That/A particular controlled drug I have a prescription for Temazepam, the chemist mistakenly gave me Diazepam I could use the defence I believed it was Temazepam, which by prescription I am entitled to possess.
Unlawful Production of Controlled Drug Class A, B, C Either Way Offence
Class A Penalty in Crown Court Life And/or Fine Class A Penalty in Mags Court 6 Months And/or Prescribed Sum
Class B Penalty in Crown Court 14 Years And/or Fine Class B Penalty in Mags Court 6 Months And/or Fine
Class C Penalty in Crown Court 5 Years and/or Fine Class C Penalty in Mags Court 3 Months And/or Fine
Definition; It is an offence to either; Produce; (manufacture, cultivate or harvest)
Be concerned in the production of a Controlled drug.
R v Russell (Converting) Converting one type of class A drug into another type of class A drug will amount to production.
Controlled drugs must actually be produced... However, a failed attempt to produce may still be convicted of attempting to produce. To be concerned in the production; It is sufficient to prove ingredients were delivered and the deliverer knew what they were for. An active part must be played, (allowing your house to be used may not amount to being concerned in the production)
Unlawfully Supplying Controlled Drug Class A, B & C Either Way Offence
Class A Penalty in Crown Court Life And/or a fine Class A Penalty Mags Court 6 Months And/or fine
Class B Penalty in Crown Court 14 Years And/or Fine Class B Penalty in Mags Court 6 Months and/or a fine
Class C Penalty in Crown Court 5 Years and/or fine Class C Penalty Mags Court 3 Months and/or a fine
It is an offence to either; Supply
Be concerned in the supply; Offer to Supply;
Be concerned in making an offer to supply; A Controlled Drug.
To 'Supply' 3 elements must be present 1. Transferring control of a drug
2. Recipient being in a position to utilise the drug for their own purposes 3. Knowledge by the suspect that the act involved the supply of a controlled drug.
An Obvious example... The sale of drugs Safekeeping only R v Dempsey & Dempsey No Benefit = No offence (of supply) (until the drugs are handed back?)
R v Maginnis Benefit (Payment) Reward (Cut of drugs) For holding drugs then supply complete. Holder > Benefits > Supply Complete
R v Harris Injecting a person with their own drugs (No Supply) R v Buckley (Division of joint purchase - Supply)
Offer to Supply 2 Elements 1. An Offer to Supply is Made
2. Knowledge by the suspect that the actions involved offering to supply a controlled drug R v Goodard Ability to Supply > Not Required Intention to carry out offer > Not required Making the offer only > Offence Complete
What if... Substance is not really a drug? Offence (Offering to supply) complete Even if buyer knows it isn't a drug
Concerned in the supply.. 3 requirements 1. An Act of; Supplying Offering to supply
2. Participation of the suspect 3. Guilty Knowledge of the suspect
To be concerned in the supply the suspect must... Play an active part
PWITS (Possession with intent to Supply) Class A, B & C Either Way Offence
Class A Penalty in Crown Court Life and./or fine Class A Penalty in Mags Court 6 Months and/or prescribed sum
Class B Penalty in Crown Court 14 Years and/or fine Class B Penalty in Mags Court 6 Months and/or prescribed Sum
Class C Penalty in Crown Court 14 Years and/or fine Class C Penalty in Mags Court 3 Months and/or fine
It is an offence to possess a controlled drug either; Lawfully Unlawfully With intent to unlawfully supply it to another (Intent offence - No result required)
R v Leeson (Nature of the drug mistaken) Posses a controlled drug (lawfully or Unlawfully) Intend to Supply Unlawfully (Offence complete - No result required)
Cultivation of Cannabis Section 9 MODA 1971 Either Way Offence
Penalty in Crown Court 14 Years and/or a fine Penalty in Mags Court 6 Months and/or a prescribed sum
Cultivation takes place when attention is given to a plant; What is attention? Watering Feeding Artificial Lighting
2 elements required for the offence to be complete... 1. The plant is cannabis (Irrelevant if the suspect knew this was the case. R v Champ) 2. Was the cultivation unlawful?
Controlled drugs on premises... Class A, B and C Either Way Offence
Class A Penalty in Crown Court 14 Years and/or a fine Class A Penalty in Mags Court 6 Months and/or prescribed sum
Class B Penalty in Crown Court 14 Years and/or a fine Class B Penalty in Mags Court 6 Months or prescribed Sum
Class C Penalty in Crown Court 14 Years and/or a fine Class C Penalty in Mags Court 3 Months and/or a fine
Prohibited Activity P.C.S.O P. Production (+ attempt) C. Cannabis or opium (smoking) S. Supply (+ attempt) O. Opium - preparing for smoking
Offence committed by either; Occupier or Person concerned in the management of a property
who knowingly (is or should be aware) either... Permits or Suffers (R v Thomas)
Any Prohibited activity to take place Is guilty of an offence
A result is required.... Paraphernalia and cannabis being present is not enough. Suspect must be producing, smoking, supplying or preparing
Closure Notices Section 1 ASB Act 2003 Supt (or above) Reasonable grounds to believe both;
The premises has been used for unlawful; Use Production Supply Of Class A Drug During the previous 3 months The use is associated with; Disorder Serious nuisance to the public
Can authorise the issue of a closure notice if both; 1. The local authority consulted 2. Reasonable steps have been taken to identify anyone; Residing in In control of With responsibility for an interest in (the premises)
Supt's authorisation maybe Orally or In writing If Oral must be confirmed in writing ASAP
The closure notice must be served by; A Police Officer
What is premises in relation to the ASB Act 2003? Enclosed Land Unenclosed land Any other place/outbuilding used as part of a premises
6 Points a closure notice must provide.. 1. An application will be made to close 2. Access prohibited (excl. resident/owner) 3. Date/Time/Place app will be heard 4. Effect of the closure 5. Failure to comply is an offence 6.Info regarding housing organisations to offer advice
Serving a notice... A Police officer must;
Step 1 Fix a copy of the notice to; At least one prominent place At each normal means of access Any outbuilding which appears to be used with the premises
Step 2 Give a copy of the notice to at last one person who either; Has control Has responsibility Lives on premises
Once closure notice issued, a police officer must apply for a closure order at Mags Court. This must be heard before 48 hours after the notice was issued Mags may then adjourn for up to 14 days to allow persons with an interest to contest the application.
To issue a closure notice Mags must be satisfied... 1. The premises have been used for unlawful production, supply, use of Class A
2. The use of the premises is associated during the period of the notice with either; Disorder Nuisance 3. The order is necessary to prevent reoccurrence of disorder or nuisance
A closure order closes a premises (or part of) to all persons for a period decided by the court; Max initial; 3 Months 3 Month extension may be applied for prior to expiry of initial order (Supt must provide authority for further closure after consultation with local authority)
A Police officer or Authorised Person May enter a closed premises at any time to; Carry out maintenance or repairs or Secure the premises against entry Using reasonable force if necessary
If challenged by either; The Owner The occupier They must produce evidence of both their; Identity Authority to act.
Breach of a closure order Summary Only Penalty Mags Court ]6 Months and/or fine A person commits this offence is either;
Without reasonable excuse; Remains on premises or Enters the premises In contravention of an order, OR Obstructs a police officer/authorised person exercising their power of entry (no provision for reasonable excuse)
Import/Export Controlled Drugs Class A, B & C Indictable only
Class A penalty at Crown Court Life Class B & C Penalty at Crown Court 14 Years
It is an offence to either; Import OR Export
Controlled drugs Unless authorised to do so.
Assisting/Inciting offences outside of UK If inside the UK a person; Assists Induces Incites the commission of an offence outside of the UK breaking laws in the other place will commit an offence.
Result required. R v Evans (empty lorry)
Enforcement, Stop & Search Section 23 MODA 1971 Reasonable grounds to suspect a person is in possession of controlled drugs;
1. Detain/Search any person 2. Stop, detain, search any Vehicle/Vessel 3. Seize anything offending under the act What is a vessel?
Warrants... (A warrant must be specific to search a premises and persons of people are to be searched) If Mags satisfied on oath reasonable grounds to suspect either;
1. Controlled drugs are unlawfully in the possession of a person on premises 2. A document is in the possession of a person on premises that relats to; An unlawful transaction or dealing In or outside of the UK
Obstruction Section 23 MODA 1971 Offence committed by a person who either; 1. Intentionally obstructs a person 2. Intentionally conceals books, documents, Stocks or Drugs 3. Without reasonable excuse fail to produce books/documents when demanded.
Travel restriction orders Section 36 Criminal Justice and Police Act 2001 TRO's can be imposed of a person convicted of drug trafficking offences
TRO's Prohibit the suspect from leaving the UK; From the time they leave custody To the expiry of the order.
Minimum Period? Two Years
May require; Passport to be surrendered
The court MUST consider a TRO where two criteria are met; 1. The person has been convicted of a trafficking offence 2. The person has been sentenced to 4 or more years
A person is guilty of contravening a TRO when; 1. They leave the UK when prohibited They are not in the UK at the end of a period of restriction which has been suspended.
Note it is within UK (Incl Scotland + N.Ireland Do not have to leave voluntarily (Aeroplane) If deported by Home Secretary offence is not committed.
Intoxicating Substances Section 9A(1) MODA 1971 Supplying articles for administering controlled drugs Section 9A(3) MODA 1971 Supplying articles for preparing controlled drugs
9A(1) - Supplies/Offers to supply 9A(3) - Supplies/Offers to supply 9A(1) - Articles (Used/Adapted) for unlawful administration of controlled drugs for self or another 9A(3) - Article used to prepare controlled drug for unlawful administration for self or another
9A(1) - Believing the article will be used 9A(3) - Believing the article will be used 9A(1) - Summary Only (6 Months and/or fine) 9A(3) - Summary Only (6 Months and/or fine)
Does not include Hypodermic Needles The administration must be unlawful
Supply Intoxicating Substances Section 1 Intoxicating Substances (Supply) Act 1985 Either Way C/Court - 5 Years and/or fine M/Court - ^ months and/or fine
Offence; To Supply Offer to Supply A substance other than a controlled drug..
To a person they know or have reasonable cause to believe is under 18 A person acting on behalf of an under 18 and they know or has reasonable cause to believe is acting that way
If they either know or have reasonable grounds to believe that the substance or its fumes will be inhaled by an under 18 for the purpose of intoxication A defence will be available where both;
The substance was supplied by an under 18 and... They were not acting in the course of a business.