Possession with Intent to Supply
It is an offence for a person to have a controlled drug in their possession, whether lawfully or not, with the intent to supply it to another who has no legal right to possess it, without lawful authority to do so.
Supply is the simple act of passing a controlled drug from one person to another. It does not matter if it was for profit or not. The issue of financial gain is only relevant for the purposes of sentencing. Supply can, therefore, range from passing a joint between friends to large scale supply of crack cocaine for profit.
Defending a charge of intent to supply
A person charged with possession with intent to supply can enter a guilty plea to the charge of possession and not guilty to supply, on the grounds that the drugs seized were for personal use. At this point the prosecution may cite evidence to attempt to prove guilt. Prosecutions for this offence may be based on circumstantial evidence, statements made by the defendant at the time of arrest and expert evidence.
Examples of relevant circumstantial evidence would include the possession of drug supply paraphernalia such as scales, bags, cling film and large sums of unexplained cash. The manner in which the drugs were wrapped could also be used as evidence of intent to supply, or to support the defendant’s case (if the offence is denied) that the drugs were for personal use.
Statements at the time of arrest can be important. For example, a young person who is caught in possession of two ecstasy tablets and tells the police, ‘I was holding them for a friend,’ could face a charge of possession with intent to supply.
In many cases the prosecution case will be built largely on the quantity of drugs seized, on the basis that the quantity was so large that it could not have been for personal use. Expert evidence can be crucial in such cases to help the court to determine whether this is the case.
Sentencing
Sentencing for any supply case is complicated and will depend on the quantity of drugs involved and the role of the offender – for example, social supply as opposed to supply for financial gain. Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another outlines the range of sentences available for supply cases:
Class A
- Maximum: Life imprisonment
- Offence range: High level community order – 16 years’ custody
Class B
- Maximum: 14 years’ custody and/ or unlimited fine
- Offence range: Band B fine – 10 years’ custody
Class C
- Maximum: 14 years’ custody and/ or unlimited fine
- Offence range: Band A – 8 years’ custody
Psychoactive Substances Act
The Psychoactive Substances Act 2016 was introduced in response to “legal highs”. It applies to any psychoactive substances, defined in section 2 of the Act as anything capable of producing a psychoactive effect by stimulating or depressing the central nervous system. The Psychoactive Substances Act 2016 therefore covers novel substances entering the market before they are specifically controlled under the Misuse of Drugs Act 1971. The definition is deliberately broad and creates grey areas.
Although possession of a psychoactive substance is only prohibited in a custodial institution under the Psychoactive Substances Act 2016, possession with intent to supply remains an offence. There are separate Sentencing Council Guidelines for the offence here:
Defence (section 28 Misuse of Drugs Act 1971)
A defence under section 28 of the Misuse of Drugs Act 1971 only applies to certain offences under the Act, namely:
- Production, or concerned in the production, of a controlled drug (section 4(2));
- Supply, or concerned in the supply, of a controlled drug (section 4(3) – a section 28 defence does not apply to cases where the offence is ‘offer to supply’);
- Possession of a controlled drug (section 5(2));
- Possession with intent to supply (section 5(3)); and,
- Cultivation of cannabis (section 6(2)).
A section 28 defence can be presented when a suspect can show:
- They neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove; for example, that they were in possession of the drug; or,
- They neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug; or,
- That they believed the product to be a controlled drug, which had it been that drug, would mean that no offence would have been committed. For example, this would apply to situations where the defendant was in possession of a controlled drug which they thought they had lawful authority to possess – for example, steroids, which are legal to possess for personal use without prescription under Schedule 4(2) as amended by the Misuse of Drugs Regulations 2001 – but in fact were in possession of an MDMA pill.