Production

The two main production offences are:

• Production of a controlled drug; and,
• Being concerned in the production of a controlled drug.

Production is defined as ‘manufacturing, cultivating or production by any other method’. For example, separating those parts of the cannabis plant which are not usable from those which are, is considered preparation and, therefore, can amount to the offence of production.

Preparation is any process that puts a substance into a form suitable for consumption.

In this context the word ‘concerned’ means contributed to an identifiable part of production of the drug.

The elements of the offence of being concerned in the production of a controlled drug are:

1. A controlled drug was produced; and,
2. There is a link between the suspect and production process (provision of equipment or suitable premises); and,
3. The suspect knew that a controlled drug was being produced.

Cannabis Production

Cultivating a cannabis plant can be charged as a separate and specific offence of cannabis cultivation under section 6(2) of the Misuse of Drugs Act 1971. However, the CPS may still charge you with a general production offence. Production is classified as a ‘trafficking’ offence. This allows for authorities to order a POCA (Proceeds of a Crime) hearing. POCA provides the courts with scope to confiscate the proceeds of a crime where a defendant is shown to have benefited from their criminal conduct. Often the police will charge a person suspected of growing cannabis with a production offence rather than a cultivation offence so that a proceeds of crime investigation can be initiated.

Penalties available for production offences

The Production of a controlled drug / Cultivation of cannabis plant Sentencing Council guidelines outline the range of sentences available for cultivation of cannabis 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: Discharge – 8 years’ custody

If you have been arrested or charged for a drugs offence call or email Release for free and confidential advice.

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.  

Production of a psychoactive substance is an offence under section 4 of the PSA 2016 and has its own Sentencing Council Guidelines here:

Producing a psychoactive substance

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.