Introduction

Although possession of controlled drugs with intent to supply may seem simple at first, it can in fact be very complex. Cases are often far more nuanced than initial appearances suggest.

Issues that I often deal with on behalf of clients include the location at which the drugs are found, issues relating to possession, knowledge and whether there was an intention to supply. In many cases, the central issue is not whether drugs existed, but whether the prosecution can prove that the accused knowingly possessed them and intended to supply them to another.

Far from being straightforward, the facts are often heavily dependent upon legal issues relating to inference and circumstantial evidence and judicial interpretation. Questions frequently arise concerning what amounts to possession, what level of knowledge is required, whether drugs found in shared premises can properly be attributed to a defendant, and when the quantity discovered, or surrounding evidence is sufficient to establish an intention to supply rather than personal use.

I have put this article together to assist the layperson in understanding this offence.

What is the offence of possession with intent to supply?

The offence is created by section 5(3) of the Misuse of Drugs Act 1971. In broad terms, as the description of the offence makes plain, a person commits the offence if they possess a controlled drug with the intention of supplying it to another person.

The prosecution must therefore prove two separate elements:

• That the defendant was in possession of a controlled drug; and
• That the defendant intended to supply it to another.

The offence is different to simple possession. A person may admit possessing drugs while denying any intention to supply them. In many trials, that distinction becomes the central issue.

What does ‘possession’ of drugs mean?

One of the most misunderstood features of this area of the law is the concept of possession. 

The law does not solely ask whether drugs were physically upon the person of, or near a defendant. The issue is more complicated.

A person may have drugs on their person or be physically close to drugs without legally possessing them. Conversely, a person may legally possess drugs even if they are not physically holding them.

Possession generally includes anything within a person’s physical custody or control. However, the courts have repeatedly emphasised that possession ordinarily contains a mental element as well.

The leading Court of Appeal authorities repeatedly refer to the distinction between mere custody and true possession. The prosecution must normally establish both physical control and a sufficient degree of knowledge.

The courts have described possession as involving knowledge of the item’s presence, some degree of control over it and the opportunity to discover in a general sense what the item was.

This becomes particularly important in cases involving shared houses, borrowed vehicles, drugs found in luggage and drugs concealed by third parties.

Can you be guilty if you did not know the drugs were there?

Generally speaking, this is not the case. The courts have repeatedly confirmed that a person does not possess something that has been placed into their pocket, bag, home or vehicle without their knowledge.

The issue becomes more difficult where the prosecution argue that the defendant deliberately ignored obvious signs or had the opportunity to discover what was present.

The courts have held that possession may still be established where a defendant knew they possessed a package or container and knew it contained something, even if they claimed not to know the precise nature of the contents.

A classic example arises where a defendant claims “I was asked to look after a package, but I didn’t know it contained drugs.”

Whether that explanation succeeds will usually depend upon the surrounding circumstances.

What if the defendant thought the drugs were something else?

The authorities draw an important distinction between a mistake about the quality of the substance and a mistake about the nature of the item altogether.
For example, a person who thinks they possess cannabis when in fact they possess heroin may still legally possess heroin.

However, where the defendant genuinely believed the item was something entirely different in kind, the position may be different. The issue is usually one for the jury to determine.

What if I have forgotten that I had the drugs?

As a matter of law, you still possess something that you knew you had possession of but then forgot about. If, for example, I have a wrap of cocaine in my wallet but forget that it is there then I will still be guilty of possessing it if it is discovered by the Police.

Can drugs found in a shared house be attributed to everyone living there?

Not automatically. This is often one of the most important issues in drug prosecutions.

The prosecution frequently rely upon the fact that a defendant occupied or lived at premises where drugs were discovered. However, the Appellate courts have warned against automatically making such assumptions.

In one leading authority, the Court of Appeal overturned the conviction of a woman who lived with a drug dealer where there was insufficient evidence that she exercised custody or control over the drugs themselves. Mere knowledge that another person was dealing drugs was not enough. 

The prosecution must ordinarily establish more than mere association. This is firmly rooted in the facts of the case but in cases that I have been involved in the issues often include matters such as 

• whether the drugs were hidden or openly accessible
• whether the defendant had keys or control of the premises
• forensic evidence
• text or telephone evidence
• financial evidence
• observations of drug dealing activity
• admissions
• evidence linking the defendant to packaging or storage

What evidence is commonly relied upon to prove intent to supply?

Mere possession of drugs is not enough to prove the offence, the prosecution must also prove the intent to supply limb of the offence. To do this they will often rely upon surrounding evidence said to demonstrate commercial dealing activity.
This may include:

• large quantities of drugs
• multiple wraps or deals
• weighing scales
• snap bags or packaging
• burner phones
• customer contact lists
• large quantities of cash
• debt lists or tick lists
• encrypted communications
• surveillance evidence
• forensic examination of telephones

Of these the most commonly contested area is where the prosecution invite the court to infer that the quantity possessed was inconsistent with personal use.

Does quantity alone prove intent to supply?

It can but it does not always. Quantity is obviously highly relevant, but it is not automatically determinative.

I will often call expert evidence to rebut prosecution assertions relating to intent, this will cover areas like the values and purity of the drugs, potential levels of personal consumption, the way the drugs are packaged and typical dealing quantities.

Evidence on these issues can itself become difficult, if conclusions are based primarily on anecdotal or hearsay material.

In some cases, heavy users may possess quantities that appear substantial but are genuinely intended solely for personal use.

Can cash or an expensive lifestyle be used as evidence?

One recurring feature of drug prosecutions is prosecution reliance upon cash seizures, luxury goods or evidence of spending said to be inconsistent with legitimate income. The courts have held that evidence of substantial cash or an extravagant lifestyle may be admissible where it is probative of drug dealing activity.

However, the courts have also warned against unfair stereotyping.

For example, the Court of Appeal have criticised proposed assumptions based merely on the use of BMW vehicles or mobile telephones, noting that such features are not unique to drug dealers and judges are expected to direct juries carefully regarding the proper use of such evidence.

Importantly, ‘bad character’ evidence or any evidence that a person may previously have dealt drugs is not automatically evidence that they possessed drugs on the occasion charged. This is often the ground of significant legal argument between prosecution and defence. 

What powers do police have to search for drugs?

Police powers primarily arise under section 23 of the Misuse of Drugs Act 1971

Where officers have reasonable grounds to suspect possession of controlled drugs then they may search a person, detain them for the purpose of searching, search vehicles or seize items that appear to be evidence of offences having occurred.

Search warrants may also be obtained permitting entry and search of premises.

In many cases, challenges arise concerning:

• whether reasonable suspicion genuinely existed
• failures to comply with PACE requirements
• unlawful detention
• defects in warrants
• unlawful seizure procedures

Search and seizure issues can become highly significant in Crown Court litigation, particularly where the prosecution case depends heavily upon evidence obtained during searches.

What defences arise in possession with intent to supply cases?

Potential defences will vary depending upon the facts and you should consider getting specialist legal advice if you face prosecution in these sorts of case. However, common defence arguments include:

Lack of knowledge - The defendant denies knowing the drugs existed.

Lack of control - The defendant knew drugs existed but had no custody or control over them.

Personal use rather than supply - The defendant accepts possession but disputes any intention to supply.

Drugs belonging to another - The defendant argues the drugs belonged exclusively to somebody else.

No opportunity to discover the nature of the item - This often arises in package or courier cases.

Temporary innocent possession - Section 5(4) of the Act provides limited statutory defences where a person takes possession of drugs solely to prevent offending or to surrender them to lawful authorities but the courts construe these provisions narrowly.

Can more than one person jointly possess drugs?

The law recognises the concept of joint possession. However, mere presence or knowledge is insufficient. The prosecution must prove a shared right of control over the drugs.  Appellate courts have ruled that when considering this issue courts may often consider whether the drugs formed part of a common pool from which all parties could draw. Again, these cases are highly fact dependant.

What sentence can be imposed for possession with intent to supply?

Possession with intent to supply is treated extremely seriously by the courts. There are sentencing guidelines in place which dictate what sentence would usually be passed upon conviction.

Sentences vary dramatically depending upon:

• the class of drug (A, B or C)
• the quantity
• the role performed
• if there is commercial sophistication
• if there is exploitation of others
• previous convictions
• evidence of organised criminality

Drug supply offences will often be treated as lifestyle offence for the purposes of confiscation proceedings under the Proceeds of Crime Act 2002 and this is worth bearing in mind. POCA is a complex area which I have written about and it is worth getting legal advice if you think that it may apply to you. 

If you find yourself facing investigation or prosecution for a drug, or drugs supply offence you may wish to secure top-quality representation.

Quentin Hunt is a criminal defence barrister who has over 26 years’ experience in defending drug supply prosecution and is known as an shrewd and effective operator within this area.

Quentin accepts instructions either through solicitors or directly from members of the public. 

You may contact Quentin for a free, no obligation conversation about your case. Quentin does not accept instructions through the legal aid scheme.   

Frequently Asked Questions About Possession With Intent to Supply