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Being caught out in possession of drugs is a situation no one wants to be in. If this has happened to you, you are probably feeling fearful of the possible impact upon your family and work life. Luckily, if you are a first-time offender, this could significantly reduce the sentence that you are likely to face. When deciding whether to expend time and public resources upon prosecuting drug users, the police and the courts are required to consider the public interest. Before laying a charge, the prosecutor must be satisfied that there is sufficient evidence to result in a realistic prospect of conviction. The prosecutor must also be satisfied that the prosecution is in the public interest. This will include looking at the impact of the prosecution and any possible conviction upon the defendant and any dependants in their care. This test means that for first time offenders in possession of a small amount of Class A drugs, it is quite likely that the police and CPS will decide not to prosecute and will instead deal with the case by way of an out of court resolution. We go into this possibility in more detail here.
Possession of a controlled drug is an offence pursuant to Section 5(2) of the Misuse of Drugs Act 1971 (MDA). Possession is understood to mean the physical possession of a substance.
Drugs that are controlled are set out at Schedule 2 of the MDA. This sets out Class A, B, and C drugs. Class A drugs include crack cocaine, cocaine, ecstasy (MDMA), heroin, LSD, magic mushrooms, methadone, and methamphetamine (crystal meth).
It is a defence if you can show that you did not know that you were in possession of the drug. It is also a defence if you can show that you were aware that you were in possession of the substance, but you did not know it was a drug. When deciding the credibility of this defence, the court will look at the circumstances in which the drug was acquired or possessed, and whether it was concealed. The supplier of the drug being close by will also be a relevant consideration. Also, if you have previously been convicted of drug offences, this defence is less likely to be believed.
If you are caught with Class A drugs, the police will probably caution and arrest you. In all likelihood, they will seize the substance and test it to determine what it is. When you arrive at the police station, you will be booked in by the custody sergeant. The custody sergeant will ask you if you wish to have anyone informed of your arrest. You will also be informed of your right to legal advice and asked whether you would like to have a legal representative present. Even if you do not think that you have committed a serious offence, it is a good idea to obtain legal advice.
When the police station representative arrives at the police station, you will have the opportunity to speak with them privately before the police interview starts. Before the investigating officer interviews you, you will be read another police caution. During the interview, your legal representative is entitled to intervene if the police are not behaving in accordance with the law. Your police representative may advise you to remain silent or answer ‘no comment’ and instead hand a written statement to the police.
Once the interview has been completed, the police will make a charging decision on your case. The options are that the police could acquit you, they could charge you with the offence of possession of Class A drugs, or they could issue you with an out of court disposal such as a caution or a community resolution.
If you are charged, you will need to appear before the Magistrates’ Court. The offence of possession of a controlled drug is triable either way. This means that the trial could be heard in the Magistrates’ Court or the Crown Court depending on the severity of the offence. The Magistrates’ Court will consider the quantity of drugs you are accused of possessing and whether its sentencing powers are adequate. If you are in possession of a large quantity of drugs, the case could be sent to the Crown Court. Otherwise, you will be given the option of whether your case is heard in the Magistrates’ Court or the Crown Court.
You should discuss this decision carefully with your criminal defence solicitor. Although you could face a longer sentence in the Crown Court, you are less likely to be convicted by a jury in comparison with a District Judge in the Crown Court.
The maximum sentence for possession of Class A drugs is 7 years’ imprisonment. However, in practice, especially if you are a first-time offender, you are highly unlikely to receive such a severe sentence. The starting point for possession of a Class A drug is a Band C fine. This is a fine that comprises 150% of your weekly income. The usual sentence range is between a Class B fine (100% of your weekly income) and 51 weeks’ custody.
In order to arrive at your sentence, the court will consider aggravating and mitigating factors relevant to your case. Parliament has declared that previous convictions, especially if they are recent and are related to drug offences, will serve as an aggravating factor. If the offence was committed whilst on bail, this will also increase the sentence that is given. Other aggravating factors include if you were in possession of the drugs in or near a school, or whilst in prison. If you were in possession of the drugs while you were with children, this is also considered to be an aggravating factor.
Mitigating factors are factors relevant to your case that can reduce the sentence that is given. These often relate to your personal circumstances. For example, if you are suffering from mental illness or you care for a dependent relative. These serve as arguments against giving you a prison sentence. The court will also consider if you have shown remorse, if you are of good character, and if you have taken steps to address your drug taking behaviour.
The court will also take into account factors that could explain why you have pursued the use of drugs. For example, if you suffer from a serious medical condition that requires urgent, intensive, or long-term treatment.
From there, the court is empowered to reduce your sentence to acknowledge a guilty plea. This is not guaranteed, but generally the earlier you plead guilty, the greater reduction in sentence you could benefit from. Your sentence can be reduced by a maximum of one quarter or a minimum of one tenth of its total length depending on at what stage in criminal proceedings you plead guilty. For more information, see the Sentencing Council guide to guilty pleas here.
Finally, the court will consider whether a sentence reduction is needed to acknowledge time spent on bail. This only applies where you were subject to a curfew or electronic monitoring condition.
If you are a first-time offender caught in possession of a small amount of Class A drugs for personal use, the good news is that you are unlikely to be sent to jail. You could get an out of court disposal such as a community resolution or a conditional caution. There is no set amount of drugs that will lead to the police giving you an out of court disposal: it all depends on the circumstances. You can challenge the decision for the police to charge you instead of giving you an out of court disposal. You should speak to your criminal defence solicitor about this.
You could also receive an absolute or conditional discharge from the court. An absolute discharge means that you do not receive any punishment whatsoever. Meanwhile, a conditional discharge means that you will not receive a punishment provided that you are not prosecuted for further offences within the next 12 to 18 months. However, if you are convicted of a subsequent offence, then you can also be sentenced for the possession offence.
This information relates to simple possession offences. If you are charged with possession with intent to supply, this is a more serious offence, and it is likely that you could face prison time.
If you have been arrested and charged in relation to possession of Class A drugs, Stuart Miller Solicitors can help. We have defended thousands of individuals charged with drug offences. We will advise you in respect of any possible defences that you may be able to rely upon. You could even get your case dropped before court! Contact us for a no obligation consultation today.