Drugs, Alcohol and Substance Misuse

Question 1

Drunkenness is an offence in what circumstances?

Answer 1

s 12 of the Licensing Act 1872

Every person found drunk in any highway or other public place, whether a building or not, or on any licensed premises.

Drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine.

or who is drunk when in possession of any loaded firearms.

Question 2

The Oxford English Dictionary defines drunk as…

Answer 2

‘Having drunk intoxicating liquor to an extent it affects steady self-control’.

Question 3

Drunkenness as an offence penalty

Answer 3

Triable summarily and penalty is one months imprisonment and/ or a fine.

Question 4

What legislation covers drunk and disorderly behaviour?

Answer 4

s 91(1) of the Criminal Justice Act 1967

It is a summary offence for any drunken person to display ‘disorderly behaviour’ in any highway, public place, or licensed premises.

The penalty is a fine, a penalty notice, or one months imprisonment.

Question 5

Drunk in charge of children legislation offence

Answer 5

s 2 of the Licensing Act 1902

It is an offence for a person to be drunk ‘while having charge of a child under the age of 7 years in any highway, public place, or licensed premises’.

The suspect must be the only person with the child, or alternatively everyone in a group with the child must be drunk.

This is a summary offence and the penalty is one month’s imprisonment or a fine.

Question 6

Controlled drinking zones

Under what legislation can a local authority designate an area as a ‘controlled drinking zone’ to help control anti-social behaviour?

Answer 6

Under s 235 of the Local Government Act 1972

It is an offence to fail to comply with a request to surrender alcohol or to cease drinking.

Note the Home Office advice that ‘it is not appropriate to challenge an individual consuming alcohol where that individual is not causing a problem’ (Home Office, 2009b).

Triable summarily and the penalty is a fine, often imposed through a penalty notice.

Question 7

The Confiscation of Alcohol (Young Persons) Act 1997

Section 1 (1) of the Act states that where a constable reasonably suspects that a person in a relevant place is in possession (can be nearby) of alcohol and that either:

Answer 7

i) he is under 18 or
ii) he intends that any of the alcohol should be consumed by a person under the age of 18 in that or any other relevant place or
iii) a person under the age of 18 who is, or has recently been, with him has recently consumed alcohol in that or any other relevant place

Then that person may be required to surrender anything in [his/her] possession which is reasonably believed to be alcohol or a container for such liquor.

Failure to surrender and refused consent to search provides the officer with the power to detain.

Triable summarily and the penalty is a fine.

Question 8

Under s 1(1) of the Confiscation of Alcohol (Young Persons) Act 1997 what constitutes a ‘relevant place’?

Answer 8

Any public place, for example streets, parks, and shopping centres (but not on licensed premises such as pubs or clubs); and

A place to which the person has unlawfully gained access, such as gate-crashing a party at a private house.

Question 9

It is an offence under what legislation for a person under 18 to be in possession of alcohol without reasonable excuse in any relevant place on three or more occasions within a year?

Answer 9

s 30 of the Police and Crime Act 2009.

Liable on summary conviction to a fine not exceeding level 2 on the standard scale.

Question 10

The Licensing Act 2003 includes legislation to address drunkenness in ‘relevant premises’.

Relevant premises in this context are what?

Answer 10

Premises where alcohol can be sold by retain (e.g a pub or a shop)

Club premises with a certification (e.g a working men’s club where alcohol is supplied by or on behalf of a club to members)

Premises with ‘permitted temporary activity’ e.g a village hall hired out for a wedding reception.

Question 11

Staff managing or working in places where alcohol is served have a legal responsibility to try to prevent drunkenness and disorder.

People with these responsibilities are listed in s 140(1) of the Licensing Act 2003, and are referred to here as responsible staff. They include:

Answer 11

The holder of a premises license

The designated supervisor of a licensed premises

Any person who works at the premises in a capacity which authorises him/her to prevent disorderly conduct.

Any member or officer of a club (with a club premises certificate) who has the capacity to prevent disorderly behaviour; and

the user of a premises with permitted temporary activity, at the permitted time.
.
.
Penalty is a fine.

Question 12

A drunk and disorderly person commits a summary offence under s 143(1) of the Licensing Act 2003 if without reasonable excuse he/she:

Answer 12

Fails to leave relevant premises (when requested to do so by a police officer or a responsible staff member) or

Enters (or attempts to) relevant premises having been requested not to enter.
.
.
s 143(4) of the Licensing Act 2003
- Force can be used to encourage compliance.

Question 13

An offence is committed by anyone who obtains or attempts to obtain alcohol for a drunken person in relevant premises under what legislation?

Answer 13

s 142(1) of the Licensing Act 2003.

Question 14

What legislation provides power of entry to any place if there is reason to believe that an offence under the Licensing Act 2003 is being committed or about to be?

Answer 14

s 180(1) of the Licensing Act 2003.

Reasonable force can be used (s 180(2))

Question 15

For premises (or any other place) with a club premises certificate, there is a similar power of entry (as s 180(1) of the Licensing Act 2003), if there is reasonable cause to believe that…

Answer 15

• An offence, relating to supplying a controlled drug has been committed, or is about to be, or is being committed at the moment (s 97 (1)(a))
• A breach of the peace may occur (s 97 (1)(b))
  .
  .
  Reasonable force may be exercised for this power (s 97(2)).

Question 16

For premises with permitted temporary activities, may a police officer enter?

Answer 16

s 108(1) of the Licensing Act 2003

Yes, at any reasonable time to assess the effect of the event in relation to prevention of crime and disorder, public safety, the prevention of public nuisance, and the protection of children from harm.

There is no specific offence of obstructing an officer under s 108 but an offence under Police Act 1996 could be considered (obstruction on the lawful execution of police duties).

Question 17

Alcohol cannot be legally sold to a person under the age of 18. It is an offence to:

Answer 17

s 146(1) of the Licensing Act 2003- sell alcohol to a person under 18 in any place.

s 147(1) of the Licensing Act 2003- knowingly allow the sale of alcohol on relevant premises to an individual aged under 18.

Question 18

Alcohol cannot be legally sold to a person under the age of 18.

A further more serious offence is committed if…

Answer 18

(s 147A of the Licensing Act 2003)

On two or more occasions (within three consecutive months) alcohol is unlawfully sold on the same licensed premises to a young person under 18.

These offences are triable summarily and the penalty is a fine.

Question 19

Give some examples of Class A, B and C drugs.

Answer 19

Class A: Ecstasy, heroine, cocaine, crack cocaine, magic mushrooms, crystal meth, LSD.

Class B: Cannabis leaves, cannabis resin, spice, mephedrone, amphetamines and barbiturates.

Class C: Khat, tranquillisers, anabolic steroids and some painkillers.

Question 20

What is the definition of a psychoactive substance?

Answer 20

(s 2(1)(a) of the Psychoactive Substances Act 2016).

Any substance (other than controlled drugs, alcohol or tobacco) which is capable of producing a psychoactive effect in a person who consumes it.

Question 21

In recent years, many new psychoactive substances (NPS) (legal highs) have been manufactured.

Why may have this occurred and what are some examples?

Answer 21

Perhaps with a view to circumnavigating the controlled drugs legislation.

Spice (a synthetic cannabinoid), GBL (gamma butryolacetone) and GHB (gamma hydroxybutyrate).

Question 22

In recent years, many new psychoactive substances (NPS) (legal highs) have been manufactured.

Is it an offence to carry an NPS?

Answer 22

No, except in a custodial institution (s 9 of the PSA 2016), but there are dedicated police powers to stop and search for substances.

Question 23

In order to commit the offence of unlawful possession, a person must:

Answer 23

(s 5(2) of the Misuse of Drugs Act 1971)

…unlawfully have a controlled drug in [his/her] possession.

Question 24

Control of a substance is indicated by the rights the person has over the substance, and generally amounts to ownership. It would include:

Answer 24

• Items found on a person (eg jacket pocket).
• Items found in a person’s property
• Items a person has ordered and paid for but has not received yet.

…knowledge of the existence of the substance is also required.

Question 25

Some exemptions permit possession of a controlled drug.

Where are these exemptions provided and who may have access to them?

Answer 25

Under the Misuse of Drugs Regulations 2001 and made by the Home Secretary Under s 7 of the Misuse of Drugs Act 1971.

Doctors, pharmaceutical trade, patients who have been prescribed them.

Also, police officers police support employees, customs officers and postal workers are allowed under Regulation 6 to possess drugs whilst acting in the course of their duties.

Question 26

What is the intervention model for the unlawful possession of cannabis and khat?

Answer 26

Helps provide a justifiable and proportionate response, and the intention is to send out the message that the substances are harmful and illegal.

There are three levels of intervention:

1. Cannabis or khat warning
2. PND
3. Arrest/ charge

Question 27

Under the intervention model, PNDs and warming can only be used if the person:

Answer 27

Is aged 18 years or over and has verifiable personal details.

Is not vulnerable.

Is competent enough to grasp meanings of officer’s questions and can reply to questions coherently.

Is not under the influence of alcohol or drugs at the time the warning of PND is issued.

Possesses an amount that is deemed for personal use.

Is not in possession of any other drug.

Admits the possession of cannabis or khat.

Question 28

What additional aggravating factors must be taken into account when considering the intervention model?

Answer 28

Location: is it in a hotspot? Is it around children?

Smoking in public?

Being a repeat offender?

Question 29

What can be used to check if a suspect has received a relevant warning or a PND?

Answer 29

The PNC

Relevant warning or a PND can only be used once UNLESS it was issued before January 2009 when the law changed.

Question 30

Under what new legislation can cannabis based products be prescribed by doctors for medicinal use?

Answer 30

(SI 2018/1055 The Misuse Of Drugs (Amendments) (Cannabis and License Fees) Regulations 2018.

Question 31

Defences are available under s 28 of the Misuse of Drugs Act 1971.

What two main issues do these relate to?

Answer 31

Whether the suspect knew or believe the substance to be a controlled drug

Whether he/she was entitled to possess that particular drug (s 28(3)(b)(i) and (ii).

Question 32

Offences involving Class A, B or C drugs possession penalties?

Answer 32

Triable either way and the penalty is imprisonment and/or a fine.

A: Summary offence = 6 months, indictable offence = 7 years.

B: Summary offence = 3 months, indictable offence = 5 years.

C: Summary offence = 3 months, indictable offence = 2 years.

Unlawful possession of cannabis can also be dealt with by issuing a PND for £90.

Question 33

What is a Controlled Drug?

Answer 33

Drugs are “controlled” by the state and are categorised according to the harm that they do, both to individuals and to society as a whole.

Question 34

Does a suspect have to know the substance was of a particular type or even a controlled drug?

Answer 34

No - It does not have to be proven that he knew the substance was of a particular type or even a controlled drug.

If, for example, a suspect is stopped and found in possession of kitchen herbs (which he admits and knows he possesses), he still commits an offence if the substance turns out to be cannabis.

If a suspect is found delivering packages which he knows contains something, if that something turns out to be cocaine, he will commit the offence.

Question 35

Certain defences can be raised by those accused of being in possession of controlled drugs….

Answer 35

s5(4) of the Misuse of Drugs Act which

“the accused, knowing or suspecting [the substance] to be a controlled drug, takes possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and:

as soon as possible after taking possession, they take all such steps as are reasonably open to them to destroy the drug or deliver it into the custody of a person lawfully entitled to take custody of it.”

Question 36

Production of controlled drugs

It is an offence to…

Answer 36

(s 4(2) of the Misuse of Drugs Act 1971)

…produce a controlled drug or be concerned in the production without a licence from the Secretary of State.

Growing plants and carrying out chemical processes are included.

Being concerned in production would include delivering chemicals, providing premises or providing finance.

Question 37

Offences involving the production of controlled drugs penalties?

Answer 37

Triable either way and the penalty is imprisonment and/or a fine.

A: Summary offence = 6 months, indictable offence = Life.

B: Summary offence = 6 months, indictable offence = 14 years.

C: Summary offence = 3 months, indictable offence = 5 years.

Question 38

The intentional production of a psychoactive substance is an offence under what legislation?

Answer 38

s 4(1) of the PSA 2016.

The person must know or suspect that the substance is a psychoactive substance and also:

• intend to consume it for its psychoactive effects.
• know (or be reckless as to whether) it will be consumed by another person for its psychoactive effects.

Triable either way and the penalty is a fine and/or imprisonment (12 months summarily, 7 years on indictment).

Question 39

Where are supply offences covered in legislation?

Answer 39

• s 4 Misuse of Drugs Act 1971 for controlled drugs.

- s 4 of the PSA 2016 for psychoactive substances.

Question 40

A court must treat a supply offence more seriously under what circumstances?

Answer 40

If it was committed in or near to a school, or it the suspect used a courier under the age of 18.

Question 41

For controlled drugs, supply offences are covered under sXX of the Misuse of Drugs Act 1971.

It is an offence to unlawfully…

Answer 41

s 4(3) of the Misuse of Drugs Act

(a) to supply or offer to supply a controlled drug to another (supply can even just mean passing a joint)
(b) to be concerned in the supplying of such a drug to another; or
(c) to be concerned in making an offer to supply a controlled drug to another

Question 42

Section 4(2) offences for a Class A drug are ‘trigger’ offences. What does this mean?

Answer 42

Under s 63B of the PACE Act 1984, a sample can be demanded from a person in custody.

Question 43

For psychoactive substances, it is an offence to intentionally supply such a substance to another person (s 5(1) of the PSA 2016) but this only applies if the subject…

Answer 43

• knows or suspects (or ought to) that the substance is psychoactive; and
• knows or suspects (or ought to) or is reckless as to whether another person is likely to consume it for its psychoactive effects

Question 44

Possession of a controlled drug with intent to supply is an offence under what legislation?

Answer 44

s 5(3) of the Misuse of Drugs Act 1971

The substance in question must be a controlled drug (unlike the s 4(3) supplying offence), but need not be the drug the suspect believes it to be, e.g a suspect that believed the drug was heroin can still be guilty even if it was found to be cocaine.

It is not relevant whether the possession was lawful (e.g doctor or police) if he/she intended to unlawfully supply.

Question 45

Possession of psychoactive substances with intent to supply is an offence under what legislation?

Answer 45

s 7(1)(a) of the Psychoactive Substances Act 2016.

The suspect must known (or suspect) that the substance is psychoactive s 7(1)(b) and intend to supply to another person for consumption for its psychoactive effects.

• Triable either way and the penalty is imprisonment and/or a fine (12 months if tried summarily, and up to 7 years imprisonment on indictment).

Question 46

Occupier or manager of premises used for controlled drug offences legislation

Answer 46

s 8 of the Misuse of Drugs Act 1971.

Occupier doesn’t have to be tenant or owner, but has to have sufficient control over the premises that he/she could prevent drug related activities.

In practice, this is often taken to be someone who has the right to deny a person entry to the premises. There is no requirement for the ‘occupier’ to have any legal connection to the premises.

a) Producing or attempting to produce a controlled drug.
b) Supplying, attempting to supply or offering to supply a controlled drug to another.
c) Preparing opium for smoking.
d) Smoking cannabis, cannabis resin, or prepared opium.

There must be evidence for one of these to have occurred.

You will see that this leaves several gaping holes for offenders to slip through. There is nothing preventing the preparation and smoking of crack cocaine, nor even injecting heroin. Thankfully, the main purpose is to trap those who manage premises where drugs are produced or supplied

Question 47

The legal import and export of controlled drugs requires a license and is covered under what legislation?

Answer 47

s 3(1) of the Misuse of Drugs Act 1971.

Question 48

Under what legislation is it an offence to knowingly acquire possession or be concerned in transporting, storing or concealing drugs, or be concerned in any fraudulent evasion or attempted evasion of restriction?

Answer 48

s 170 of the Customs and Excise Management Act 1979

These offences are triable either way and the penalty for Class A/B is imprisonment (life and 14 years, respectively) and for Class C on summary conviction three months imprisonment and/or a fine and on indictment 5 years imprisonment.

Question 49

Under what legislation is it an offence to intentionally import or export psychoactive substances?

Answer 49

s 8(1) and (2) PSA 2016, respectively.

• Must know/suspect (or ought to know) that substance is psychoactive.
• He/she must also intend to consume it for its effects, or know or be reckless as to whether some other person is likely to consume it for its effects.

Question 50

Far more serious than the simple possession of illegal drugs is the supply and distribution of them, and it is predominantly these suppliers who are the target of police operations.

There are a number of offences relating to the supply of illegal drugs, including some useful ‘catch all’ offences. The main offences covered here are:

Answer 50

• Importation of controlled drug (s 3(1))
• Production of a controlled drug (s 4(2))
• Supplying a controlled drug (s 4(3))
• Possession with intent to supply a controlled drug (also known as PWITS) (s 5(3))

Question 51

The maximum penalty for importing a controlled drug is linked to the classification of the drugs themselves:

Answer 51

Class A - Life imprisonment
Class B - 14 years imprisonment
Class C - 5 years imprisonment
NPS - 7 years imprisonment

Question 52

s4(2) of the Misuse of Drugs Act 1971 also makes it an offence to be…

Answer 52

concerned in the production of drugs.

Useful examples: purchasing chemicals, knowing that they would be used for drug production, providing the premises, financing the production of drugs etc., would all count as “being concerned in the production”.

Class A - Life imprisonment
Class B - 14 years imprisonment
Class C - 5 years imprisonment

Question 53

Possession with Intent to Supply a Controlled Drug (PWITS)

This is the most common of all the supply offences that you will encounter and comes from…

Answer 53

s5(3) of the Misuse of Drugs Act.

Mens Rea: This offence is exactly the same as the basic offence of possession, but with an added mens rea of intention to give the drugs to another.