POSSESSION
WITH INTENT
TO SUPPLY
AND "SOCIAL
SUPPLY"
75. We have heard that several practical difficulties
are faced when determining whether an act constitutes simple possession
or the more serious offence of possession with intent to supply
(which carries much higher maximum penalties—see table below).
First, we are told, intent to supply is very difficult to prove,
and where proof is based upon the amounts of substances in question,
much court time is taken up with expert witnesses giving evidence
on the amount that one person might reasonably be expected to
take him or herself. It has been suggested to us that some defendants
are wrongly convicted of the more serious offence of possession
with intent to supply due to a lack of understanding about drug-taking
habits and the amounts of different substances involved. To overcome
this problem, and lend greater clarity to both the courts and
to users, a threshold could be set of the amount of a substance
held to constitute simple possession only, above which an intent
to supply would be presumed.
| Offence | Maximum penalty if tried on indictment (Class A drug involved)
|
| Supplying a controlled drug | Life
|
| Having possession of a controlled drug |
7 years |
| Having possession of a controlled drug with intent to supply it to another
| Life |
76. Mr Ainsworth told us that he was not aware of the law
falling down in this respect, and that if penalties were given
according to the amount of substance found on a suspect, "we
would find systematically people were on the streets with just
under that amount".[79]
Mr Calvert-Smith, Director of Public Prosecutions, told us that
"any attempt to define dealing or supply based on a given
quantity [of substance] is likely to be extremely problematic",
and explained:
"In determining whether the appropriate charge is Possession
with Intent to Supply as opposed to Simple Possession, the prosecutor
will consider the amount of the drug in the defendant's possession.
However, our policy has long been that this is not a conclusive
indicator, although it is recognised that large quantities are
likely to be more consistent with supply than personal use. The
prosecutor will, in addition, consider other factors such as the
variety of drugs found, evidence that the drugs were prepared
for sale, other evidence of preparation, evidence of large amounts
of money in the possession of the defendant and evidence from
diaries and other documents".[80]
77. We are not persuaded that an intent to supply should
be presumed on the basis of amounts of drugs found; we therefore
recommend that the offences of simple possession and possession
with intent to supply should be retained without alteration.
78. The second problem put to us was that the law does not
distinguish adequately between "social supply"—between
friends and not for profit—and large-scale commercial supply.
We note that this type of "social use" is the main cause
of the proliferation of drug use. It seems likely that more new
users are introduced to drugs by friends than by street dealers.
However, the argument put to us was that these crimes are different
not only in scale, but in kind. Mrs Hope Humphreys, whose son
was imprisoned for supplying ecstasy to his friends, told us:
"Virtually everybody who has taken drugs has been a supplier.
By passing a joint, you are a supplier; by getting the E for your
friend for that night, you are a supplier. It is social supply,
it is not a wicked, horrible person corrupting our youth. It is
like buying a round of drinks to them".[81]
79. The Police Foundation Report identified this problem as
follows:
"The current definition of supply does not distinguish
between acts of different gravity, eg supply between friends,
or for gain, or as part of an organised criminal group supplying
in substantial quantities".[82]
80. The solution they offered was to create a separate offence
of "dealing" which would be used to identify those who
engage in a pattern of illicit transactions over a period of time,
as distinct from those who commit a single act of supply. They
further recommend that, for those engaged in "social supply":
"it should be a defence for a person accused of supply
or possession with intent to supply to prove that he was a member
of a small social group who supplied or intended to supply a controlled
drug (other than Class A) to another member or other members of
that group believing he was acting, or had acted, on behalf of
that group, which shared a common intention to use the drug for
personal consumption. This defence would only apply where the
court was satisfied that the amount or value of the controlled
drug was consistent with personal use within the group concerned".[83]
81. If the defence was proven, the defendant would then only
be liable for simple possession. Mr Calvert-Smith told us that
at present "the judge will distinguish between dealers and
social suppliers in the sentence passed following conviction".[84]
82. We do not agree with the Police Foundation. Those guilty
of "social supply" should not escape prosecution for
this offence on the basis that their act of supply was to their
friends for their personal consumption. We believe that this act
of "social supply", while on a different scale from
commercial supply, is nonetheless a crime which must be punished.
83. We believe that while there are two different crimes
of supply, the law only formally recognises one. We recommend
that a new offence is created of "supply for gain",
which would be used to prosecute large scale commercial suppliers.
So-called "social suppliers" who share drugs between
their friends on a not-for-profit basis should continue to be
prosecuted for supply.
RECLASSIFICATION
84. A further step down from the radical options of legislative
change would be to look again at the categories by which drugs
are classified under the Misuse of Drugs Act 1971. The classifications
of illicit drugs are designed to protect people from substances
in a hierarchy of penalties which reflects their relative harmfulness.
The indication by the Home Secretary, on 23 October 2001, that
he would consider the reclassification of cannabis from Class
B to Class C demonstrates the system's potential for flexibility
and adjustment.
85. The Committee has heard numerous representations to the
effect that the classification system prescribed by the Act no
longer accurately reflects current scientific and medical opinion:
"the current system of classification lacks credibility
as it is not based on the relative harm caused or dangerousness
of use" (Turning Point).[85]
"There is a misalignment in the relative harms of certain
drugs and their classification" (DrugScope).[86]
"The present tough penalties on the use of ecstasy, LSD and
cocaine are inappropriate and counter-productive and should be
reduced" (Release).[87]
86. The importance of correctly classifying controlled drugs
does not rest purely upon the justice of the penalties attached
to possession and supply. It also has a significant impact upon
the educational "messages" communicated to current and
potential drug users about the dangers of using particular drugs.
The point continually reiterated to the Committee is that, if
the law (and education) does not reflect the realities of risk,
users and potential users are likely to assume that all warnings
are similarly skewed. Nor will it escape the notice of users and
potential users if the law does not reflect relative harm: many
young people will be presented with evidence of others using drugs
all around them, and come to their own conclusions. Turning Point
is of the view that:
"changes to the drugs laws would also greatly enhance
the credibility of drugs education work. For example ecstasy is
classed alongside heroin and cocaine but is not perceived by some
young people as being as dangerous and so when the police and
other workers are talking about other Class A drugs, these more
serious messages are also being discredited".[88]
87. Mr Ainsworth recognised this when he said:
"There is also an issue¼
of how we get the message across to young people. They are not
stupid; they do know the basic facts in this area, or many of
them do; and unless we have a credible message they switch off
altogether to everything that we say".[89]
88. We, therefore, conclude that the time
has come to reconsider the existing classifications for the less
harmful drugs and we address each in turn.
55 Ev 184. Back
56
Retrieved from the World Wide Web on 23 April 2001: http://www.angeldeclaration.com/declaration.htm. Back
57
QQ. 155; 179. Back
58
Ev 126-7. Back
59
Q. 565. Back
60
Ev 185. Back
61
Q. 1374. Back
62
Mr Danny Kushlick, Q. 226. Back
63
Mr Nick Davies, QQ. 150; 162. Back
64
Transform, Ev 185. Back
65
Q. 578. Back
66
Q. 1204. Back
67
Vol III, Ev 241. Back
68
Q. 1233. Back
69
Q. 769. Back
70
Q. 1230. Back
71
QQ. 126; 452-3. Back
72
Q. 1204. Back
73
Decriminalisation: this term is used to mean the removal of imprisonment
as a sanction for possession. Offenders could instead be punished
by a fine, or another "civil" measure. Back
74
Q. 756. Back
75
Vol III, Ev 245. Back
76
Vol III, Ev 246. Back
77
Ev 127. Back
78
Vol III, Ev 241. Back
79
Q. 1217. Back
80
Vol III, Ev 273. Back
81
Q. 1392. Back
82
Drugs and the Law, pp. 62-3. Back
83
Ibid, pp. 63-4. Back
84
Vol III, Ev 273. Back
85
Vol III, Ev 246. Back
86
Ev 46. Back
87
Ev 166. Back
88
Vol III, Ev 246. Back
89
Q. 1208. Back
