Drugs: Defences S28 Misuse of Drugs Act 1971

Defences in Section 28 of the Act

In relation to offences of possession (with or without intent to supply), production, supply, cultivation of drugs or the opium-related offences, it is a defence for the accused to show that:

  • He neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove, for example that he was in possession of the drug.
  • He neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug.
  • That he believed the product to be a controlled drug, which had it been that drug, would mean that he would not have been an offence at the time that he committed it.

In R v Lambert [2002] 2 AC 545, the House of Lords held that the defendant only bears an evidential burden in relation to calling evidence that he lacked the requisite knowledge, belief or suspicion – it is for the prosecution to prove by reference to the available evidence that he lacked knowledge, belief or suspicion.

It is the second of the three defences cited above that will be most frequently encountered. In deciding whether the defence is made out, prosecutors may wish to have regards to:

  • The credibility of any account given in interview – note the evidential burden on the defendant.
  • The circumstances in which the drug was acquired or possessed, including concealment.
  • Nature of any packaging.
  • Any observations on the defendant prior to him being stopped or arrested.
  • If a possession offence is alleged, proximity to the supplier.
  • Content of any exhibit – telephone messages, documents, labelling.
  • Relevant bad character – including previous non court disposals and informal warnings, if recorded and in an admissible format.

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