08 March 2021
Not reviewed after the date of publication
A person has contacted a drug dealer with a view to purchase cannabis, sent money via BACS for the cannabis, however no cannabis was sent.
What offence is committed?
Section 5 of the Misuse of Drugs Act 1971 creates the offence of possession of controlled drugs. The offence of 'Attempt to possess a controlled drug of Class B - Cannabis / Cannabis Resin' falls under section 1 of the Criminal Attempts Act 1981 and can be found in document H8977 on PNLD.
Under section 1 of the 1981 Act, a person commits attempt if they do an act which is more than merely preparatory to the commission of the offence. Please see our document on PNLD which provides further explanation on the meaning of 'more than merely preparatory'.
In our view, if it can be shown that the payment was made for the purchase of drugs, then that payment would constitute an attempt to possess those drugs. However ultimately, it will be for the courts to decide if this was the case, based on the full facts.
Theft / fraud involving illegal acts / services
In relation to the offence of making off without payment under section 3 of the Theft Act 1978 , subsection (3) specifically states that the offence cannot be committed where the supply of the goods or the provision of the service is contrary to law. However, in relation theft and fraud, there are no equivalent provisions. In our view, therefore, it is possible for a person to commit theft or fraud, in relation to illegal goods / services.
This view is supported by previous case law. The case of R v Smith and others 2011 provides an example of theft being committed in relation to illegal goods (in this case Class A drugs). The case of R v Linekar 1994 related to a rape conviction, which was subsequently quashed, but the court noted that the now repealed offence under section 3 of the Sexual Offences Act 1956 (procuring sexual intercourse by false pretences) could have been committed in the circumstances.
In the circumstances, we believe the most appropriate offence for the 'dealer' is fraud by false representation under section 1 and section 2 of the Fraud Act 2006 (see document H8685 on PNLD for the offence).
Although no drugs were provided in this case, if it can be shown that the person does in fact deal drugs, then offences under the Misuse of Drugs Act 1971 should also be considered.
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