PWITS, evidence of supply, and fraudulent use of legal drugs

06 February 2019

Not reviewed after the date of publication

Question:

A suspect is arrested for possession with intent to supply (cocaine), but when the drug is tested, it is found to be paracetamol. There is no evidence of an actual supply to another; only the drugs possessed. In such circumstances, where possession with intent to supply is no longer applicable, can the suspect be charged with an offence such as possessing articles for fraud?

Answer:

In our view, the offence of possession with intent to supply under section 4 of the Misuse of Drugs Act 1971 would not automatically be excluded simply because there was no evidence of an actual supply; it will depend on the circumstances and need to be judged on a case by case basis. You would need to consider for example, the amount of paracetamol, whether it is clearly packaged as such or repackaged to give the appearance of other drugs, how much cash is found, and what other evidence is available. If a person has a large amount of wraps and cash and it appears clear that he was intending to supply the drugs, despite them not actually being controlled drugs, then the offence may be made out, and a charge could be considered. It would then be for the courts to decide, based on the evidence available. Evidence of supply would obviously assist such a case, but it not necessarily essential if there is strong circumstantial evidence.

In the case of R v Gill (Simon Imran) 1993 dealt with a similar scenario whereby an individual was attempting to cheat his customers by stating he could offer ecstasy pills, however what he was actually supplying were vitamin tablets. Due to his involvement with other persons, the defendant in that case was convicted of conspiracy to supply a controlled drug. The case outlines that supplying legally obtainable substances with the intention of deceiving the purchaser into believing that he is in receipt of a controlled drug is still an offence under the Misuse of Drugs Act 1971. However, this case also highlighted that the offence is complete when an offer is made.

Based on the above case, we are of the view that where the drugs involved are not controlled drugs, then you can still consider the offence of possession with intent to supply; however the offence may not be satisfied if there is no evidence of any offer to supply those drugs.

Alternatively, there is an offence under section 6 of the Fraud Act 2006 of possession articles for use in the course of or in connect with any fraud, which could be committed. However, if you are unable to show that the person intended to supply the drugs, it may be difficult to show that the items possessed were for use in fraud (as the fraud is dependent on the supply of the drugs).

It is our opinion that fraud offences could be used even if the situation involves prohibited / illegal items, such as drugs. We have based this on the case of R v Smith and others 2011, in which a conviction of theft was upheld, despite the property stolen being class A drugs. Although this case relates to theft rather than fraud, it suggests that in dishonesty offences, the legality of the item involved is not relevant.

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