01 April 2020
Not reviewed after the date of publication
Officers regularly come across drug paraphernalia however they are unsure how to deal with it when no other evidence of drugs exist.
Please can you confirm:
Whether a drug pipe with residue from a controlled drug constitutes an offence? If such article is given back to a person on leaving custody, would this amount to an offence of supply?
What, if any, power of seizure and arrest exists, if there is no other evidence of drugs?
In our opinion, if the drug pipe contains a controlled drug, or even just traces of a controlled drug, then possession of this could amount to the offence of possession under section 5 of the Misuse of Drugs Act 1971 (MDA 1971).
Proof of unlawful possession requires three elements -
(a) The drug must be in the custody or control of the defendant;
(b) The defendant must know or suspect the existence of the drug in question; and
(c) The drug must be a controlled drug within the meaning of the Act.
As such, the return of the drugs pipe containing traces of the controlled drug, could amount to an offence of supply under section 4 of the MDA 1971.
Section 54 of PACE provides a custody officer with the power to search, seize and retain items which have been found during the search of detained persons.
Section 54(4)(b) states that personal effects may be seized if the custody officer has reasonable grounds for believing that it may be evidence relating to an offence:
"54(4) Clothes and personal effects may only be seized if the custody officer –
(a) believes that the person from whom they are seized may use them -
(i) to cause physical injury to himself or any other person;
(ii) to damage property;
(iii) to interfere with evidence; or
(iv) to assist him to escape; or
(b) has reasonable grounds for believing that they may be evidence relating to an offence."
This section can be used to seize drugs paraphernalia, even where the person is not under arrest for a drugs offence. Whether residue would provide an officer with reasonable grounds to believe that the pipe may be evidence relating to an offence, would be for the officer to justify and if challenged, would ultimately be for a court to decide.
If there is no evidence of drugs in the pipe and the pipe is in the possession of the police by virtue of section 54 of PACE, the pipe should be returned to the person upon release.
Whether or not a person should be arrested is a decision to be made by the officer. Section 31 of the Police and Criminal Evidence Act 1984 (PACE) states that where a person is under arrest for an offence and detained at a police station in consequence of that arrest, and it appears to a constable that, if he were released from that arrest, he would be liable to arrest for some other offence, he shall be arrested for that other offence. This is a statutory duty imposed on the police to arrest if the requirements of the legislation are satisfied. With regards to necessity to arrest, as long as the necessity criteria under section 24 of PACE would have been met and the person would be liable to arrest were they not already in police detention, then section 31 would apply.
Whether residue satisfies the legal requirements would again be for the officer to justify and, if challenged, would ultimately be for a court to decide.
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