Controlled drugs are divided into different ‘classes’ for the purposes of the Act and the type of drug will have a bearing on the approach taken by the prosecution and the Court. Cannabis was recently reclassified as a Class ‘B’ drug. Possession of cannabis in relatively small amounts may be dealt with by way of a Fiscal Fine rather than formal prosecution. Possession of Class ‘A’ drugs such as heroin, cocaine or MDMA (ecstasy) is almost invariably prosecuted as a matter of Crown Office policy.
Production or cultivation of cannabis, even on a fairly modest scale, can attract greater penalties. The last several years have seen an increase in the number of larger-scale cultivations uncovered by police, often in light of unusual activity being reported at properties where multiple plants are grown with the assistance of sophisticated lighting, heating and hydroponic systems. In these circumstances, it is not unusual for the Crown to prosecute someone for being concerned in the supply of cannabis, where it is apparent that the cultivation – and potential yield – is on such a scale that it is clearly intended for onward supply.
Production or cultivation of cannabis, even on a fairly modest scale, can attract greater penaltiesA charge of being ‘concerned in the supply of a controlled drug’ is prosecuted under Section 4(3)(b) of the Misuse of Drugs Act. The definition of ‘concern’ is drawn widely, so as to cover a number of activities in the chain of supply. Accordingly, it is possible to be ‘concerned in’ the supply of a controlled drug, even if no drugs are found on your person or in any property occupied by you. Any activity which facilitates the supply of a controlled drug such as storing equipment, money or drugs, providing a telephone number of a supplier or customer, or acting as a ‘courier’ for a package of drugs, falls within the scope of Section 4(3)(b).. The last several years have seen an increase in the number of larger-scale cultivations uncovered by police, often in light of unusual activity being reported at properties where multiple plants are grown with the assistance of sophisticated lighting, heating and hydroponic systems. In these circumstances, it is not unusual for the Crown to prosecute someone for being concerned in the supply of cannabis, where it is apparent that the cultivation – and potential yield – is on such a scale that it is clearly intended for onward supply.
As yet, the legislation has not been amended to deal with the emerging issue of ‘Legal Highs’, otherwise known as New Psychoactive Substances. These are compounds which have been synthetically created in such a way as to mimic the effects of certain controlled drugs but whose chemical formulae take them outwith the ambit of the Schedule of prohibited substances in the Misuse of Drugs Act. Police Scotland have taken some steps to control the supply of Legal Highs by targeting stores where they are readily available and charging the proprietors of those stores with ‘culpable and reckless conduct’. While this might be seen to be an imaginative approach, it remains to be seen whether selling an item which is not prohibited by law and which is marketed in such a way as to alert potential consumers to its dangers (“Not for human consumption”) can be said to be an offence at common law.
