Possession of Drugs

What happens if you get caught with drugs? Under section 5(2) of the Misuse of Drugs Act (MDA) 1971, it is a criminal offence for a person to have a controlled drug in their possession. Jail time for possession of drugs varies based on many factors. The most severe crime is possession of class A drugs, resulting in 7-year imprisonment and a large fine. Police can conduct a section 23 search to obtain evidence from you.

Possession of Drugs FAQ

A: Possession of drugs is a criminal offence explained in the Misuse of Drugs Act 1971 as a person to have possession of a controlled drug.
A: There are many circumstances where a person charged with possession of drugs has a defence. For example, if you took possession of a controlled drug for the purpose of destroying it or handing it into the authorities as soon as possible, you may have a defence. Defence of this crime requires a defendant to prove this was the case and this is best done with the help of our drug lawyers who have experience in this.

To be convicted of possession of a controlled drug or drugs, the Procurator Fiscal must prove that. 

  1. a) the substance in question is a controlled drug
  2. b) the accused had the drug under their control
  3. c) the accused knew that the drug existed

It is also possible for drugs to be on a person whilst another person has control of them. In those circumstances, both accused can be found guilty of drug possession. A section 23 search is carried out on a person to see if they have drugs on them.

The different classes of controlled drugs

In Scotland, drugs are classified as class A, B, or C based on the potential harm the particular drug can cause. 

Possession of class A drugs

  • Examples of a class A drug include: Heroin, crack cocaine, ecstasy (MDMA), LSD and methadone. Jail time for possession of drugs concerning class A drugs varies dramatically. Many aspects are taken into account when deciding on a sentence. You can face up to 7-years imprisonment for possession of class A drugs. Crack possession/cocaine possession has increased in recent decades; creating a national drugs epidemic. As such, possession of class A drugs has resulted in fewer custodial sentences as Scotland looks to tackle the problem in other ways.

Possession of class B drugs

  • Examples of class B drugs include Amphetamines, cannabis, synthetic cannabinoids, mephedrone and ketamine. Jail time for possession of drugs for class B drugs is less severe with a maximum of 5 years imprisonment and an unlimited fine. The actual penalty may not be too harsh. 

Possession of class C drugs

  • Examples of a class C drug include: Anabolic steroids and benzodiazepines (diazepam)

What are my rights if I am arrested for drug possession?

When arrested for possession of a controlled drug, the police may take you to a police station for questioning. If you are “arrested under suspicion.” you should contact us immediately for support. Police are allowed to search you under commonly known as a section 23 search.

You do not have to answer any questions, and the police are required to advise you of your right not to answer any questions.

You are also allowed to request that a lawyer be present to represent you at the police station and this will be covered by automatic legal aid.

You can be held for up to twelve hours, and if charged with drug possession, you can be held over till the next lawful day for a court appearance.

What happens if you get caught with drugs?

Prison sentences are possible for possession of drugs charges although increasingly rare, especially if your first offence and the drug quantities are small. There has been a move away from criminalisation in drug possession cases. Many people are either not prosecuted at all or are receiving offers of a fine from the Procurator Fiscal, which if paid, will avoid prosecution and the need to attend court at all. Therefore jail time for possession of drugs can be avoided.

Defences in law for possession of drugs cases

If you are charged with possession of a controlled drug, there are several defences available.  The most common defence is you did not know, nor suspect, nor have reason to suspect that you did, in fact, have a controlled drug in your possession.  Alternatively, a defence is available if you did not realise, nor have cause to believe the substance you know to be in your possession was, in fact, a controlled substance.

You may have a defence if you successfully argue that the drugs have been planted on you by another person. In that case, the court will have to consider the circumstances in which the drugs were in your possession and whether you had an opportunity to discover the true contents and what access you had to the drugs.

Possession of drugs lawyers

For urgent specialist advice, immediate representation or to speak to us confidentially about any criminal matter, please do not hesitate to contact a member of our specialist drug lawyers team. We have a great wealth of experience in defending clients accused of drug possession charges.

Legal aid for possession of drugs

As a Scottish Legal Aid Board (SLAB) registered firm, you can get free legal advice for drugs charges. Talk to us today about your eligibility. Our Legal Aid lawyers have a wealth of experience in dealing with all types of drug charges. We get results that work for you. So, what happens if you are caught with drugs? You call us, and we defend you with our experts.