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drugs [2017/04/22 19:36]
frescom
drugs [2017/04/22 20:05]
frescom
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-==== Misuse of Drugs Act 1971 ====+====== DRUGS ====== 
 + 
 + 
 +===== Misuse of Drugs Act 1971 =====
  
 Controlled Drugs Drugs are controlled drugs if they are specified as being of Class A, B or C, as set out in Parts I, II or III of Schedule 2 to the Act. Controlled Drugs Drugs are controlled drugs if they are specified as being of Class A, B or C, as set out in Parts I, II or III of Schedule 2 to the Act.
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 Possession - s.5(1) of the Act; Possession with intent to supply - s.5(3) of the Act. Supply offences: Possession - s.5(1) of the Act; Possession with intent to supply - s.5(3) of the Act. Supply offences:
  
-Supplying a controlled drug - s.4(3)(a) of the Act; Being concerned in a supply - s.4(3)(b) of the Act; Offering to supply - s.4(3)(a) of the Act; Being concerned in an offer to supply - s.4(3)© of the Act. Importation offences:+Supplying a controlled drug - s.4(3)(a) of the Act; Being concerned in a supply - s.4(3)(b) of the Act; Offering to supply - s.4(3)(a) of the Act; Being concerned in an offer to supply - s.4(3)© of the Act. Importation offences:
  
 Importation (and exportation) of a controlled drug - s.170 Customs and Excise Management Act 1979, Production offences: Importation (and exportation) of a controlled drug - s.170 Customs and Excise Management Act 1979, Production offences:
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 Permitting premises to be used for producing - s.8(a) of the Act; Permitting premises to be used for supplying - s.8(b) of the Act; Permitting premises to be used for smoking cannabis etc. - s.8(d) of the Act. Opium related offences: Permitting premises to be used for producing - s.8(a) of the Act; Permitting premises to be used for supplying - s.8(b) of the Act; Permitting premises to be used for smoking cannabis etc. - s.8(d) of the Act. Opium related offences:
  
-Smoking or using prepared opium - s.9(a) of the Act; Frequenting a place used for opium smoking - s.9(b) of the Act; Permitting premises to be used for preparing opium for smoking - s.8© of the Act; Possessing pipes or other utensils in connection with the preparation or smoking of opium - s.9©(i) and (ii) of the Act. Supply of articles offences:+Smoking or using prepared opium - s.9(a) of the Act; Frequenting a place used for opium smoking - s.9(b) of the Act; Permitting premises to be used for preparing opium for smoking - s.8© ​of the Act; Possessing pipes or other utensils in connection with the preparation or smoking of opium - s.9©(i) and (ii) of the Act. Supply of articles offences:
  
 For administering controlled drugs - s.9A(1) of the Act; For preparing controlled drugs for administration - s.9A(3) of the Act. Inchoate offences: For administering controlled drugs - s.9A(1) of the Act; For preparing controlled drugs for administration - s.9A(3) of the Act. Inchoate offences:
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 First offence - Khat Warning Unless there are aggravating features (quantity of drug, offences committed in busy public place, children present or there is related offending or anti-social behaviour), or the suspect is a repeated and persistent offender (for any type of offence), in which case PND or charge should be considered. Second offence - Penalty Notice for Disorder (PND) If the suspect does not admit the offence, then the officer can only issue the PND if there is sufficient evidence that the offence has been committed. For identification of Khat in these circumstances,​ see above. Third or subsequent offence - Arrest/​Charge Psychoactive Substances The Psychoactive Substances Act 2016 defines '​psychoactive substance'​ and makes it an offence to produce, supply, offer to supply, possess with intent to supply, import and export psychoactive substances, and to possess a psychoactive substance in a custodial institution. The Psychoactive Substances Act 2016 came into force on 26th May 2016. See guidance about Psychoactive Substances. First offence - Khat Warning Unless there are aggravating features (quantity of drug, offences committed in busy public place, children present or there is related offending or anti-social behaviour), or the suspect is a repeated and persistent offender (for any type of offence), in which case PND or charge should be considered. Second offence - Penalty Notice for Disorder (PND) If the suspect does not admit the offence, then the officer can only issue the PND if there is sufficient evidence that the offence has been committed. For identification of Khat in these circumstances,​ see above. Third or subsequent offence - Arrest/​Charge Psychoactive Substances The Psychoactive Substances Act 2016 defines '​psychoactive substance'​ and makes it an offence to produce, supply, offer to supply, possess with intent to supply, import and export psychoactive substances, and to possess a psychoactive substance in a custodial institution. The Psychoactive Substances Act 2016 came into force on 26th May 2016. See guidance about Psychoactive Substances.
  
- +===== SUPPLYING =====
 Supply/​Possession with intent to supply/​Offering to supply Evidential and Charging considerations Supply Supply/​Possession with intent to supply/​Offering to supply Evidential and Charging considerations Supply
  
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 Possession of a quantity inconsistent with personal use. Possession of uncut drugs or drugs in an unusually pure state suggesting proximity to their manufacturer or importer. Possession of a variety of drugs may indicate sale rather than consumption. Evidence that the drug has been prepared for sale. If a drug has been cut into small portions and those portions are wrapped in foil or film, then there is a clear inference that sale is the object. Drug related equipment in the care and/or control of the suspect, such as weighing scales, cutting agents, bags or wraps of foil (provided their presence is not consistent with normal domestic use). Diaries or other documents containing information tending to confirm drug dealing, which are supportive of a future intent to supply, for example, records of customers'​ telephone numbers together with quantities or descriptions of drugs. Money found on the defendant was considered in R v Batt (1994) Crim. LR 592. It is not necessarily evidence of future supply. It may be evidence of supply in the past but on its own the money is not evidence of a future intent to supply. Evidence of large amounts of money in the possession of the defendant, or an extravagant life style which is only prima facie explicable if derived from drug dealing, is admissible in cases of possession with intent to supply if it is of probative significance to an issue in the case R v Morris (1995) 2 Cr. App. R. 69. Extravagant lifestyle, but only when that is of probative significance to an issue in the case. Evidence of this type is only likely to be admitted by the courts rarely but for a detailed overview refer to Archbold 27-71 to 27-76. Offering/​being concerned Possession of a quantity inconsistent with personal use. Possession of uncut drugs or drugs in an unusually pure state suggesting proximity to their manufacturer or importer. Possession of a variety of drugs may indicate sale rather than consumption. Evidence that the drug has been prepared for sale. If a drug has been cut into small portions and those portions are wrapped in foil or film, then there is a clear inference that sale is the object. Drug related equipment in the care and/or control of the suspect, such as weighing scales, cutting agents, bags or wraps of foil (provided their presence is not consistent with normal domestic use). Diaries or other documents containing information tending to confirm drug dealing, which are supportive of a future intent to supply, for example, records of customers'​ telephone numbers together with quantities or descriptions of drugs. Money found on the defendant was considered in R v Batt (1994) Crim. LR 592. It is not necessarily evidence of future supply. It may be evidence of supply in the past but on its own the money is not evidence of a future intent to supply. Evidence of large amounts of money in the possession of the defendant, or an extravagant life style which is only prima facie explicable if derived from drug dealing, is admissible in cases of possession with intent to supply if it is of probative significance to an issue in the case R v Morris (1995) 2 Cr. App. R. 69. Extravagant lifestyle, but only when that is of probative significance to an issue in the case. Evidence of this type is only likely to be admitted by the courts rarely but for a detailed overview refer to Archbold 27-71 to 27-76. Offering/​being concerned
  
-In addition to the supply of a controlled drug, section 4(3)(a)-© of the Act creates offences of offering to supply, being concerned in the supply and being concerned in the making of an offer to supply.+In addition to the supply of a controlled drug, section 4(3)(a)-© of the Act creates offences of offering to supply, being concerned in the supply and being concerned in the making of an offer to supply.
  
 An offence of offering to supply can be prosecuted simply by proving the existence of an offer. The prosecution does not have to prove either that the defendant intended to produce the drugs or that the drugs were in his possession. The offer may be by words or conduct (R v Showers [1995] Crim. LR 400). An offence of offering to supply can be prosecuted simply by proving the existence of an offer. The prosecution does not have to prove either that the defendant intended to produce the drugs or that the drugs were in his possession. The offer may be by words or conduct (R v Showers [1995] Crim. LR 400).
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 +===== IMPORTATION =====
  
 Importation Offences Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) states: Importation Offences Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) states:
  
-If any person ​…+If any person ​…
  
 knowingly acquires possession of: knowingly acquires possession of:
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 +
 +===== PRODUCTION =====
  
 Production Offences Evidential and Charging considerations An offence of production is committed when a suspect has some identifiable participation in the process of producing a controlled drug, by manufacture,​ cultivation,​ or any other method. Production Offences Evidential and Charging considerations An offence of production is committed when a suspect has some identifiable participation in the process of producing a controlled drug, by manufacture,​ cultivation,​ or any other method.
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 +===== SUPPLYING ARTICLES =====
  
 Supply of Articles Two summary only offences are created in section 9A of the Act. It is an offence: Supply of Articles Two summary only offences are created in section 9A of the Act. It is an offence:
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 It is best practice to charge different drugs from the same Class in different counts. It is best practice to charge different drugs from the same Class in different counts.
  
-Use of Alternative Charges+=== Use of Alternative Charges ​===
  
 Although an indictment should never be overloaded with unnecessary counts, prosecutors should always consider the use of alternative counts in cases where the defendant'​s culpability is uncertain. For example, where the evidence of intent to supply is not conclusive, an alternative count for simple possession may be justified. On the other hand, if the prosecution case is that the defendant is heavily involved in the supply of drugs, a count for simple possession would detract from that allegation. Although an indictment should never be overloaded with unnecessary counts, prosecutors should always consider the use of alternative counts in cases where the defendant'​s culpability is uncertain. For example, where the evidence of intent to supply is not conclusive, an alternative count for simple possession may be justified. On the other hand, if the prosecution case is that the defendant is heavily involved in the supply of drugs, a count for simple possession would detract from that allegation.
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 For further information,​ refer to Drafting the Indictment, elsewhere in the Legal Guidance. For further information,​ refer to Drafting the Indictment, elsewhere in the Legal Guidance.
  
-Joint Charges+=== Joint Charges ​===
  
 As with any offence involving more than one defendant, prosecutors must consider carefully the rules of joinder. Drug offences call for particular care where drugs are found in premises occupied by more than one person, or in a car in which there is more than one occupant. Mere knowledge of the existence of drugs is not enough to prove an allegation of joint possession. It is necessary to show that each defendant participated in the offence charged. The prosecution may have to prove either that the drugs have come from a pool from which they all might draw or by some other means that each defendant is liable as either a principal or secondary party. As with any offence involving more than one defendant, prosecutors must consider carefully the rules of joinder. Drug offences call for particular care where drugs are found in premises occupied by more than one person, or in a car in which there is more than one occupant. Mere knowledge of the existence of drugs is not enough to prove an allegation of joint possession. It is necessary to show that each defendant participated in the offence charged. The prosecution may have to prove either that the drugs have come from a pool from which they all might draw or by some other means that each defendant is liable as either a principal or secondary party.
  
-Conspiracy+=== Conspiracy ​===
  
 If considering charging conspiracy, then Prosecutors will need to assess whether a conspiracy is the best way of presenting the case or whether substantive offences are more appropriate. In cases involving supply where it is difficult to prove specific acts of supply it may well be more appropriate to proceed by way of a conspiracy count in order to demonstrate the overall criminality of the case. Indictments may contain a conspiracy count as well as substantive counts but the judge will require the prosecution to justify their joinder and in the absence of such justification the prosecution will have to elect whether to proceed on the conspiracy or the substantive counts. Joinder is justified where the interests of justice demand it. This may occur where, for example, there are three defendants, two of whom are husband and wife and there is a possibility of the third being acquitted. Joinder is not generally justified where the substantive counts are merely sample counts illustrative of the way the conspiracy was carried out. If considering charging conspiracy, then Prosecutors will need to assess whether a conspiracy is the best way of presenting the case or whether substantive offences are more appropriate. In cases involving supply where it is difficult to prove specific acts of supply it may well be more appropriate to proceed by way of a conspiracy count in order to demonstrate the overall criminality of the case. Indictments may contain a conspiracy count as well as substantive counts but the judge will require the prosecution to justify their joinder and in the absence of such justification the prosecution will have to elect whether to proceed on the conspiracy or the substantive counts. Joinder is justified where the interests of justice demand it. This may occur where, for example, there are three defendants, two of whom are husband and wife and there is a possibility of the third being acquitted. Joinder is not generally justified where the substantive counts are merely sample counts illustrative of the way the conspiracy was carried out.
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 In particular paragraph 35 (R v Boake and Others) states: In particular paragraph 35 (R v Boake and Others) states:
  
-… ​A third-world offender exploited by others will be likely to be assessed by the judge as having a lesser role: see the expressions '​performs a limited function under direction',​ '​engaged by pressure, coercion, intimidation',​ and '​involvement through naivety, exploitation'​.+… ​A third-world offender exploited by others will be likely to be assessed by the judge as having a lesser role: see the expressions '​performs a limited function under direction',​ '​engaged by pressure, coercion, intimidation',​ and '​involvement through naivety, exploitation'​.
  
 Paragraph 36 continues: Paragraph 36 continues:
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 Failure to comply with an injunction to prevent gang-related violence and drug-dealing activity is not a criminal offence. It is dealt with by way of civil contempt of court by the applicant authority. If the respondent'​s behaviour when failing to comply constitutes a criminal offence, it should be dealt with as such and the applicant should work with the CPS and police (if a local authority) to pursue criminal proceedings. Failure to comply with an injunction to prevent gang-related violence and drug-dealing activity is not a criminal offence. It is dealt with by way of civil contempt of court by the applicant authority. If the respondent'​s behaviour when failing to comply constitutes a criminal offence, it should be dealt with as such and the applicant should work with the CPS and police (if a local authority) to pursue criminal proceedings.
  
-The Ancillary Orders Toolkit provides further detail.+==== The Ancillary Orders Toolkit provides further detail. ​====
  
-Confiscation Order - POCA 2002+=== Confiscation Order - POCA 2002 ===
  
 Prosecutors should also take into account the powers that the court may have to make a confiscation order under POCA 2002. See s.75 of that Act and Schedule 2, paragraph 1 which specifies the provisions in the 1971 Act where a conviction will bring the defendant within s.75. Refer to Proceeds of Crime, elsewhere in the Legal Guidance. Prosecutors should also take into account the powers that the court may have to make a confiscation order under POCA 2002. See s.75 of that Act and Schedule 2, paragraph 1 which specifies the provisions in the 1971 Act where a conviction will bring the defendant within s.75. Refer to Proceeds of Crime, elsewhere in the Legal Guidance.
  
-Serious Crime Prevention Orders (SCPO) ​Section 1 of the Serious Crime Act 2007+=== Serious Crime Prevention Orders (SCPO) ​===  
 +Section 1 of the Serious Crime Act 2007
  
 On conviction in the Crown Court of a serious crime or on application by the DPP to the High Court, if court can be satisfied that a person has been involved in serious crime as long as there are reasonable grounds for believing that the order would protect the public by preventing, restricting or disrupting that person'​s involvement in serious crime in England and Wales. On conviction in the Crown Court of a serious crime or on application by the DPP to the High Court, if court can be satisfied that a person has been involved in serious crime as long as there are reasonable grounds for believing that the order would protect the public by preventing, restricting or disrupting that person'​s involvement in serious crime in England and Wales.
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 See the Serious Crime Prevention Orders guidance, elsewhere in the Legal Guidance. See the Serious Crime Prevention Orders guidance, elsewhere in the Legal Guidance.
  
-Travel Restriction Orders (TRO)+=== Travel Restriction Orders (TRO) ===
  
 In the case of an offence contrary to section 4(2) or 4(3) of the Act, prosecutors should also consider the possibility of the court making a Travel Restriction Order (sections 33 and 34, Criminal Justice and Police Act 2001). (Note that the definition of a drug trafficking offence is different for TRO than POCA.) In the case of an offence contrary to section 4(2) or 4(3) of the Act, prosecutors should also consider the possibility of the court making a Travel Restriction Order (sections 33 and 34, Criminal Justice and Police Act 2001). (Note that the definition of a drug trafficking offence is different for TRO than POCA.)
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 Maximum Penalties Possession of a controlled drug Possession of a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drugs. Maximum Penalties Possession of a controlled drug Possession of a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drugs.
  
-Magistrates'​ Court+=== Magistrates'​ Court ===
  
-Class A drug: Â£5000 ​fine and/or 6 months'​ imprisonment Class B drug: Â£2500 ​fine and/or 3 months'​ imprisonment Class C drug: £1000 fine and/or 3 months'​ imprisonment Crown Court:+Class A drug: £5000 ​fine and/or 6 months'​ imprisonment Class B drug: £2500 ​fine and/or 3 months'​ imprisonment Class C drug: Ã‚£1000 fine and/or 3 months'​ imprisonment Crown Court:
  
 Class A drug: Unlimited fine and/or 7 years' imprisonment Class B drug: Unlimited fine and/or 5 years' imprisonment Class C drug: Unlimited fine and/or 2 years' imprisonment Possession with Intent to Supply Possession of a controlled drug with intent to supply it is an either way offence. The maximum penalty depends on both the trial venue and the class of drug. Class A drug: Unlimited fine and/or 7 years' imprisonment Class B drug: Unlimited fine and/or 5 years' imprisonment Class C drug: Unlimited fine and/or 2 years' imprisonment Possession with Intent to Supply Possession of a controlled drug with intent to supply it is an either way offence. The maximum penalty depends on both the trial venue and the class of drug.
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 Magistrates'​ court: Magistrates'​ court:
  
-Class A drug: £5000 fine and/or 6 months'​ imprisonment Class B drug: £5000 fine and/or 6 months'​ imprisonment Class C drug: £2500 fine and/or 3 months'​ imprisonment Crown Court:+Class A drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class B drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class C drug: Ã‚£2500 fine and/or 3 months'​ imprisonment Crown Court:
  
 Class A drug: Unlimited fine and/or life imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment Supplying Controlled Drugs Supplying a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drug. Class A drug: Unlimited fine and/or life imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment Supplying Controlled Drugs Supplying a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drug.
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 Magistrates'​ court: Magistrates'​ court:
  
-Class A drug: £5000 fine and/or 6 months'​ imprisonment Class B drug: £5000 fine and/or 6 months'​ imprisonment Class C drug: £2500 fine and/or 3 months'​ imprisonment Crown Court:+Class A drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class B drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class C drug: Ã‚£2500 fine and/or 3 months'​ imprisonment Crown Court:
  
 Class A drug: Unlimited fine and/or life imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment Importation or Exportation of Drugs Supplying Controlled Drugs Importing or exporting a controlled drug is an either way offence. The maximum penalties are set out in Schedule 1 of CEMA 1979. Class A drug: Unlimited fine and/or life imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment Importation or Exportation of Drugs Supplying Controlled Drugs Importing or exporting a controlled drug is an either way offence. The maximum penalties are set out in Schedule 1 of CEMA 1979.
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 Magistrates'​ court: Magistrates'​ court:
  
-Class A drug: £5000 fine and/or 6 months'​ imprisonment Class B drug: £5000 fine and/or 6 months'​ imprisonment Class C drug: £2500 fine and/or 3 months'​ imprisonment Crown Court:+Class A drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class B drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class C drug: Ã‚£2500 fine and/or 3 months'​ imprisonment Crown Court:
  
 Class A drug: Unlimited fine and/or life imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment (The penalties for cultivating cannabis under s.6 of the Act are identical to those shown above for producing a Class B controlled drug.) Class A drug: Unlimited fine and/or life imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment (The penalties for cultivating cannabis under s.6 of the Act are identical to those shown above for producing a Class B controlled drug.)
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 Magistrates'​ court: Magistrates'​ court:
  
-Class A drug: £5000 fine and/or 6 months'​ imprisonment Class B drug: £5000 fine and/or 6 months'​ imprisonment Class C drug: £2500 fine and/or 3 months'​ imprisonment Crown Court:+Class A drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class B drug: Ã‚£5000 fine and/or 6 months'​ imprisonment Class C drug: Ã‚£2500 fine and/or 3 months'​ imprisonment Crown Court:
  
 Class A drug: Unlimited fine and/or 14 years' imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment Opium related offences Opium related offences are triable either way. The maximum penalties are as follows: Class A drug: Unlimited fine and/or 14 years' imprisonment Class B drug: Unlimited fine and/or 14 years' imprisonment Class C drug: Unlimited fine and/or 14 years' imprisonment Opium related offences Opium related offences are triable either way. The maximum penalties are as follows:
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 Magistrates'​ court: Magistrates'​ court:
  
-£5000 fine and/or 6 months'​ imprisonment Crown Court:+£5000 fine and/or 6 months'​ imprisonment Crown Court:
  
 Unlimited fine and/or 14 years' imprisonment S.9A Offences Offences under s.9A are summary only. The maximum penalty is as follows: Unlimited fine and/or 14 years' imprisonment S.9A Offences Offences under s.9A are summary only. The maximum penalty is as follows:
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 Magistrates'​ court: Magistrates'​ court:
  
-£5000 fine and/or 6 months'​ imprisonment Obstruction Offences Obstruction offences under the Act are either way offences. The maximum penalties are as follows:+£5000 fine and/or 6 months'​ imprisonment Obstruction Offences Obstruction offences under the Act are either way offences. The maximum penalties are as follows:
  
 Magistrates'​ court: Magistrates'​ court:
  
-£5000 fine and/or 6 months'​ imprisonment Crown Court+£5000 fine and/or 6 months'​ imprisonment Crown Court
  
 Unlimited fine and/or 2 years' imprisonment ​ Unlimited fine and/or 2 years' imprisonment ​
drugs.txt · Last modified: 2017/04/22 20:05 by frescom