“Trick or Treat”?

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Never take sweets from strangers, children are told. I’m not sure if the experience of Donald Green was what grown-ups had in mind however when they gave that warning.

Mr Green pleaded guilty on 19th November to possession of an illegal drug of Class A (Cocaine). It seems that he was at home on Halloween when some local children came trick or treating. Mr Green gave them a few packets of Haribo sweets. Later, he found that he was a few wraps of cocaine light and realised that amongst the Haribo that he handed over were two small bags of Cocaine. He tried to find the children, but to no avail.

One of the children had a police officer for a father who noticed that they were drugs. When the police worked out what had happened and came to Mr Green’s house, he informed them that he knew why they were there, and apologised.

It seems that Mr Green will be sentenced at a later dated (after a Pre-Sentence Report) and we will cover that then. But, given that Mr Green gave drugs to the children, some have asked why he not charged with the more serious offence of supplying drugs?

The offence of possession (contrary to s5 Misuse of Drugs Act 1971) is a relatively minor one which will normally be dealt with by way of a fine (see the drugs guidelines). The offence of supplying a class A drug (contrary to s4(3), particularly to children, is far far more serious and for which most people would go to prison.

s4(3) reads “Subject to section 28 of this Act, it is an offence for a person to supply or offer to supply a controlled drug to another”. And it is in relation to s28 we can see why he was not charged with supply.

Passing a joint to a friend counts as supply, as does getting together with a friend to buy drugs and handing them their share, so this is certainly a supply. The s28 defence however states (s28(3) that it is a defence if- “(i) he proves that he neither believed nor suspected nor had reasons to suspect that the substance or product in question was a controlled drug“.In other words, if the Prosecution could not prove beyond a reasonable doubt that Mr Green did not know that what he was handing over was a drug, then he would be entitled to an acquittal.

This defence is often approached with a healthy dose of scepticism by the courts. Given the circumstances, and the obvious question of why Mr Green would hand over the drugs to people he didn’t know for free, this is one of those cases where he should have had little difficulty in showing his innocence. For this reason, presumably, it was decided that under the Code for Prosecuters, the charge should be for possession only.

Ironically, it is arguable that had the children noticed and given the drugs back in return for the promised Haribo, they would have been guilty of supplying them.

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

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