(a) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or

(b) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.

The defendant and his girlfriend arrived by car at a prison where they were to visit a friend. The defendant discovered cannabis in tinfoil in the glove compartment of the car and at once opened the car door, dug a hole in the gravel and buried the package there. The defendant was, however, being observed and was arrested.

The Crown accepted that the defendant innocently found himself a possessor of cannabis. The Crown accepted much of the defendant's account, in particular that he believed the drugs to be his father's, knew nothing of their presence in the car and was fearful of being found in possession, being at liberty on licence following a drug-related conviction.

Before trial, the judge ruled that the defendant could not rely on the defence within s. 5(4)(a) of the Misuse of Drugs Act 1971, which turned, inter alia, upon whether the possessor 'as soon as possible after taking possession of (the drug) took all such steps as were reasonably open to him to destroy (it)'.

The defendant challenged that ruling. Lord Justice Longmore said that for the defence under s. 5(4)(a) to apply it was not sufficient that in the end the forces of nature would have destroyed the buried drugs, and the statutory defence envisaged that the act of destruction should be that of the defendant. Moreover, the concept of 'destruction' depended on a great deal more finality than was displayed here.

The Court of Appeal, Criminal Division, so held when dismissing the appeal against conviction of Murphy following his plea of guilty at Crown Court to an offence of possession of cannabis following a plea of guilty on rearraignment to an offence of possession of a class B drug, for which offence the judge imposed a conditional discharge of two years, together with orders for destruction and for costs. The court substituted an absolute discharge and discharged the costs order.

This defence envisages two distinct situations. The purpose in taking possession of the controlled drug under the Misuse of Drugs Act 1971, s. 5(4)(a) must be to: prevent another from committing (in the future) or continuing to commit an offence in connection with that drug.

The first situation might arise where a parent, guardian or carer finds a child in possession of something which appears to be a controlled drug. Provided that that person takes all reasonable steps to destroy the drug or to take it to someone lawfully entitled to possess it (such as a general practitioner or police officer), as soon as possible after taking possession of it, he/she commits no offence of unlawful possession.

Leonard Jason-Lloyd, in Drugs Addiction and the Law, also gives an example of a wife discovering that her husband has unlawful possession of cocaine and either throws it into a fire or takes it as soon as possible to a police station or to a doctor. In this case she has taken possession of the drug and took reasonable steps either to destroy it or take it to a person legally entitled to receive it in order to prevent her husband committing or continuing to commit an offence with regard to that drug.

The second situation (under s. 5(4)(b) may arise where a person finds what he/she believes to be a controlled drug and takes possession of it solely for the purpose of delivering it to a person lawfully entitled to take custody of it. The defendant must prove that this was his/her intention at the time of taking possession; see R v Dempsey (1985) 82 Cr App R 291.

In Dempsey the Court of Appeal held that there was no supply by the possessor of the drug to the custodier on the facts of that particular case. Michael, who was a registered drug addict and in lawful possession of a controlled drug, asked Maureen to hold some of the drug for him while he went to the toilet to inject himself with the rest of it. The police then arrested both of them. The Court of Appeal held that whether or not Michael had supplied the drug to Maureen was a question of fact, and since the matter was not left to the jury to decide, his conviction for an offence contrary to the Misuse of Drugs Act 1971, s. 4(3)(a), had to be quashed. The court took the view that Michael had transferred the drug to Maureen either for her own use or to hand on to someone else, in which case there would have been a supply, or he may simply have given them to her for safekeeping and to return to him, in which case there was no supply. The reason for this distinction is that the court took the view that a supply only occurs where there is a transfer for the benefit of the transferee (Maureen) rather than the transferor (Michael).

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