Possession, Warner and S.28
| Author | I. H. E. Patient |
| DOI | 10.1177/002201838905300105 |
| Published date | 01 February 1989 |
| Date | 01 February 1989 |
| Subject Matter | Article |
POSSESSION,
WARNER
AND
S.28
1. H. E. Patient*
Warner v. Metropolitan Police Commissioner! has been asource
of difficulties to judges and academic writers alike. In particular,
the assessment of its effect after the Misuse of Drugs Act 1971
continues to prove a bewildering task, as has been recently
demonstratedyet again in two decisions, R. v. Lewls: and especially
R. v. McNamara. 2
The
standard situation with which we are
concernedis the following: The accused is found to have prohibited"
drugs on him. His defence is that he was not aware of their
presence or that he believed that the substance in his control
was something other than prohibited drugs. In such a case the
prosecution may have difficulties in establishing "possession".
Possession is wider than physical custody or control. Possession
requires, beyond mere control, also a mental element, namely the
awareness of such control. To use an often quoted example, if
someone were to slip drugs secretly into your pocket you would
have control of those drugs, but not possession. Only if and when
you become aware of the drugs in your pocket can you be said to
have possession, for only now has the corpus possessionis been
augmented by the animus possidendi.
The
accused who denies
knowledge of the drugs in his control therefore denies that he has
possession of them.
To meet this kind of defence the courts in pre-Warner days
developed a very stringent approach which in effect largely
dispensed with the requirement of a mental element for possession.
An illustration is Lockyerv. Gibb" where the accused, when found
• Faculty of Laws, Queen Mary College, University of London.
1[1968]2 All
E.R.
356.
2Both are reported in [1988]The Times, February 16th. A short abstract of and
commentary on each case is to be found in [1988] Crim.L.R. 517 and [1988]
Crim.L.R. 440 respectively.
3The term "prohibited" drug is used at this stage to cover both "scheduled" and
"controlled" drug, thus accommodating the relevant terminology both before and
after the Misuse of Drugs Act 1971.
4[1966]2 All
E.R.
653.
105
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