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Meet Bob. Bob was hanging out at a party chatting with Alice who offered and then fed him a pill. Alternatively, suppose she racks him a line of something snortable. Bob either swallows or snorts these from her hands. Note that at no stage prior to consumption could Bob be said to have possessed these substances in any way.

Has Bob committed any offence?


For clarification: My questions are basically: for Bob to be guilty of an offence, must he have been said to possess the substance (ie there is no relevant separate offence of consuming so it would have to fit into possession), and then: am I incorrect that consuming and possessing are two very different acts that would not be conflated by the law?

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    Analogous questions for Australia and US. One argument is that Bob possesses the drugs while they are in his mouth / nose, and possibly also while they are in his bloodstream. Commented Oct 17, 2022 at 14:22
  • @NateEldredge has that ever been upheld by a court? Seems rather contrived even if only because then someone who'd had drugs forcibly administered to them would then be guilty of possession. Commented Oct 17, 2022 at 14:40
  • For future reference: I almost never intend or want anything to be uncritically accepted by anyone. Commented Oct 17, 2022 at 14:46
  • I don't know whether it has been upheld by a court. Others asked that about Dale's answer in the Australia question and there was no response. Commented Oct 17, 2022 at 15:01
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    However, possession laws generally have an "intent" or "mens rea" requirement. So even if having the drug in one's bloodstream is possession, a person to whom the drug was forcibly administered would not be guilty, because they did not intend to possess the drug. That same defense could be used by a person who had drugs in their pocket (which I think everyone agrees is included in "possession"), but which were put there by someone else without their knowledge. Commented Oct 17, 2022 at 15:04

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My understanding of the question is:

Is consumption of illicit substances in itself an offence?

So far as I'm aware the only such offence is "to smoke or otherwise use prepared opium" contrary to s9(a) Misuse of Drugs Act 1971.

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  • Please see recently posted question level comments above for clarification. Commented Oct 17, 2022 at 14:43
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It will likely depend on the location the use occurred, the nature which Bob consumed and the knowledge Bob had at the time, the knowledge that the complaining witness(s) will testify they saw.

In all likely-hood they wouldn't prosecute the possession charges unless the party was on property that Bob has regular unconditional access to (such as his own house or a property where he can come and go with little restriction such as an office he has a key too) AND the police were able to find evidence of drugs having been on the property. Otherwise, the risk that Bob was unwittingly dosed might come into play as a defense and the risk that it could be successful is too high for a prosecutor to take charges to court.

That said, there could be charges to the use of drugs while "Under the Influence" or "While Intoxicated" as well as certain drug induced actions that would open up "Disturbing the Peace" that can make an arrest. And while Bob has the right to remain silent, people who are high often lack the ability to remain silent... and anything you say can and will be used against you in the court.

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Consumption is legal, but planting, production, possession, trade, import, sale, handing out, and buying of any drug under the BtmG are all illegal without special license or exception. Such a medical exception exists for example for morphine in emergency medicine, or for diamorphine in drug rehabilitation, so a doctor can file a lot of paperwork to get a BtM-Rezept to get their patient one of those as a regular, very strict controlled medicine.

However, back to Bob at the party where Alice is handing out substances. Many street drugs (like Lysergic Acid Diethylamide or Benzoylmethylecgonine) are controlled under the BtM, and politics strives to keep the list of drugs up to date. Of the currently 455 chemicals, only 56 have exceptions under the BtMG. You can find LAD under the shorthand lyse and Benzoylmethylegonine as coca and cocai.

  • Alice acquired the substances most likely by illegal production, import, or buying, as the two examples are not exeptable. However, she was not caught in the act, so no charge.
  • Alice was in illegal possession of the substance till she gave it away. She was not caught in possession, so no charge.
  • Alice also gave them to Bob, so she is guilty of handing them to Bob (Abgabe). This can be prosecuted if Bob 'rats her out'.
  • Bob might be caught in possession the moment he is in the process of consuming it, but he'd most likely be only in possession of a single dose. That is most likely only a geringe Menge (small amount) that can be seen as too little to prosecute effectively and thus usually not prosecuted.

Alice is a heavy criminal now, but Bob? nothing to get him, at best

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