Under which section can a defendant defend a drug possession charge by claiming they did not know or suspect the substance was controlled?

• A. S5(2) Misuse of Drugs Act 1971
• B. S28 Misuse of Drugs Act 1971
• C. S4(3) Misuse of Drugs Act 1971
• D. S5(3) Misuse of Drugs Act 1971

Answer: (B)

The key idea is that there is a narrow mental-element defence for possession of a controlled drug: you can escape liability if you genuinely did not know the substance was controlled and did not suspect it. This defence sits in Section 28 of the Misuse of Drugs Act 1971. If a defendant can convince the court that they did not know or suspect the substance was a controlled drug, the possession charge can fail even though the substance itself is controlled.

This matters because possession offences on the face of them can be strict about the drug being controlled, but Section 28 recognises a lack of knowledge as a valid defence in those circumstances. For example, if someone unknowingly possesses a substance and reasonably believes it is something harmless, they may be able to rely on this section to avoid conviction.

The other options refer to different provisions: the basic possession offence is captured by the section that creates liability for possessing a controlled drug, while other sections deal with possession with intent to supply or other offences. Those do not provide the specific knowledge-based defence that Section 28 offers.