Possession

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There are a significant number of criminal offences in Scotland that relate to the possession of certain things. For example, subject to the exact circumstances of the case, you can be convicted of possessing things like controlled drugsfirearms, false identity documents or salmon.

Possession can extend to non-physical things. For example, most allegations of possessing indecent images of children relate to digital images obtained from the internet. Additionally, you could point to recent possession of stolen money in a bank account (numbers on a computer screen) in an attempt to prove theft.

The concept of possession has wide-reaching implications for Scots criminal law, so how do you define it?

Possession has two elements: knowledge and control. You need both to establish possession.

Knowledge

Knowledge means that you know or are aware of something’s existence. If you don’t know that something exists, then you can’t be in possession of it, even if it is in a location that you have access to.

Martin v HMA (2012 HCJAC 57)

  • A woman was convicted of being concerned in the supply of controlled drugs, namely amphetamines. 
  • The evidence was that she had arrived back at the house she shared with her husband as the police were in the process of searching it. Controlled drugs were found hidden in the freezer. The packages of drugs were said to resemble frozen fish.
  • Further items that might suggest drug supply (scales and a notebook that was said to contain a “tick list” – a drug dealer’s list of customers and their respective debts) were hidden around the kitchen (e.g. behind the microwave). 
  • The husband had shown the police where the drugs were, when they asked him. There was evidence that the woman appeared to be shocked by their discovery.
  • The court was “doubtful as to whether the inference can be drawn that the appellant was aware of the drugs…it cannot be ruled out that the drugs were placed in the freezer on the day on which they were found…even if she was aware of the packages, she would not necessarily have been aware that they contained controlled drugs”
  • Her appeal was allowed, on the basis that the Crown had not proven that she had knowledge of the drugs.

Using the same principle, if someone were to slip an illegal item into your coat pocket or handbag without your knowledge, you would not be in possession of it, legally speaking. You cannot be in control of something unconsciously. This can be tricky to argue, particularly when the item in question is of a size/weight that would ordinarily warrant some sort of investigation. That said, it is always for the Crown to lead evidence to show that you either knew or ought to have known about it.

On a related note, I remember being told a story about a former colleague taking a possession case to trial. The accused’s car had been stopped, and an illegal item (possibly drugs; I can’t remember) had been found in the boot. The accused’s position at trial was along the lines of, “Although I have owned that car for a long time, I have never once opened the boot, so I have never had any idea of what was in there.” He was convicted.

So, knowledge is something that has to be inferred from the particular circumstances.

Control

If you know of something’s existence, then the second question is whether you’re in control of it.

“Control” means having a meaningful say on the disposal of the thing in question.

In other words, if you have a wrap of heroin in your pocket, and you know it’s there, you would be able to exercise control over it by, for example, carrying it from A to B, consuming it or throwing it away.

You don’t have to physically have the item on you to be in control of it. If you were to name all of your “possessions”, you’d probably list things that you regard as belonging to you, like the clothes in your wardrobe, TV, collection of samurai swords etc. You have a meaningful say in what happens to those things, which is why you are assumed to “possess” them.

You can have knowledge of an item but not have control over it. For example, if your friend borrows your car, and you see her load a cache of illegally-obtained salmon into the front passenger seat before immediately driving off, you would probably not be considered to be in possession of said salmon if/when she is pursued and stopped by the police.

More than one person can possess a single item. If you and I both travel to Dumfries in a car with a duffle bag full of cannabis in the boot, and we both know it’s in there, we would both be in possession of the bag and its contents.

Unwillingness to possess something does not tend to mean that you can escape the scope of possession. There are some statutory defences available in certain crimes that tell you what you should do in that situation. For example, s5(4) of the Misuse of Drugs Act 1971 allows you to take possession of controlled drugs in order to destroy them or hand them in to an authorised person (most likely the police).