Knowingly concerned in fraudulent evasion of a prohibition of a drug of a temporary class

Points to prove

• 1. A prohibition on the importation (or exportation) of the drug was in force under s 3(1) of the Misuse of Drugs Act 1971
• 2. The goods were a drug subject to temporary control under a temporary class drug order made under s 2A MDA 1971, and were not excepted from the prohibition
• 3. There was a fraudulent evasion, or attempt at evasion, of that prohibition in relation to the drug
• 4. The defendant was, in relation to the drug, in any way knowingly concerned in that fraudulent evasion or attempt — he knew the goods were goods subject to a prohibition and participated in the venture (knowledge of the precise identity or class of the drug is not required: R v Forbes [2001] UKHL 40)

Defences

• Statutory exception — s 3(2) MDA 1971: no prohibition applies where the importation/exportation is excepted by regulations under s 7 MDA 1971 or by provision made in the temporary class drug order by virtue of s 7A, or takes place under and in accordance with a licence issued by the Secretary of State and in compliance with its conditions
• Lack of knowledge (negates 'knowingly concerned'): the defendant did not know a venture involving prohibited goods was in being. NB the s 28 MDA 1971 defence does not apply to customs offences

Mode of trial & maximum penalty

Either way — Summary: 6 months' imprisonment and/or a fine; Indictment: 14 years' imprisonment

Sources

• www.legislation.gov.uk/ukpga/1979/2/section/170
• www.legislation.gov.uk/ukpga/1979/2/schedule/1
• www.legislation.gov.uk/ukpga/1971/38/section/3