A change to the Misuse of Drugs Act 1971 to make Ketamine a Class C controlled substance and place it in Schedule 4 part 1 of the Misuse of Drugs Regulations 2001.

Home Office circular 55 / 2005

A change to the Misuse of Drugs Act 1971 to make Ketamine a Class C controlled substance and place it in Schedule 4 part 1 of the Misuse of Drugs Regulations 2001.

  • Broad subject: Crime and Disorder
  • Issue date: Tue Dec 20 00:00:00 GMT 2005
  • From:
    Crime Reduction and Community Safety Group (CRCSG) - Drugs Strategy Directorate, Drug Legislation and Enforcement Unit (DLEU)
  • Linked circulars:
    No Linked Circulars
  • Copies sent to:
    Association of Magisterial Officers, Chairman of Police Authorities, Chief Constable,(Northern Ireland), Chief Constable (Scotland), Chief Officers of Police(England and Wales), Chief Officers of Police (Northern Ireland), Chief Officers of Police(Scotland), Chief Probation Officers, Clerks to the Police Authorities, Crown Court Judges, Director General, National Crime Squad, Magistrates Courts Division, Queens' Bench Division Judges, The Central Council of Magistrates' Courts, The Justices' Clerks' Society, The Law Society
  • Sub category: Drug offences
  • Implementation date: Sun Jan 01 00:00:00 GMT 2006
  • For more info contact:
    Chris Edwards -  020 7035 0464
  • Addressed to:
    The Lord Chief Justice of England Clerks to the Magistrates Courts Association of Chief Police Officers of Englan Wales and Northern Ireland Association of Chief Police Officers in Scotland Chief Clerk to the Crown Court Clerk to the Justices Clerks to the Police Authorities Crown Office and Procurator Fiscal Service Scottish Drug Enforcement Unit Chief Crown Prosecutor Circuit Administrators Court Administrators Magistrates Association + Groups in the Health and Veterinary Sectors

Dear Colleague,

The Misuse of Drugs Act 1971 (amendment) order 2005 (S.I 2005/3178)

The Misuse of Drugs (amendment)(no.3) regulations 2005 (S.I 2005/3372)

The Drugs Act 2005 (commencement no.3) order 2005 (S.I 2005/3053)


1. This circular draws attention to the contents of the above Statutory Instruments (SIs). S.I. 2005/3178 and S.I. 2005/3372 come into force on 1 January 2006. Article 3 of S.I. 2005/3053 brings a number of provisions of the Drugs Act 2005 into force on 1 January 2006.

2. The Misuse of Drugs Act 1971 (Amendment) Order 2005 inserts ketamine into Part 3 of Schedule 2 to the Misuse of Drugs Act 1971 as a Class C Controlled drug. The Misuse of Drugs (Amendment)(No. 3) Regulations 2005 places ketamine in Part 1 of Schedule 4 to the Misuse of Drugs Regulations 2001.

3. The Drugs Act 2005 (Commencement No 3) Order 2005 commences sections 1, 3, 5 and 8 of the Drugs Act 2005 on 1st January 2006. Section 1 of the Drugs Act 2005 inserts a new section 4A into the Misuse of Drugs Act 1971. It stipulates the circumstances which a court must treat as aggravating factors when considering the seriousness of the offence of supply of a controlled drug, when the offence is committed by a person aged 18 or over. It will be an aggravating factor where the drug dealer uses a person under the age of 18 as a courier to deliver a controlled drug to a third person or a drug related consideration to himself or a third person or where the dealer supplies a controlled drug on or in the vicinity of school premises, during the ‘relevant time’.

4) Section 3 of the Drugs Act 2005 amends section 55 of the Police and Criminal Evidence Act 1984, which makes provision with regard to intimate searches. The amendments made by section 3 of the Drugs Act 2005 require that the suspect’s written consent is obtained prior to a drug offence search and allows a court or jury to draw such inference as appears proper should consent to such a search be refused without good cause. The amendments also require the detainee to be informed that authorisation has been given for a drug offence search and the grounds of that authorisation.

5) Section 5 of the Drugs Act 2005 inserts a new section 55A into the Police and Criminal Evidence Act 1984. It enables a police officer to authorise an x-ray or ultrasound scan of a person who is arrested for an offence and who is suspected of swallowing a Class A drug which he had in his possession with intent to supply or to export unlawfully. The procedure must be carried out in a suitable place and by a suitably qualified person. New section 55A requires the suspect to be informed that authorisation has been given for such a procedure and the reason for that authorisation and the suspect’s written consent must be obtained before the procedure is carried out. Should a person withhold consent for such a procedure without good cause then a court or jury may draw such inference as appear proper.

6) Section 8 of the Drugs Act 2005 amends section 152 of the Criminal Justice Act 1988 to make provision for a magistrate’s court to commit a person charged with possession of a controlled drug or a drug trafficking offence into police custody for a period of up to 192 hours to increase the likelihood of any swallowed drugs being recovered.

7. Copies of the above SIs can be obtained from the Stationery Office, or can be downloaded from their website.

Details and Background

Ketamine

8. The Misuse of Drugs Act 1971 (the 1971 Act) and the Misuse of Drugs Regulations 2001 (S.I. 2001/3998) provide the legislative framework for regulating the possession and supply of controlled drugs. Ketamine, currently a Prescription Only Medicine, is mainly used in veterinary practice but can also be prescribed in hospitals for pain management. In recent years, enforcement agencies have become aware that ketamine has increasingly been taken as a recreational drug by those involved in the club scene. In 2002, HM Revenue and Customs identified an emerging trend for parcels of the drug being imported into the UK from India hidden in solution and labelled ‘Rosewater’.

9. As a dissociative anaesthetic, ketamine has hallucinogenic properties and can make the user feel detached from reality. Ketamine can affect the memory and so may, if used over a prolonged regular period, have the potential to disrupt the personal and working life of users. There has been concern that ketamine may lead to psychotic relapse or precipitation of schizophrenia in people who have a tendency towards these particular types of disorders. Mixing ketamine and alcohol can be fatal.

10. Ketamine misuse was considered by the Advisory Council on the Misuse of Drugs (ACMD) who set up a ketamine working group to look at its potential harm. After hearing evidence from a range of experts, in November 2004, the ACMD recommended that ketamine be controlled as a Class C drug under the Misuse of Drugs Act 1971 and placed in Part 1 of Schedule 4 to the Misuse of Drugs Regulations 2001.

11. Caroline Flint, the then Minister for the Drugs Strategy, accepted in principle in February 2005 that ketamine should be a controlled drug subject to the views received in a public consultation that took place between March and June. The consultation was generally supportive of the measure.

12. An Order has already been made that makes ketamine a Class C drug. The Order was debated in both Houses in October and was signed in the Privy Council on 15 November. Both the Order and the amendment to the 2001 Regulations are to come into force on 1 January 2006. This will allow sufficient time to advise the police, the courts and other interested bodies that ketamine is the subject of new controls. The amendment to the 2001 Regulations will ensure ketamine’s safe use by doctors and veterinarians in line with the recommendations made by ACMD.

Drugs Act 2005 Provisions

13. The various sections of the Drugs Act 2005 come into force at different stages because of the requirement to follow certain administrative and consultative processes. Commencing the following sections on 1st January 2006 coincides with amendments to the PACE Codes of Practice in England and Wales.

14. Section 1. The objective of Section 1 of the Drugs Act 2005 is to protect young people from dealers when they are on or in the vicinity of school premises and to protect them from being used as drug couriers. There have been reports that, in a minority of schools, dealing on or in the vicinity of school premises may take place and this is a rising concern for parents. It will be for the courts to define what is meant by “in the vicinity of school premises”. At annex A is further and more detailed guidance including some factors which may be taken into account when considering if an offence was committed on or in the vicinity of school premises.

15. Section 3. Some drug dealers conceal drugs in their body cavities to avoid detection. Prior to the Drugs Act 2005, the Police and Criminal Evidence Act 1984 (PACE) allowed for an intimate search of a suspect to be carried out on the satisfaction of certain conditions. Consent was not required under PACE. However, unless it was impracticable to do so, intimate searches were carried out by a registered medical practitioner or registered nurse and, in practice, such searches would not normally be undertaken without the suspect’s consent. Consequently some suspects would not consent in order to avoid detection. Section 3 of the Drugs Act 2005 is intended to encourage suspects not to withhold consent without good cause by enabling courts to draw such inferences as appear to them to be proper where consent is withheld without good cause.

16. Section 5. Drug dealers may swallow (wrapped) drugs when arrested in order to conceal the evidence. This provision allows for a senior police officer (Inspector and above) to authorise an x-ray and/or ultrasound of a person who is suspected of swallowing a Class A drug which he or she had in their possession with intent to supply or to export unlawfully. The intention is to give police an indication whether a person should detained to allow the drugs to pass through their body. At annex B is further and more detailed guidance regarding the operation of sections 3 and 5 of the Drugs Act 2005.

17. Section 8. Under PACE, a suspect may be detained for a maximum of 96 hours without charge. This is often not a sufficient length of time to allow swallowed drugs to pass through the body. The Criminal Justice Act 1988 made provision for a magistrates’ court to commit a person charged with either possession of a controlled drug or a drug trafficking offence into the custody of a customs officer for a period of up to 192 hours. Section 8 of the Drugs Act 2005 allows a court to similarly remand a person charged with an offence to the custody of a constable for up to 192 hours. At Annex C is further and more detailed guidance regarding the application of section 8 of the Drugs Act 2005 in England and Wales.

Application to the United Kingdom

18. The change in the law applying to making ketamine a controlled drug applies to the whole of the United Kingdom. The amended regulations apply to England, Wales and Scotland only. Northern Ireland will be making its own legislative arrangements. Enquiries can be made to:

Elizabeth Bell
Department of Health, Social
Services & Public Safety
Castle Buildings, Stormont
Belfast BT4 3SQ
Tel: 02890 522 118

19. Section 1 of the Drugs Act applies to the whole of the United Kingdom. Sections 3 and 5 of the Drugs Act 2005 apply to England and Wales. Section 8 of the Drugs Act applies to England, Wales and Northern Ireland. This guidance has the same territorial scope as the provisions of the Drugs Act 2005 to which it relates with the exception of the guidance on section 8 of that Act, which applies only to England and Wales.

20. This circular can also be downloaded from the Home Office website

21. Any inquiries about the contents of this Circular may be sent to Chris Edwards at the following address: Drug Enforcement and Legislation Unit, Home Office, Floor 6, Peel Building, Marsham St, London SW1P 4DF.

Tel: 0207 035 O464.

Yours faithfully
Jeremy Sare

Drugs Legislation and Enforcement Unit
Home Office

Annex A

Section 1: Drugs Act 2005. Aggravated supply of controlled drugs

Summary

The Drugs Act 2005 makes it an aggravating factor, which a court must take into account when deciding on the seriousness of a drug supply offence committed by a person aged 18 or over, to deal drugs on or in the vicinity of school premises. This guidance sets out factors which may assist when determining whether an offence took place “in the vicinity” of school premises.

1. Section 1 of the Drugs Act 2005 stipulates the conditions which, when met, a court must treat as aggravating factors when considering the seriousness of the offence of supply of a controlled drug, when the offence is committed by a person aged 18 or over. Upon the commencement of the provision, on 1st January 2006, it will be an aggravating factor where the dealer supplies a controlled drug on or in the vicinity of school premises, during the ‘relevant time’.

2. The purpose of the provision is to protect young people under the age of 18 from exposure to drug dealing while they are attending school or are in the vicinity of school premises (including while on the way to or from school).

3. Recognising that schools are often used by young people outside conventional school hours the clause establishes the 'relevant time' as any time when the school is in use by a person under the age of 18, and one hour before or after that time. The determining factor is whether the school premises are, are about to be or have just been in use by persons under the age of 18 because the clause focuses on protecting children at school regardless of whether they are present during conventional school hours. Therefore the provision covers any occasion on which persons under the age of 18 use the premises, including occasions during school holidays and at weekends. It also encompasses the use of school premises for community purposes, such as their use as a church, provided that a young person under the age of 18 is participating in that use.

4. Section 1 encompasses all school premises including buildings (main and ancillary), playing fields and dormitory buildings. A school is a school as defined by the relevant educational legislation. In England and Wales section 4 of the Education Act 1996, in Scotland section 135(1) of the Education (Scotland) Act 1980, and in Northern Ireland Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986.

5. Where a school is split over a number of sites, dealing drugs within the vicinity of any school premises on any site falls within the scope of the clause. Where a school has residential accommodation which is not on the site where teaching takes place then this will also be caught, so long as it is not occupied solely as a dwelling by a person employed at the school.

6. The Act does not define what constitutes 'in the vicinity' of school premises, because to do so runs the risk of excluding from the term circumstances which it may be difficult to foresee at present or which are local to a particular school which a court may want to include in a particular case.

7. For example a dealing site may be close to a school as the crow flies but separated from it by a railway line which is not bridged for some distance from the school and may not therefore be in the vicinity of it for practical purposes. Conversely a dealing site may be some distance from the school using conventional footpaths or roads, but be easily accessible by less conventional means, for example, by trespassing. In the above example a hole in a fence may allow the unauthorised crossing of the railway line at a place other than a bridge.

8. It will therefore be for the courts to determine what constitutes “in the vicinity of a school” on a case by case basis in the light of local knowledge.

9. When considering what might constitute dealing in the vicinity of school premises the following factors may be of relevance, though these are not intended to be exhaustive.

  • the risk posed by drug dealing to young people when attending school is of primary concern.
  • distance from the school is an important but not necessarily determinative factor.
  • the practical accessibility of a location to young people is an important factor, irrespective of whether the location is open to public access or is on private property.
  • any premises, including cafes and private dwellings, that are in the vicinity of a school may be in the vicinity.
  • other points in the vicinity of a school at which young people will regularly gather (including but not restricted to bus stops, car parks, waste ground, fast food outlets or public parks) on the way to or from school are of particular concern.
  • when considering whether a place is one at which young people regularly gather, consideration should be given to the informal routes they may take to school or between school premises located on different sites or two facilities used by the school such as swimming pools (eg by trespassing on private land) as well as public footpaths and roads.
  • drug dealing to young people on the way to or from school on public and private transport may be considered to be in the vicinity of school premises depending on the circumstances.


Annex B

1.Section 3:Drugs Act 2005. Drugs offence intimate searches -Pace: Section 55

  • Section 3 of the Drugs Act 2005 amends section 55 of the Police and Criminal Evidence Act 1984 (PACE) with regards to the authorisation and carrying out of drug offence intimate searches.
  • The key changes are:
    • A drug offence intimate search can only be carried out if appropriate consent is given in writing.
    • Where such a search is proposed an appropriate officer shall inform the suspect of the authorisation for the search and the grounds for giving the authorisation.
    • The authorisation, the grounds for the search and the fact that appropriate consent has been given must be recorded on the custody record.
    • If consent is refused without good cause, a court can draw such inferences as appear proper
    • A drug offence intimate search can only be carried out if appropriate consent is given in writing.
    • Where such a search is proposed an appropriate officer shall inform the suspect of the authorisation for the search and the grounds for giving the authorisation.
    • The authorisation, the grounds for the search and the fact that appropriate consent has been given must be recorded on the custody record.
    • If consent is refused without good cause, a court can draw such inferences as appear proper.
  • Provision within section 55 of PACE for carrying out an intimate search to find other harmful items, such as articles which could be used to cause injury or damage, interfere with evidence or assist escape has not been changed.
  • Section 55 of the Police and Criminal Evidence Act (PACE) and Annex A of PACE Code C as amended provide clear guidance on the procedure for carrying out an intimate search of a detained person to find drugs. The key points are outlined below:
    • An officer of the rank of inspector or above can authorise an intimate drug offence search if they have reasonable grounds to believe that the detainee may have a Class A drug concealed on them and was in possession of it prior to his arrest with the intention to supply it to others or to export it unlawfully
    • Authority may not be given unless the officer has reasonable grounds for believing the drugs cannot be found by any other means
    • The officer may give the authority orally or in writing. If given orally, it must be confirmed in writing as soon as practicable
    • A drug offence intimate search may only be conducted by a suitably qualified person. This would be a registered medical practitioner or registered nurse only
    • An intimate search which is only a drug offence search may only be carried out at a hospital, a registered medical practitioner’s surgery or other premises used for medical purposes
  • Before the detainee is asked to give appropriate consent they must be warned that if they refuse without good cause their refusal may harm their case if it comes to trial and the court may draw such inferences from the refusal as appear to it to be proper. This warning may be given by a police officer or designated detention officer of staff custody officer and a detainee who is not legally represented must also be reminded of their right to free legal advice.


  • Good cause for refusing consent, might include:
    • health, on the advice of the Forensic Physician or Radiologist
    • pregnancy, a reasonable belief that the detainee is pregnant

 

There is no basis to refuse consent for cultural or religious reasons 

The appropriate consent (which will vary depending on the age of the detainee) given in writing will be sought for such a procedure to be carried out.

  • The detainee’s custody record must be used to record the following:
    • who gave authorisation
    • the grounds for giving authorisation
    • the reasons for the search including the reasons to believe the article could not otherwise be removed
    • the giving of the warning of the consequences of refusing consent
    • that appropriate consent was given or (as the case may be) refused
    • which parts of the detainee’s body were searched
    • the reasons for searching those particular parts of the detainee’s body
    • who carried out the search
    • who was present
    • the result



This information must be recorded as soon as practicable after the completion of the search.

  • Section 55(12)(a) and (b) PACE outlines the role of the custody officer in seizing and retaining anything found during an intimate search.
  • On an annual basis each Chief Constable will report on the total number of drug offence searches carried out under these powers and their results. In addition, each Chief Constable will also report on the total number of searches under section 55 of PACE, the number conducted by a suitably qualified person, the number conducted by a person other than a suitably qualified person but in the presence of such a person and the results of those searches.

2. Section 5:X-rays and ultrasounds -Pace: Section 55A

Section 5 of the Drugs Act 2005 introduces a new section 55A to the Police and Criminal Evidence Act 1984 (PACE) which enables the police to have taken x-rays and / or ultrasounds of persons in police detention suspected of swallowing Class A drugs and of being in possession of those drugs with the appropriate criminal intent prior to arrest provided certain conditions are met.

Appropriate criminal intent means, for these purposes, having possession of controlled drugs with intent to supply them or to export them unlawfully. In other words the provisions are targeted at drug dealers, not drug users.

The procedures to be adopted in England and Wales when exercising the powers in section 55A of PACE as inserted by section 5 of the Drugs Act 2005 are as follows:

  • An officer of the rank of inspector or above will consider if they have reasonable grounds to believe that a person arrested and in police detention may have swallowed a Class A drug and been in possession of it prior to arrest with the appropriate criminal intent, i.e. with the intention of supplying it to another or exporting it unlawfully.
  • If the officer has such grounds, he/she must request a Forensic Physician to determine the appropriateness of the request to carry out an ultra sound scan or x-ray or both with a view to obtaining relevant evidence and will ensure that the detainee is notified of that authorisation and the reason for it. The Forensic Physician will refer the detainee to the appropriate medical facility and make clear whether the referral is for evidential, medical or for dual purpose.
  • Forces that use healthcare professionals other than Forensic Physicians in their custody areas need to consider circulating internal guidance on procedures that should be followed.
  • Before the detainee is asked to give appropriate consent they must be warned that if they refuse without good cause their refusal may harm their case if it comes to trial and a court may draw such inferences from the refusal as appear to it to be proper. This warning may be given by a police officer or designated detention officer of staff custody officer and a detainee who is not legally represented must also be reminded of their right to free legal advice.
  • Good cause for refusing consent, might include:
    • Health- on the advice of the Forensic Physician or Radiologist
    • regnancy- a reasonable belief that the detainee is pregnant
  • There is no basis to refuse consent for cultural or religious reasons.
  • The appropriate consent (which will vary depending on the age of the detainee) in writing will be sought for such a procedure to be carried out.
  • A Forensic Physician, (a medical practitioner retained by the police, registered with the General Medical Council), will refer the detainee to the place where the x-ray or ultrasound will take place. This must be a hospital, registered medical practitioner’s surgery or some other place used for medical purposes. We envisage that it will normally be a hospital.
  • The appropriate consent (which will vary depending on the age of the detainee) in writing will be sought for such a procedure to be carried out.
  • The Forensic Physician may have to be called in at an earlier stage in the procedure (possibly before an x-ray or ultrasound has been authorised in this way) if there is any reason to be concerned as to the health of the detainee. Current advice from the Association of Forensic Physicians is that persons suspected to have swallowed dugs should be removed to a hospital in the first instance. In cases of ‘imminent risk’ officers should consider the appropriateness of using an ambulance to transport the detainee to hospital. When dealing with those detainees who may have swallowed drugs the provisions of Code C:9 and Annex H should always be borne in mind.
  • At the hospital, registered medical practitioner’s surgery or some other place used for medical purposes, the scan or x-ray must be carried out by a suitably qualified and regulated healthcare professional. In the case of an x-ray it must be carried out in compliance with the relevant regulations regarding exposure to x–rays. Thus an individual will be safeguarded from medically inappropriate use of a procedure and from individual or cumulative exposure to an unsafe dose of x-rays.
  • The police will transport and accompany the detainee to hospital, registered medical practitioner’s surgery or some other place used for medical purposes and remain with them, unless there were medical reasons why an ambulance should be used as transport. The detainee would wait for access to the facilities on the same basis as any person, with priority decided by medical staff on the basis of clinical need.
  • Where the detainee gives consent for an X ray or ultrasound to be taken time at the hospital, registered medical practitioner’s surgery or some other place used for medical purposes for medical treatment, the period in detention at hospital or elsewhere would count towards the total period of detention allowed under PACE. The detainee would be returned to the police station after the x-ray or ultrasound unless there were medical reasons for remaining at the hospital. In such a case, unless the person is being questioned for the purpose of obtaining evidence relating to an offence (section 41(6) of PACE), the further period of detention at hospital would not count towards the total period of detention under PACE.
  • Where it is thought that the detainee is at imminent risk, for example, because of swallowing drugs, the Forensic Physician may also refer the detainee to a hospital, registered medical practitioner’s surgery or some other place used for medical purposes on health grounds alone for an x ray or ultrasound scan. In this case the scan or x-ray (if it has also been properly authorised and consented to as above) would have a dual purpose. The hospital, registered medical practitioner’s surgery or some other place used for medical purposes would keep a record for medical purposes and provide police with a record for evidential purposes. If consent to the evidential x-ray or ultrasound scan was refused, any x-ray or ultrasound scan obtained with consent for medical purposes would be excluded material for the purposes of sections 11 and 12 PACE and the hospital could not be required to provide a copy for police to use as evidence.
  • Where consent has been given the time would count for the purposes of PACE because the police would be obtaining evidence in relation to the offence.
  • Where consent has been refused the procedure would solely be for medical purposes and so would not count under section 41(6) of PACE
  • Any charge levied by the hospital, registered medical practitioner’s surgery or some other place used for medical purposes will be met by the police.
    • The detainee’s custody record will be used to record the following:
      • the authorisation to take the x-ray or carry out the ultrasound scan (or both)
      • the grounds for giving the authorisation
      •  the giving of the warning about the consequences of refusing consent
      • that appropriate consent was given or (as the case may be) refused
      • if an x-ray is taken or an ultrasound scan carried out:
        • where it was taken or carried out
        • who took it or carried it out
        • who was present
        • the result

This information must be recorded as soon as practicable after the x-ray has been taken and/or ultrasound has been carried out.

  • Local agreements/protocols (as used by HMRC) between an identified healthcare facility and the police should be considered so that the following issues can be formally agreed:
    • The role of the Forensic Physician
    • Local agreements/protocols (as used by HMRC) between an identified healthcare facility and the police should be considered so that the following issues can be formally agreed:
    • Record maintenance/frequency of exposure
    • Ownership of resultant images
    • Ownership of medical records
  • On an annual basis each Chief Constable will report on the total number of x-rays and the total number of ultrasounds carried out under these powers and the results of both.

Annex C

Extended detention of suspected drug offenders

Drugs Act 2005, section 8

Amendment to Section 152 of the Criminal Justice Act 1988 (c.33).

Section 8 is applicable in England, Wales and Northern Ireland. This guidance relates to its application in England and Wales. The Northern Ireland Office will issue separate guidance regarding its application in Northern Ireland.

Introduction

1. Under sections 42-44 of the Police and Criminal Evidence Act 1984 (PACE) a suspect can be detained without charge for a maximum of 96 hours from the relevant time. In cases where a suspect has swallowed or otherwise concealed drugs internally this period is often insufficient to recover the drugs for evidence.

2. With effect from 1st January 2006, section 152 of the Criminal Justice Act 1988 (CJA) is extended by section 8 of the Drugs Act 2005. The extension allows a magistrates’ court to commit a person aged 17 or over charged with an offence under section 5(2) of the Misuse of Drugs Act 1971 (possession of a controlled drug) or a drug trafficking offence, into police custody for up to 192 hours to increase the likelihood that swallowed evidence can be recovered. Before this amendment, section 152 of the CJA only permitted a magistrates’ court to remand a person into the custody of a customs officer for the period of 192 hours.

3. For the purposes of section 152, drug trafficking offence is defined by section 151(5) CJA 1988 and includes the following offences:

(a) any of the following offences under the Misuse of Drugs Act 1971:

  • · section 4(2) or (3) (unlawful production or supply)
  • section 5(3) (possession with intent to supply)
  • section 8 (permitting certain activities)
  • section 20 (assisting in or inducing the commission outside the UK of an offence punishable under a corresponding law).

b) Attempting, conspiring or inciting, or aiding, abetting, counselling or procuring, the commission of any offence specified in (a) above.

Continuing health risks

4. Any drugs swallowed may leak from the packages containing them. The risks to health arising from internal concealment of drugs must be managed in accordance with the continuing risk assessment process required by Code C paragraphs 3.6 to 3.10 and Code C section 9 (Care and treatment of detained persons). Code C paragraph 9.3 and Note 9CA emphasise the need to pay special attention to these cases. [Note: all reference to Code C in this section relates to the revised version commenced 1 January 2006]

5. This will apply throughout the person’s period in police custody before and after charge and whilst remanded under section 152.

6. All police officers and police staff who might have any direct contact with the person in the custody suite or when involved in escorting the person to and from court should be suitably trained and must be made aware of:

  • the medical and evidential significance of internal drug concealment
  • the need to report and record full details of any such relevant occurrences.

Heath risks to police officers and police staff engaged in recovering drugs passed through the digestive system.

7. Police forces are reminded of their responsibility under relevant legislation to ensure the health and safety of police officers and police staff engaged in the recovery of excreted drugs. They will wish to undertake an appropriate assessment of the risks and put in place control measures to address them, including the provision and use of protective equipment and the introduction and maintenance of an immunisation programme.

Suitable Custody Facilities

8. The recovery of evidence from persons suspected of swallowing drugs will require single occupancy cell toilet facilities to allow the drugs to be safely recovered and at the same time, provide evidential continuity.

9. Not all police stations are equipped with such facilities. It will be necessary for police forces to ensure, from existing resources, that a suitably equipped police station will be available before applying for a remand under section 152 and to inform the court of that police station when making the application.

Decisions to charge and refuse bail

10. Decisions to charge a suspect with an offence for which a remand may be sought (see paragraphs 2 and 3) and to authorise detention after charge will continue to be made and recorded in accordance with The Director of Public Prosecution’s Guidance issued under section 37A PACE and section 38 PACE (Duties of custody officer after charge). As this will be a remand into police custody, crown prosecutors will apply the threshold test when making their charging decisions.

Decisions to apply for remand under section 152

11. An application under section 152 will require sufficient evidence to satisfy the court that a remand to the custody of police is appropriate in the circumstances. Although what is 'appropriate' is not defined, it will usually apply when the main reason for seeking the remand is to enable police to recover swallowed drugs for evidence

12. The court may grant any period up to 192 hours. This is effectively 8 days measured from the date/time the court makes the order for the remand.

13. It is not necessary to exhaust the PACE provisions regarding the length of detention in police custody before charging a suspect and making an application under section 152.

Applications under section 152 should normally be made in open court unless to do so would compromise a source or intelligence gathering technique.

(a) Recovery of drugs

14. If the suspect has been charged and bail after charge refused, a remand into police custody under section 152 will usually be appropriate if the officer in charge of the investigation and CPS have reasonable grounds to believe that:

  • the suspect has swallowed or otherwise concealed drugs internally
  • some or all of these drugs are expected to be produced, excreted or to otherwise become available to be recovered after the suspect has been taken to court
  • a remand into police custody is necessary to enable police to recover the drugs.


15. The results of any x-rays and/or ultrasound scans taken under section 55A PACE introduced on 1st January 2006, supporting admissions, drug test results or other circumstantial evidence such as a refusal to eat or defecate would be relevant to the above decisions and considerations, particularly if no drugs have been produced at the police station.

(b) Further reasons

16. Further reasons for a remand into police custody may arise when:

  • a charged courier agrees to co-operate by meeting accomplices to enable police to make further arrests
  • police wish to interview the charged person about drug trafficking offences in addition to those already charged.


17. When considering whether to use a co-operating courier to assist in arresting accomplices, the officer in charge of the investigation should, having regard to the likely length of the operation:

  • ensure that officers and staff working in the custody suite or involved escorting the person are aware of the importance that accomplices do not discover that the courier has been intercepted and arrested
  • assess the likelihood that accomplices will be alerted by the person’s appearance in open court after charge and/or any application (initial or further) made in open court
  • take account of the risk that accomplices may be alerted when deciding whether to seek a remand for less than the maximum 192 hours.

The officer in charge must bear in mind that the use of the co-operating courier must be in accordance with RIPA legislation and associated guidance.

(c) All cases

18. The officer in charge of the investigation and CPS should assess and agree the remand period to be requested and the reasons to be given in open court when the application is made.

Making application to the magistrates’ court

19. Case papers will be prepared and submitted in accordance with the Prosecution Team Manual of Guidance. The CPS prosecutor will present the applications.

20. The granting and length of the remand is entirely at the discretion of the magistrates’ court according to the reasons presented. The maximum period that can be granted on any one occasion is 192 hours.

21. If the period granted is insufficient to enable police to recover the drugs, or as the case may be, complete an operation to arrest accomplices, a further application may be made when the person is brought back to court.

Transfer of detained persons to and from court

22. Police will need to make suitable arrangements to ensure evidential continuity in recovering further drugs, preventing escape and minimising health risks during any period that the charged person is:

  • being taken to court for any application or further application
  • at court; and if the application is granted
  • being taken to a police station.

23. The above matters may require police to carry out all the escort duties rather than the PECS appointed prisoner escort service contractor and to agree the arrangements with the court concerned.

Application granted – custody records and detention under section 152

24. If the court grants the application, they will issue a warrant of commitment to police custody. It will direct police to keep the person in custody and specify the date and time at which the person must re-appear before the court. Commitment warrants must be returned to the court with the person when the hearing resumes and for this reason they should be kept with the custody record.

25. A person remanded under section 152 is not in police detention and not subject to the detention provisions and time limits in sections 37 to 44 PACE. The person may be detained at any suitable police station (see paragraphs 7 and 8 regarding custody facilities) and the station need not be the one where the person was charged and from which they were taken to court.

26. The commitment warrant is the authority to keep the person in police custody and a new custody record should be opened when the person arrives from court. The reasons for the remand presented in court represent the grounds for detention and should be noted accordingly on the record.

27. Although detention under section 152 is not subject to review under section 40 PACE, the need for the person to remain in police custody should be periodically reviewed (Note all reference to Code C in this section relates to the revised version commenced on 1 January 2006).

When the need for detention under s.152 ceases

28. If the reasons for the remand cease to apply in sufficient time to make it practicable to return the person to court before the date specified in the warrant, the court and CPS should be informed so that the necessary arrangements can be made. These will include notifying any solicitor representing the person.

29. This situation may arise if before the specified return date, police are satisfied that all the swallowed drugs have been recovered or that no drugs were swallowed or that an operation to arrest accomplices is complete or abandoned, or that the charge should be withdrawn and proceedings should be discontinued.

30. Decisions to withdraw charges or discontinue proceedings and related action will continue to be taken in accordance with The Director’s Guidance.

Action if application refused

31. The officer in charge of the investigation and the CPS should always consider and agree what action should be taken if an application under section 152 is refused.

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