Drug offences are treated seriously under the law in England and Wales, and an allegation of possession with intent to supply can have significant consequences. Commonly referred to as PWITS, possession with intent to supply is more serious than simple possession because it involves an allegation that a person possessed a controlled drug with the intention of supplying it to someone else.
One of the most important things to understand about PWITS is that the prosecution does not necessarily need evidence that drugs were actually sold. The allegation concerns the person’s intention to supply the controlled drugs in their possession.
This means that cases can depend heavily on the surrounding circumstances and the evidence relied upon to establish that intention.
This article explains what possession with intent to supply means, how it differs from simple possession and actual supply, the types of evidence that may be considered, and what can happen if someone is accused of the offence.
What Does PWITS Mean?
PWITS stands for possession with intent to supply.
The offence is contained in section 5(3) of the Misuse of Drugs Act 1971. In broad terms, the legislation makes it an offence for a person to have a controlled drug in their possession, whether lawfully or otherwise, with the intention of supplying it to another person contrary to the Act.
The prosecution therefore needs to establish more than the simple fact that controlled drugs were present.
A PWITS case will generally involve two central issues:
- Whether the defendant was in possession of a controlled drug; and
- Whether the defendant intended to supply that drug to another person.
Both elements are important.
A person might accept that drugs were in their possession while disputing the allegation that they intended to supply them. Equally, there may be disputes about whether the person actually possessed or controlled the drugs at all.
PWITS vs Simple Possession
It is important to distinguish possession with intent to supply from simple possession.
Simple possession is an offence under section 5(2) of the Misuse of Drugs Act 1971. It concerns unlawful possession of a controlled drug without the additional allegation that the person intended to supply it to somebody else.
PWITS adds that additional element of intention.
For example, imagine that controlled drugs are discovered during a police search. The presence of the drugs may give rise to an investigation into possession. However, if officers also discover evidence which they believe indicates that the drugs were intended for distribution, the investigation may become one involving suspected possession with intent to supply.
Whether that inference is justified depends on the evidence and circumstances of the individual case.
Does “Supply” Mean Selling Drugs?
Not necessarily.
A common misconception is that drug supply requires a commercial sale.
Under the Misuse of Drugs Act 1971, the concept of supplying is wider than simply selling drugs for money. The Crown Prosecution Service (CPS) explains that supplying includes distributing controlled drugs and does not require proof of payment or reward.
Consequently, an allegation of supply can potentially arise even where drugs were intended to be passed to another person without payment.
This distinction is particularly important because someone may believe that, because they were not operating as a dealer or intending to make money, they cannot face a supply-related allegation. That is not necessarily the case.
The precise circumstances and evidence still need to be examined carefully.
Can You Be Charged with PWITS Without Actually Supplying Drugs?
Yes.
Actual supply and possession with intent to supply are separate concepts.
For PWITS, the allegation is essentially that the defendant possessed controlled drugs and intended a future supply. The prosecution does not have to wait until an alleged transaction takes place before bringing such a charge where the evidence is considered sufficient.
This is why police investigations often focus on evidence surrounding the possession of the drugs.
The CPS guidance distinguishes evidence pointing towards a future intention to supply from evidence relating to supply that has already occurred. Where evidence concerns completed past supply, a substantive supply charge may be more appropriate depending on the circumstances.
How Can Intent to Supply Be Proven?
Intent is a state of mind, so there will not always be direct evidence showing exactly what somebody intended to do.
The prosecution can attempt to establish intent in different ways.
Sometimes there may be direct evidence, such as an admission, witness evidence or surveillance evidence.
In many cases, however, the prosecution relies upon inferences drawn from the circumstances.
CPS guidance identifies a number of factors that may potentially support an inference of intent to supply. Importantly, cases are usually considered by looking at the evidence as a whole rather than assuming that one item automatically proves intent.
Quantity of Drugs
The amount of drugs discovered can be an important consideration.
A quantity that appears inconsistent with personal use may be relied upon by the prosecution as evidence supporting an allegation of intended supply.
However, quantity is not necessarily conclusive on its own.
The significance of the quantity can depend on factors including the type of controlled drug, the circumstances in which it was found and the other evidence available.
Therefore, the fact that someone possesses more than a particular amount does not automatically resolve the question of intention. The prosecution must still establish its case on the evidence.
How the Drugs Are Packaged
Packaging may also become relevant.
If drugs have been separated into a number of smaller individual portions or wraps, the prosecution may argue that this is consistent with preparation for onward supply.
For example, CPS guidance specifically identifies drugs divided into small portions and individually wrapped as a circumstance from which an intention to supply may potentially be inferred.
The defence may challenge what conclusion should properly be drawn from the packaging, particularly where there are alternative explanations or where the remaining evidence does not support the prosecution’s interpretation.
Scales, Bags and Other Equipment
Police may also examine objects discovered alongside controlled drugs.
Items that can become relevant include weighing scales, cutting agents, small bags or wrapping materials.
Such equipment may be relied upon where the prosecution argues that it demonstrates preparation of drugs for distribution.
Context remains important.
Some items, including scales and plastic bags, can have entirely legitimate household uses. Their evidential significance will therefore depend on where they were found, their condition, whether they contain relevant residue or forensic evidence, and how they relate to the rest of the prosecution case.
Cash and Financial Evidence
Cash can also attract attention during a drug investigation.
Large amounts of unexplained cash may be investigated where officers suspect drug supply. However, possession of cash does not automatically establish an intention to supply drugs.
CPS guidance specifically recognises an important distinction here: money may potentially provide evidence relating to past supply, but money by itself is not evidence of a future intention to supply.
The circumstances surrounding the money can nevertheless form part of a broader evidential picture.
Questions might include where the money came from, how much was present, how it was stored and whether there is other evidence connecting it to alleged drug activity.
Mobile Phones and Digital Evidence
Mobile phones can play an important role in modern drug investigations.
Police may seek to examine communications and other digital material where legally permitted to do so. Depending on the circumstances, this can include messages, call records and contacts that the prosecution argues are connected with supply activity.
The interpretation of digital evidence can become a significant issue.
A phone may be shared, used by multiple people or contain communications that are ambiguous without their wider context. Establishing who sent particular communications and what those communications actually mean can therefore be important.
Digital evidence should not simply be considered in isolation from the rest of the case.
Documents and Alleged Customer Records
Documents can also be used as evidence.
CPS guidance identifies diaries or other records containing information that tends to confirm drug dealing as potentially relevant evidence of an intention to supply. This might include records that prosecutors argue correspond to customer details, quantities or descriptions of drugs.
Again, the existence of numbers or names on a piece of paper does not automatically establish criminal activity.
The prosecution must establish the significance of the evidence in the context of the case.
What Does “Possession” Mean?
Before the prosecution can establish possession with intent to supply, it must establish possession itself.
Possession does not necessarily mean that the drugs must have been physically held by the defendant when police arrived.
Under the Misuse of Drugs Act, possession can extend to something subject to a person’s control even where it is in another person’s custody.
This can become particularly important where drugs are discovered in shared properties, vehicles, bags or other locations accessible to several people.
Questions may arise about who knew the drugs were present and who exercised control over them.
The fact that drugs are discovered in a particular location does not automatically mean that every person nearby possessed them.
What If You Did Not Know About the Drugs?
Knowledge can be a crucial issue.
Section 28 of the Misuse of Drugs Act 1971 contains statutory provisions relevant to a defendant’s knowledge, belief or suspicion in relation to certain drug offences.
Cases can therefore involve disputes over whether the defendant knew of the existence of the drugs or understood the nature of the substance involved.
This is highly fact-specific.
For example, where drugs are discovered in shared accommodation, inside another person’s belongings or in a vehicle used by several people, establishing knowledge and control may become an important part of the case.
Drug Classification and Why It Matters
Controlled drugs are divided into Class A, Class B and Class C categories.
The classification can significantly affect the seriousness of the offence and the sentencing powers available to the court.
Class A drugs include substances such as heroin and cocaine. Cannabis is generally a Class B controlled drug.
Possession with intent to supply is a serious offence across all three classes, but the maximum penalties differ.
According to current CPS guidance, the maximum penalty for supplying or possessing with intent to supply a Class A controlled drug is life imprisonment.
For Class B and Class C drugs, the maximum is 14 years’ imprisonment and/or an unlimited fine.
These are statutory maximums and should not be confused with the sentence that will necessarily be imposed in a particular case.
How Is a PWITS Sentence Decided?
If a person is convicted of possession with intent to supply, sentencing is not determined simply by identifying the drug involved.
The Sentencing Council guideline requires courts to consider factors including the offender’s culpability or role and the harm, for which quantity is an important consideration.
Roles can range from a leading or significant role through to a lesser role depending on the circumstances.
For example, someone directing or organising commercial drug dealing is likely to be treated differently from a person who performed a limited function under another person’s direction.
The quantity of drugs is also relevant to the harm assessment under the guideline.
After determining the appropriate category, the court considers aggravating and mitigating factors and other relevant sentencing principles before reaching the final sentence.
This is why two people convicted of offences involving the same controlled drug may receive substantially different sentences.
Can PWITS Be Reduced to Simple Possession?
Whether a PWITS allegation ultimately results in a conviction for simple possession depends entirely on the evidence and procedural circumstances.
The CPS recognises that alternative possession counts may sometimes be appropriate where evidence of intent to supply is not conclusive.
However, this should not be interpreted as meaning that a PWITS charge will routinely be reduced.
The prosecution’s evidence must be examined carefully to determine whether the alleged intention to supply can actually be established.
What Should You Do If You Are Accused of PWITS?
A possession with intent to supply allegation can lead to serious criminal proceedings, particularly where Class A drugs or allegations of significant supply activity are involved.
Anyone arrested or investigated should obtain advice from a criminal defence solicitor as early as possible.
Early legal advice can be particularly important because decisions made during the investigation and interview stages may affect how the case develops.
A solicitor can examine matters including:
- The circumstances of the search and arrest;
- The alleged drugs and forensic evidence;
- Whether possession can be established;
- The evidence said to demonstrate intent to supply;
- Mobile phone or other digital evidence;
- Financial evidence;
- The defendant’s alleged role;
- Possible explanations for individual items of evidence; and
- Any applicable legal defence.
Every case turns on its own facts.
Conclusion
Possession with intent to supply is a serious drug offence under section 5(3) of the Misuse of Drugs Act 1971.
The key distinction between PWITS and simple possession is the allegation that the controlled drugs were possessed with the intention of supplying them to another person. Crucially, prosecutors do not necessarily need evidence of a completed drug sale. Intent may instead be inferred from the circumstances.
Quantity, packaging, scales, cash, phones, documents and other evidence can all become relevant, but the significance of each item depends on the wider context. The prosecution must establish the required elements of the offence, and the evidence supporting an alleged intention to supply can be challenged.
Anyone facing a PWITS investigation or charge should seek specialist criminal defence advice as early as possible. A solicitor can assess the evidence, advise on the available options and provide representation throughout the investigation and any subsequent court proceedings.