Can You Be Convicted for Passing Off and Selling Legal Substances as Drugs?

Earlier this week it was revealed that, before his death, while being chased by a police officer, Rashan Charles had attempted to swallow a plastic wrap containing a mixture of caffeine and Paracetamol.

The news was met with speculation as to why he would have done this, given that neither of these substances are illegal. Could it have been that he simply didn't trust the police, and didn't want them to find anything on him they could possibly mistake for controlled drugs? Such distrust would have been understandable, given that two black men had already died following incidents involving the police within the previous six months.

Alternatively, it's possible that the mixture was being sold as heroin, which some – including VICE's drugs columnist, Max Daly – say isn't uncommon. While there's no real evidence to suggest this was the case, and while the true motivation for Charles swallowing the wrap might never come to light, it raises an interesting legal question: can somebody be charged for pretending legal substances are illegal drugs in order to sell them? Is this actually a crime, and if so, what offence does it fall under?

I got in touch with drug law expert Laura Baumanis of Olliers Solicitors to find out.

According to Baumanis, selling anything that is purported to be an illegal narcotic could potentially land someone with a substantial prison sentence. "If somebody did this, they could be charged for offering to supply a controlled substance," she told me. "If they were offering something else but claiming it was cocaine or cannabis, and got caught with it, they could be committing the offence of offering to sell the drug they said it was."

There's slightly less risk involved in selling counterfeit (or "snide") drugs than there is in dealing the real thing, though. Baumanis pointed out that although a substance's legality doesn't negate the fact it's been offered as an illegal drug, it can still act as a mitigating factor when it comes to sentencing. This was the case for fake-cocaine dealer Jamie Taylor from Middlesbrough, who sold washing powder to his unsuspecting customers. After admitting to the police that he had been passing the powder off as coke and boasting that he made up to 50 sales a night, he was jailed for just under three years. The judge pointed out that allowances had been made for the fact the drugs were fake.

However, according to Baumanis, if a substance isn't what the dealer claims it is, it can sometimes result in a harsher punishment being dished out. She told me that if a particularly noxious substance is sold in place of drugs, it can actually increase the likelihood of a longer sentence. "If someone had consumed [such a substance], it could have severe consequences," she says. "The implications of what would happen if the person took the substance would certainly be something that was taken into consideration when it came to sentencing."

Baumanis added that there's also a possibility that the dealer would be charged with an even more serious crime if the substance harmed the user. "If someone died, then depending on the circumstances, it could be manslaughter," she said. "There's also an offence under the Offences Against the Person Act of administering poison or noxious things with intent [to injure, aggrieve or annoy]. It would all depend on the person's intent when they sold the substance, what they thought the person who bought it would be using the item for and what they foresaw the consequences as."

What about the deception involved? Is there any possibility of fraud charges being levelled against dealers who sell legal substances as drugs, given that they're essentially selling a counterfeit product? Baumanis told me that although there's an argument for the sale of snide drugs being classed as fraud, there's little chance of the dealer actually being charged for this offence. "I suppose he is making a misrepresentation for gain, which is the definition of fraud, but it wouldn't come under that," she told me. "It would be much more likely to come under the offence of offering a controlled substance for sale."

That snide-drug dealers are charged with dealing as opposed to fraud has previously been criticised by the Sentencing Guidelines Council, which highlighted the different motivation for the two crimes. A member of the council pointed out that "the intention of the offender in such circumstances may be akin to that for offences of dishonesty".

There has been a push to change the law so that selling fake drugs comes under the umbrella of fraud and carries a maximum sentence of ten years, as opposed to the maximum term of life imprisonment for selling class As. However, the suggestion has been heavily criticised, with anti-drug group Europe Against Drugs claiming that passing other substances off as controlled drugs is essentially the same crime as drug dealing, and should be treated as such.

It's notable that not all drug-related arrests for possessing non-illegal substances involve fraudulent activity. Baumanis pointed out that there are circumstances in which criminals can be charged with possession of substances that are commonly used to adulterate controlled drugs if there's proof of intent to cut drugs with them. "If there's further evidence to suggest that a cutting agent is being used in connection with the supply of drugs, someone could be charged with being concerned in the supply of drugs," she explained. "They could also potentially be said to be involved in conspiracy to supply controlled drugs."

There have been a number of high-profile incidents in which offenders have been jailed for the possession of legally available cutting agents. In 2012, Anthony Woodford and David Lewison were convicted of assisting the supply of Class A drugs after being caught transporting large quantities of caffeine and Paracetamol. Up until this point, no one had been successfully sentenced for owning these substances with the intent to facilitate their use in cutting heroin. A year later, Scottish dealer Hugh Young was given a three-and-a-half year sentence after police uncovered 26 kilos of Benzocaine in his house, the first time anyone in the country had been jailed for possessing this substance.

Possessing or selling legal pharmaceutical products can result in just as much jail time as being an actual drug dealer if there's evidence they're being used for illegal purposes. However, in the case of Rashan, there's no proof that he was trying to sell the caffeine or Paracetamol, or use them to cut drugs. His motivation for swallowing them remains a mystery, but his decision to do so highlights a strange and changing area of the law.

@nickchesterv