§ Mr. David Steelasked the Solicitor-General for Scotland if he is satisfied that recent judgments by the High Court of Justiciary in Scotland and by the Court of Appeal in England are compatible with the uniform application of the Misuse of Drugs Act 1971.
§ The Solicitor-General for ScotlandThe recent decisions of the High Court of Justiciary in Keane v. Gallacher and Miln v. McLeod expressly disapproved of the test of "usable quantity" which appeared in the English case of R. v. Carver. The decisions were based on the fact that section 5 of the Misuse of Drugs Act 1971, under which all these cases were prosecuted, contains no reference to such a test and the concept of a "usable quantity" where small quantities of controlled drugs were concerned necessitated an unjustified extension to the words of section 5.
The High Court of Justiciary took the view that the proper test to be applied was not whether a "usable quantity" existed, but whether the substance identified as a controlled drug was in the possession of accused. In my view, this is the correct test to be applied and there is no anomaly in the law, only in the application of it at present. It may be that on some future occasion the decision in R. v. Carver will be reconsidered in the light of the argument that prevailed in Keane v. Gallacher and Miln v. McLeod.