During the Conservative leadership campaign, a question on many people’s lips will have been ‘Why hasn’t the former Justice Secretary been arrested?’ This follows his admissions to using cocaine on several occasions earlier in his career.
So, could he face the legal consequences of this?
Cocaine is a Class A drug. This is the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971. Whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.
Is Michael Gove’s confession enough?
The Prosecution will usually have to prove that a substance is in fact a controlled drug. The most convenient way to do that is through a forensic report which analyses the substance.
In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.
A confession was relied on in R v Chatwood  1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion.
Whether Michael Gove’s opinion could be described as ‘informed’ would be the key question. This is likely to depend on how often he used the drug.
His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.
The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.
Has it been too long to charge Gove with a drugs offence?
There is no general ‘Statute of Limitations’ in England and Wales.
Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those. You can read more about the law here.
He could, theoretically, still be charged.
Will Michael Gove be prosecuted?
The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.
The Full Code Test has two stages which need to be met. These are the
- evidential stage, and the
- public interest stage.
In short, there needs to be enough evidence for a realistic chance of conviction. It must then be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.
The importance of his admissions
The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.
Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.
In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.
This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.
The likely penalty would be a small fine or community punishment at most. After all this time it may be that a discharge would be deemed appropriate.
As a result, although Gove could be prosecuted, it is unlikely that he will be in all of the circumstances. Reputationally and politically, this admission could exact a great cost, but it is unlikely to end up in court.
Contact a specialist criminal lawyer
This case illustrates the effect that a careless admission could have on a person’s character and career. Of course, such admissions will have a far more serious impact if made to the police.
As a result, you should always take our advice prior to any police interview, whether as a volunteer or under arrest.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. There are circumstances, for example, where admissions made might not be admissable in court proceedings.
We have offices across the East Midlands and will happily travel across the country to provide representation for all offences.
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