Can a First-Time Drug Possession Charge Be Avoided? Cautions, Resolutions and Diversion

Does First-Time Drug Possession Always Lead to a Charge?

Possessing a controlled drug is a criminal offence that can carry a prison sentence. However, police have discretion when deciding whether prosecution or an out-of-court disposal is appropriate. Being found with drugs does not therefore mean you will automatically be charged.

There is no fixed quantity at which police must charge rather than offer a pre-court disposal for drug possession.

The decision depends on several factors, including the drug’s class, the amount found, whether it appears intended for personal use and the person’s previous history.

Class A drug possession is treated more seriously than Class B or Class C possession at every stage, including decisions about pre-court disposals.

This article focuses on the stage before any drug charge is brought. If a charge has already been made, or court proceedings have begun, a solicitor can explain what options remain at that point.

Cautions, Community Resolutions and Diversion Explained

Several alternatives to prosecution may be considered in a first-time drug possession case. These include simple cautions, conditional cautions and community resolutions. Drug diversion schemes also operate in some areas.

Each option works differently and may have consequences for your criminal record or future disclosure checks.

Simple caution

A simple caution is a statutory out-of-court disposal intended for lower-level offences, typically involving first-time drug offending. It is available to adults aged 18 or over only.

Before a simple caution can be offered, there must be sufficient evidence to charge, the person must admit guilt, and they must agree to accept it.

No conditions are attached to a simple caution, which distinguishes it from a conditional caution. It is recorded on the criminal record and can appear in certain Disclosure and Barring Service (DBS) checks. 

A person retains the right to decline a simple caution, even after admitting guilt. Declining may lead to prosecution. You can refuse a simple caution, even after admitting the offence, but refusal may result in prosecution.

Some serious drug offences involving supply, production or importation are subject to stricter rules on cautions. Simple possession is treated differently from those offences.

A further caution for similar offending may also be less likely to be offered.

Conditional caution

A conditional caution is also a statutory out-of-court disposal for adults aged 18 or over facing a drug possession matter. Like a simple caution, it requires sufficient evidence to charge, an admission of guilt and the person’s agreement.

The key difference is that conditions are attached.

These conditions are intended to address the offending behaviour or make amends for its consequences. For example, someone found in possession of drugs may be required to attend a drug awareness course or treatment programme.

Additional restrictions may sometimes be imposed alongside rehabilitative or reparative conditions. Failing to comply with a conditional caution can lead to prosecution for the original offence.

A conditional caution is also recorded and may have implications for future criminal record checks. Repeated use of conditional cautions is restricted, and a second caution for similar offending would normally require exceptional circumstances.

Community resolution

A community resolution is a non-statutory, informal disposal used for lower-level drug offending. It does not require a formal admission of guilt in the same way as a statutory caution.

It typically involves an agreement between the person and the police, and sometimes the affected party.

Community resolutions are not consequence-free. Although they are not the same as a formal caution and do not carry identical legal weight, they may appear in certain enhanced DBS checks even though they are not convictions or cautions.

The way they are recorded and used can depend on the circumstances and applicable police guidance. Availability also varies between police forces.

Drug diversion schemes

Drug diversion refers to local schemes that steer people found with small quantities of drugs, usually for personal use, away from the criminal justice system entirely or toward treatment and support. These programmes are not available uniformly across England and Wales. 

Some police forces operate schemes in partnership with local authorities or health services. For example, someone found with a small amount of a controlled drug may be offered a drug awareness session instead of being charged.

The person may need to attend an educational programme or complete a brief intervention.

Successfully completing the programme may result in no further police action, depending on the scheme’s rules. However, participation does not guarantee that the matter will be closed without charge.

The type and quantity of drugs, previous offending and local eligibility criteria can all affect whether diversion is offered.

What Can Affect Eligibility?

No single factor determines which pre-court disposal, if any, will be offered for a drug possession matter. Police consider the circumstances of each case, and the outcome can differ even where the circumstances appear similar on the surface.

• The class of drug matters. Class A drug possession is treated more seriously than Class B or Class C possession at every decision point, including the choice between charging and a pre-court disposal. A person found with a Class A drug is less likely to be offered diversion or a community resolution than someone found with a Class C drug, all else being equal.
• Quantity is also relevant. Small amounts of a drug consistent with personal use are more likely to lead to a pre-court disposal. Larger quantities may prompt police to consider whether the drugs were intended for supply, which is a separate and more serious offence. There is no single quantity that automatically determines the outcome. 
• Previous history plays a clear role. A prior caution or conviction for a drug offence makes it less likely that a further out-of-court disposal will be offered. First-time status does not guarantee a caution or diversion.

The circumstances of the stop can influence the assessment. Where the person was found, who they were with and what else was present can all be relevant to the officer’s decision. A person’s attitude and cooperation during the encounter may also be taken into account.

Local policy and scheme availability matter too. Drug diversion schemes are locally commissioned, and the type and number of pre-court disposals used vary between forces across England and Wales.

Finally, access to suitable treatment or education services can affect whether a particular outcome is offered.

How Age and Local Police Policies May Affect Your Options

The rules for adults aged 18 or over differ from those applying to children and young people. Simple cautions and conditional cautions are adult disposals, while those under 18 are subject to a separate youth justice framework.

This includes youth cautions and youth conditional cautions, which have their own requirements and consequences. The youth system takes account of a child’s age, development and circumstances when deciding how to respond to offending.

For example, a 16-year-old found with drugs may be considered for a youth caution or another suitable intervention rather than an adult caution.

Anyone under 18 facing a drug possession allegation should obtain advice from a solicitor familiar with youth criminal proceedings.

Where the offence occurred can also affect the options available.

Drug diversion schemes are locally operated and are not offered by every police force.

Research by the Centre for Justice Innovation has highlighted considerable differences in the use of pre-court disposals across England and Wales. A scheme available in one city may not exist in a neighbouring area.

The realistic options therefore depend on both the circumstances of the case and local police arrangements.

Possible Effects on Criminal Records and DBS Checks

Accepting a pre-court disposal for drug possession does not mean there is no record of what happened. The consequences differ depending on which disposal is used.

A simple caution is formally recorded and may be disclosed in certain criminal record checks, subject to the relevant filtering rules. 

Community resolutions are handled differently. They are not convictions or formal cautions, but they may still appear in enhanced DBS checks in certain circumstances. 

Drug diversion outcomes vary by scheme. Some schemes record no information beyond an administrative note. Others may generate a record that could appear in specific types of checks.

You should understand what will be recorded and whether it could be disclosed before agreeing to participate. This may be particularly important for people working in regulated professions or applying for jobs involving children or vulnerable adults.

A solicitor can explain how a proposed outcome may affect employment, professional registration or future criminal record checks.

Getting Advice Before Accepting an Outcome

The decision to accept a caution, a community resolution or a drug diversion scheme is not a trivial one. It should not be made under pressure or without understanding the full consequences.

Both simple cautions and conditional cautions require an admission of guilt in a drug possession matter. Making that admission is not the same as being found guilty after a trial, but it is a formal acknowledgement of responsibility that forms part of the disposal. 

Once accepted, a caution is not straightforward to reverse. You have the right to decline a caution, but doing so may result in prosecution for the original drug offence.

A solicitor can review the evidence held by police before you decide.

For example, if there are questions about whether the drugs belonged to you or how they were discovered, those issues may affect the strength of the allegation.

Conditional cautions also carry obligations that must be completed. Breaching the conditions attached to a conditional caution can lead to prosecution for the original drug offence. 

A solicitor can explain what the conditions require, how long they last and what happens if they are not met.

Drug diversion and community resolution schemes may appear informal, but the terms of participation and any record-keeping consequences deserve scrutiny. 

A solicitor can help you understand exactly what is being agreed and what it may mean for your record.

Acting before making any admission or accepting any outcome puts you in the best position to make an informed choice about your drug possession matter.

Speak to a Solicitor

If you or someone you know has been stopped in connection with drug possession, obtaining legal advice can help you understand whether an alternative to prosecution may be available.

Our drug possession solicitors can review the circumstances of the allegation, assess the available evidence and explain the possible outcomes before a charge is brought.

We can also advise on cautions, community resolutions and diversion schemes, including their potential effect on criminal records and future DBS checks.

Speak to our drugs and conspiracy team for advice about your position and next steps.