The common law did not consider possession a constituent element of the actus reus based on the idea that possession was not equated with the external manifestation of mens rea. However, with the development of the criminal law, with an ever-increasing volume of criminal offences on the statute books, the concept of possession as an element of the actus reus became intrinsically important in the construction of criminal liability. Although it is passive rather than active possession is an element of certain offences that prohibit the mere possession of objects or substances considered harmful to the public such as illegal drugs, child pornography, offensive weapons, unlicensed firearms, and theft offences.
The concept of possession holds a unique position in the criminal law and can also be a form of preventive justice. The imposition of criminal liability has been increasingly used for the purpose of preventing or reducing the risk of anticipated future harm typically criminalising prohibited conduct at an early stage. Criminal possession, especially of controlled drugs, has been a major source of controversy, as this mode of liability allows for arrests and convictions without necessarily proving the use or sale of a controlled substance. In order to mitigate the possibility that innocent persons might be prosecuted and convicted for possession offences it is essential that the prosecution’s evidence includes more than just a temporal and spatial nexus between the defendant and the prohibited item.
Possession offences are specifically designed for ease of enforcement thus reflecting an approach to criminal liability with an emphasis on crime control. These offences are, as a general rule, consistent with situational liability in that the prosecution do not have to establish the voluntarily taking possession of the prohibited object or substance. It is sufficient to establish the defendant was in possession. Whether or not possession offences are consistent with the voluntary act requirement, criminal liability is nonetheless imposed on the basis that the defendant voluntarily remained in possession.
Possession offences may potentially circumvent traditional notions of imputed liability through the doctrine of constructive possession, which accommodates vicarious liability (through dominion over a person) and spatial liability (through dominion over an area). These offences resist categorisation according to the traditional distinction between conduct and status offences. Moreover, they challenge the traditional distinction between voluntariness and mens rea in the construction of criminal liability.
A fuller version of this article is published in (2016) 26(4) Irish Criminal Law Journal, 108-117, which evaluates the intricacies of possession in the light of its various forms as an exception to the act requirement in the construction of criminal liability.
Dr Ger Coffey, Lecturer, Centre for Crime, Justice and Victim Studies, School of Law, UL.