The Home Affairs Select Committee inquiry into drug policy is still in progress but the written submissions to it have now been released. There are many excellent submissions (and flawed but interesting ones such as the Home Office’s), but that of the Advisory Council on the Misuse of Drugs deserves special attention.
Its final point relates to “Whether detailed consideration ought to be given to alternative ways of tackling the drugs dilemma, as recommended by the Select Committee in 2002 (The Government’s Drugs Policy: Is It Working?, HC 318, 2001- 02) and the Justice Committee’s 2010 Report on justice reinvestment (Cutting crime: the case for justice reinvestment, HC 94, 2009–10).”
Criminal Justice interventions which involve young adult drug users gaining a criminal record or a custodial sentence may not be the best use of public resources, given the ‘life limiting effect’ or negative impact this may have on a young adults future employment and life prospects.
The majority of drug users are late teenagers or young adults, living in urban areas with men being twice as likely to use as women. The 2010/11 British crime survey showed that levels of ANY drug use are higher amongst the 16 to 19 yr olds (23%), with levels of Class A drug use highest amongst 20-24yr olds (8.2%). Men are also twice as likely to use drugs as women.
In the British Crime Survey 2011 respondents were asked where they acquired their drugs, over half (53%) of drug users said the obtained them from a friend or member of their family, over a fifth (21.4%) from someone else they knew and 21.8% said they got them from a dealer.
Young adults (particularly young urban and Black Minority and Ethnic (BME) men) are disproportionately impacted upon by criminal justice drug interventions. Their lives may be negatively impacted by being caught in the criminal justice system for simple possession offences, drug dealing amongst ‘friends’ etc causing a disproportionate, negative impact on their lives.
In responding to the Government’s drug strategy consultation in 2010 the ACMD considered the question, “Do you think the criminal justice system should do anything differently when dealing with drug misusing offenders?” The ACMD believes that there are further opportunities to be more creative in dealing with those who have committed an offence by possession of drugs for personal use (in cases where there were no additional criminal offences). The ACMD considers that such approaches might be more effective in reducing drug-related harms to individuals and society, reduce repeat offending and reduce the costs to the criminal justice system.
The ACMD propose potential diversion into drug education/awareness courses (similar to those for speeding drivers) or possibly other, more creative civil punishments e.g. temporary loss of a driving licence.
The ACMD recognise that such a diversion proposal would require extensive consultation with education and treatment agencies and support from the police, probation and criminal justice stakeholders before this could be formalised but there is evidence of considerable support for such diversion measures already e.g. ACPO.
The ACMDs proposal is in the context of an awareness that a proportion of offenders - primarily for possession of cannabis - are already dealt with by way of a Police caution issued on the basis of the offender’s admission of guilt of a criminal offence. The ACMD consider that some form of drug education / awareness / treatment might better reduce drug-related harms than increased penetration into the criminal justice system. The ACMD state that if there were other trigger offences (e.g. theft, burglary etc.) then the appropriate criminal justice procedures and sentences would normally apply, which could include community sentences and imprisonment. In June 2011, the ACMD responded to the Sentencing Guideline Council’s Consultation on Drug Offences Guidelines in similar vein.
The ACMD is aware that, subsequent to its submission, it has been incorrectly suggested by some that this was a proposal for decriminalisation. The ACMD was, and still is, clear that its suggestions relate to the discretionary diversion of certain offenders from further penetration into the Criminal Justice System, diverting them into an alternative community-based intervention that may be more effective and more cost effective. This is not decriminalisation because the ACMD consider that the possession of drugs is a criminal offence and should remain a criminal offence.
I hope the committee will respond to the ACMD’s suggestions. Even though the council might not consider this to be ‘decriminalisation’, the differences are smaller than one might think.
‘Decriminalisation’ is a word that’s caused considerable confusion. Not only can it be used to refer to legalisation of supply, but even when just discussing possession it can refer to a large range of policies.
Portugal has de jure decriminalisation of possession. But it’s still an offence, and has to be under international law (for now). Users are sent through what could almost be described as a parallel criminal justice system, with the power to fine users, but which usually uses its discretion and does not (cf what the ACMD recommend). I’ve spoken to lawyers who are in fact concerned about a non-judicial body handing out sanctions, and who point out that the UK has no framework for administrative offences.
Then there’s de facto decriminalisation. In the Netherlands, for example, cannabis possession (and purchase from coffee shops) is still illegal, but is “tolerated”. Despite what the ACMD say above, most people would consider this decriminalisation.
Similarly, the ‘tolerance’ can exist at the level of the judicial system rather than the police. One option would be to simply have a presumption that the Crown Prosecution won’t prosecute for simple possession, on the basis that it’s not in the public interest.
A final example is the Mandatory Cautioning Scheme recommended by the Law Commission in New Zealand (which has a similar framework to the UK). If I recall correctly, it suggested that those caught in possession of an illicit drug would be given a caution and educational/treatment information. The number of cautions one could receive before being prosecuted would depend on the class of drug - e.g. 3 cautions for Class C - thereby insuring that resources are directed mostly at users of the most dangerous drugs (if the classification system is sensical). This, incidentally, is not too different from the UK’s current warning system for cannabis. One of the reasons given for the NZ proposal was that it took out the element of chance (or discrimination) that is the flipside of police/judicial discretion. Again, this system wouldn’t technically be ‘decriminalisation’ but for most users would actually involve fewer repercussions than Portugal’s de jure decriminalisation.
As with legal regulation of drugs, there are a huge range of policy options within prohibition. A consensus is emerging that more severe punishment of users at best achieves nothing, but trying to categorise part of this continuum of options as “decriminalisation” is not particularly easy or helpful.