Cross-party committee says prime minister should set up royal commission on Britain’s failing drug laws
Full PDF report available at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmhaff/184/184.pdf
Over at The Poison Garden is a preliminary fisking of Peter Hitchens’s upcoming drugs policy book and its promotion. That led me to track down a fascinating document of Cabinet Conclusions. The date is 26th February 1970 and the topic is “the forthcoming Misuse of Drugs Bill”. The Home Secretary is James Callaghan, and this is a few months before Wilson loses the election to the Tories (who - very unusually - see that the previous government’s bill becomes law). In another document (the memorandum) Callaghan states that his own view is that the three-classifications idea should be ignored, and that possession of any controlled drug should have a maximum sentence of 7 years.
Here’s the drugs discussion in its entirety, with emphasis added by me (note how easily managing public opinion is put ahead of rationality and considered expert judgement):
“The Cabinet had before them a memorandum by the Home Secretary on the Misuse of Drugs Bill (C (70) 34).
The Home Secretary said that the Home Affairs Committee had recently considered the range of penalties to be provided in the forthcoming Misuse of Drugs Bill. Existing legislation on this subject distinguished in principle between the offences of simple possession of controlled drugs and trafficking in them. But, under the Dangerous Drugs Act, 1965, which dealt with heroin, cocaine, morphine and cannabis, the two offences had been treated on the same basis and the same penalty of ten years’ imprisonment applied to each. Under the Drugs (Prevention of Misuse) Act, 1964, which dealt with amphetamines, LSD and other hallucinogens, possession was punishable by two years’ imprisonment; and there was no separate offence of trafficking. The Committee had agreed that the new Bill should continue to distinguish between the offences of possession and trafficking; but they had also approved a division of drugs into three categories, each of which would attract a separate and appropriate penalty. But if—as was clearly right—the penalties for trafficking should be increased (e.g. in the case of the most dangerous drugs, from the existing limit of ten years’ imprisonment to a new limit of 14 years), it followed that the penalties for simple possession of the less serious drugs should be reduced; and the Committee had recommended that on this basis the penalty for possession of cannabis might be curtailed from ten years to three years. Further reflection, however, had suggested that public opinion might well regard a change of this kind as indicating too lenient an attitude on the part of the Government towards the potentially dangerous practice of drug-taking; and the Cabinet would wish to consider whether the political damage which the Government might suffer if this impression gained ground was sufficiently serious to justify a modification of the terms of the Bill before it was introduced.
If so, one of two courses could be adopted. The first would preserve the three categories of controlled drugs but would increase the penalties for simple possession of drugs in the two most serious categories from three years’ imprisonment to five years in the case of cannabis and from five years to seven years in the case of heroin, cocaine, etc. The second approach, which on the whole he advised, would be to abandon the distinction between categories of drugs entirely and to provide single maximum penalties for possession and trafficking respectively. The former might be either ten years or seven years’ imprisonment; the latter would be 14 years in all cases.
In discussion, there was general agreement that it would be right to maintain the distinction between the offences of possession and trafficking and to establish a more flexible and discriminating classification of the various categories of drugs. But the proposed reduction of the penalty for simple possession of cannabis from ten years’ imprisonment to three years would be liable to be severely criticised by public opinion, especially by parents and teachers. The impact of this apparent concession to the permissive tendencies in society would not be offset by the increase in the penalty for possession in the case of other drugs (e.g. LSD); and the Government might be at considerable political risk as a result. It would be very unwise to underestimate the degree of public concern on this subject and the ease with which the Governments intentions might be misinterpreted.
On the other hand, the proposals as approved by the Home Affairs Committee were the result of very careful consideration and reflected the considered judgment of expert opinion. Of the two alternative courses which the Home Secretary had suggested the second would entail a maximum penalty of seven years’ imprisonment for simple possession of cannabis; and a sentence of such severity was wholly unrealistic in relation to the offence as committed by, for example, a schoolchild. Moreover, the penalty actually imposed would lie at the discretion of the court; and, since it was most unlikely that the court would in fact deal so harshly with an offence of this kind, the law itself would be liable to fall into disuse and disrepute. The political risks of proceeding with the proposals as approved by the Home Affairs Committee could be exaggerated; and in any event it would be wrong, in a matter of this kind, to subordinate the requirements of humanity and equity to political considerations.
The Prime Minister, summing up the discussion, said that it appeared that the Cabinet were in favour, by a small majority, of proceeding with the proposals recommended by the Home Affairs Committee. But it might help to allay public disquiet if the proposed penalties for possession of controlled drugs were increased to some extent—e.g. to seven years (instead of five years) for the most serious drugs and to five years (instead of three years) for drugs in the second category, including cannabis. The Cabinet agreed that the Bill should go forward on this basis.
Invited the Home Secretary to arrange for the early introduction of the Misuse of Drugs Bill on the basis indicated by the Prime Minister in his summing up of their discussion.”
PS If anyone has or can find any of the relevant Home Affairs Committee documents, please do let me know!
Following on from the work of David Nutt and others - originally for the government’s own advisory panel - is another paper trying to compare the harms of different drugs. As with previous papers, and available at the British Medical Journal, this one’s not good news for our current classification system or the distinction between legal and illegal drugs.
One of the strengths of this study is the large number of experts involved. Two hundred and ninety-two addiction multidisciplinary experts across Scotland were involved making it the largest national panel to be involved in this type of study. [Addiction community psychiatric nurses were the largest group, making up 46% of the experts]
The main result is that heroin, crack cocaine, crystal meth, alcohol and cocaine were in the top five places for all  categories of harm, with LSD, ecstasy, methylphenidate, magic mushrooms and cannabis in the bottom five places for all categories of harm. The hierarchy of harm when judged by the experts did not correlate with the hierarchy used currently by the Misuse of Drugs Act.
This study demonstrates, similar to both of Nutt’s studies, that the legality of a substance does not reflect its potential for harm.
The burgeoning evidence of the harm caused by tobacco and alcohol would also suggest that from a scientific perspective these drugs are currently misclassified and that a new method for ranking drug harm, which could guide policies and public health strategies, is required, with many in the scientific and medical community feeling that this should be separated from the criminal justice system and associated penalties.
Any new system would also have to address the issue of personal choice and responsibility in using substances and examine the context in which they are being used. Increasing public awareness of the potential for harm of all the drugs examined whether legal or illegal and finding ways of reducing the demand for psychoactive substances should be the focus rather than imposing harsh penalties for their use.
These methods of comparing harms aren’t perfect. One issue with this paper is that there’s no distinction between harms intrinsic to the drug and additional harm caused by prohibition. Whatever you think of legalisation, a regulated market certainly wouldn’t see heroin contaminated with anthrax, for example.
But these methods are certainly better than the politics and misinformed hysteria that have created the UK’s classification system.
Hopefully this and further improvements will help lead to a more sensible system, but it’s clear that there are also individual reclassifications that could help. The ACMD might next year recommend that Ketamine should be moved up to Class B. Based on this paper, that might be reasonable. But it may also be an opportunity to change - or at least discuss - other classifications, especially those of ecstasy and cannabis (in both cases Labour ignored ACMD advice), as well as LSD and magic mushrooms.
This is not entirely academic. Assuming some people listen to advice from the Home Office, information not based in fact promotes poor decisions and is a danger to people’s health. Think of the children…
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.