Legal Eye
Article Type: Legal Eye From: Drugs and Alcohol Today, Volume 11, Issue 4
Niamh Eastwood Head of Legal Services, Release.
Government Advisors calls for a different approach to possession offences
The media has recently reported that the Advisory Council on the Misuse of Drugs (ACMD) has called for possession of drugs to be decriminalised. This is technically incorrect but only in that this term was not used. The ACMD in both its’ Response to the Government’s Drug Strategy Consultation (Advisory Council on the Misuse of Drugs, 2010) and its’ Response to the Sentencing Councils’ Consultation on Drug Offences Guidelines’ (Advisory Council on the Misuse of Drugs, 2011b) calls for diversion away from the criminal justice system for possession offences. In both responses, the ACMD state:
The ACMD […] believe that there is an opportunity to be more creative in dealing with those who have committed an offence by possession of drugs. For people found to be in possession of drugs (any) for personal use (and involved in no other criminal offences), they should not be processed through the criminal justice system but instead be diverted into drug education/awareness courses (as can happen now with speeding motor car offenders) with concomitant assessment for treatment needs (if the person consents), or possibly other, more creative civil punishments (e.g. loss of driving licence or passport) […]. Such approaches may be more effective in reducing repeat offending and reducing costs to the criminal justice system (Advisory Council on the Misuse of Drugs,2011b).
Interestingly, and despite the fact that this information has been in the public domain since November 2010, the media only picked up on the recommendation when the response to the Sentencing Consultation was published in October 2011. Further to this, there was not the usual media frenzy that is associated with the ACMD making, what might appear to some, a controversial statement. Think back to the recommendation that cannabis remained a Class C drug and how the media pitted the ACMD against the government.
So how would diversion away from the criminal justice system work? There are a number of models that could be adopted but all would effectively be de jure (in law) or de facto (in practice) forms of decriminalisation. One method could be to extend the current cannabis warning scheme to all drugs, this would mean that people caught in possession of drugs would receive a warning for a first offence. The scheme currently escalates the response for those caught in possession subsequently, until on third occasion it is likely to be dealt with formally resulting in a criminal record. The current scheme does not allow for diversion, however, this would not prevent the police from developing such an approach. The cannabis warning scheme came into effect in 2004 after cannabis was downgraded to a Class C drug, and it has been retained despite reclassification to a Class B substance. The scheme was established by the Association of Chief Police Officers (ACPO), with the agreement of the government at the time, and did not require any legislation. Such a scheme could be developed to include diversion to education or treatment without Parliament’s agreement. Any attempt by ACPO to develop such an approach without the support of ministers is fraught with political difficulties.
Another option would be to amend the Misuse of Drugs Act 1971 to make possession of a controlled drug an unlawful offence but not one that was criminal. This would be achieved by “excepting” s5 (Advisory Council on the Misuse of Drugs, 2011b) of the Act and would simply require secondary legislation. However, this would not create a formal system of diversion and government could respond by working with the police to create an informal system, meaning one not defined in law. Alternatively, a system based on the Portuguese model could be enacted by primary legislation.
There are other mechanisms, which could be engaged to achieve diversion away from the criminal justice system for possession offences, and the above is just an example of some of the discussions that would take place.
In reality, it would seem that we are a long way from any of real political engagement on the issue of non-criminal sanctions for drug possession. This is despite increasing calls supporting this approach from international bodies such as UNAIDS and the Global Fund, as well as leading figures within the British establishment.
The Home Office, in its response to the media reports on the ACMD calls for diversion, trotted out the exact same response it used on 2 June 2011 when Release launched its new campaign, “Drugs – It’s Time For Better Drug Laws” and the Global Commission on Drug Policy launched its’report:
We have no intention of liberalising our drugs laws. Drugs are illegal because they are harmful – they destroy lives and cause untold misery to families and communities […]. Those caught in the cycle of dependency must be supported to live drug-free lives, but giving people a green light to possess drugs through decriminalisation is clearly not the answer.
Maybe this is why there was so little media attention – the call for diversion or decriminalisation has become commonplace and the Government’s stock response is just not news anymore.
“Ivory Wave” (Desoxypipradrol 2-DPMP) to be classified as a Class B drug
In September 2011, the ACMD recommended that the Government control desoxypipradrol as a Class B drug (Advisory Council on the Misuse Drugs, 2011a). Desoxypipradrol is thought to be the active ingredient in the new psychoactive substance, or legal high, “Ivory Wave”. Other related compounds are also to be controlled under the Misuse of Drugs Act 1971.
The decision to classify the drug as a Class B substance was based on it being commensurate with other Class B drugs. The substance was also categorized as a Schedule 1 drug, meaning that it has no medicinal value.
The Home Office is yet to advise when the Secretary of State will present the statutory instrument to Parliament that will effectively make the drug illegal.
Police Reform and Social Responsibility Act receives Royal Assent
The Police Reform and Social Responsibility Act 2011 (“the Act”)received Royal Assent on the 15 September 2011. The provisions relating to the ACMD (section 152) and to the temporary class drug orders (Schedule 17) came into force on the 15 November 2011.
Section 152 of the Act has removed the requirement that membership of the ACMD includes representation from specific professions. Schedule 1 (Advisory Council on the Misuse of Drugs, 2011b) of the Misuse of Drugs Act 1971 has been omitted meaning that the Council can be operational even if certain professions are not represented. This provision was introduced in response to the resignations of members of the ACMD in regards to the decision to control mephedrone. Specifically, questions about the legality of the ACMD, on the grounds there was no quorum, arose in March 2010 when Dr Polly Taylor resigned in protest against the recommendation to classify mephedrone as a Class B drug. Dr Taylor held the position of vet on the Council. One of the professions required to be represented prior to the current change of law. It is expected that the Government will produce a protocol detailing guidance on the make up of the Council.
When the clause relating to the change in ACMD membership requirements was debated in the House of Commons, there was little objection. Dr Les Iversen, the current Chair of the ACMD, advised MPs that there was a need for flexibility in the membership of the Council.
The second provision of the 2011 Act is the introduction of temporary class drug orders (Schedule 17). This is a new power under the Misuse of Drugs Act 1971, which addresses the issue of legal highs. This power will allow the Secretary of State to place a temporary order on a substance “being, or likely to be misused” or is “having, or is capable of having, harmful effects”.
The drug would then be subject to a 12-month banning order; anyone caught supplying, producing, importing or exporting the drug would be guilty of a criminal offence. The maximum penalty available would be 14 years imprisonment and/or a fine. Possession of the drug subject to the order would not be an offence.
The House of Lords debate at Committee Stage was interesting with Baroness Meacher, Baroness Miller, and Lord Stevenson being particularly vocal. Their concerns were that bans would drive people to buy drugs from unscrupulous dealers, and there was a suggestion that medicines legislation would be more appropriate as this could restrict sale without criminalising users.
At the end of the 12-month period a decision would have to be taken either to control the drug as a Class A, B or C substance or not to control it. Interestingly, no regime has been proposed for those drugs that would not be classified at the end of the period – probably because this is considered an unlikely scenario.
