Will Nick Green QC’s question on drugs possession be heard by government?
In his recent report to the profession, Bar Council chairman Nick Green QC attracted headlines by raising the question of whether personal possession of drugs should be decriminalised.
Drug-related crime, he said, costs the economy about £13bn a year. He pointed to a growing body of comparative evidence that suggests decriminalising personal use can have positive consequences – it frees up police resources, reduces crime and recidivism, and improves public health.
Among the body of evidence that informed his thinking is a report by libertarian thinktank the Cato Institute on the situation in Portugal.
In 2001, Portugal became the first European country to officially abolish all criminal penalties for the personal possession of drugs, including cocaine, heroine and LSD.
The country, which had one of the highest levels of hard drug use in the continent, replaced prison sentences with therapy.
At the time opponents feared it would lead to drug tourism, and increase the country’s drug problem. But the Cato Institute found that, five years after the policy change, the illegal use of drugs by teenagers had declined, and rates of HIV infections caused by people sharing dirty needles fell, while the number of people seeking therapy to get off drugs more than doubled.
Could the government learn a thing or two from this? Faced with having to make enormous budget cuts the Ministry of Justice is keen to find ways to save money.
The scale on which cuts needs to be made demands more than merely tinkering with the system. It requires bold and radical changes that will make a real and significant difference.
Reducing the cost to the criminal justice system (of police time, court time, prison and the cost of reoffending) spent on dealing with people who are addicted to drugs could make a huge difference. And getting people off drugs would benefit the individuals concerned as well as the rest of society.
Echoing the speech made last month by justice secretary Ken Clarke, justice minister Crispin Blunt reiterated the government’s desire for a more constructive approach to rehabilitation and sentencing – its so-called ‘rehabilitation revolution’.
Speaking at crime reduction charity NACRO this week, Blunt commended the approach taken by Winston Churchill when he was home secretary in 1910, to transform the attitude to and treatment of offenders.
Blunt said the current system is failing everyone – those who work in it, offenders managed by it, victims and the public.
The scale of that current failure, he said, is illustrated by the prison population – 85,000 offenders in prison now, and the prediction of 96,000 places required by 2014.
Describing the situation as a ‘national embarrassment’ Blunt again commended the opinion of Churchill, who said the first principle of prison reform ‘should be to prevent as many people getting there at all’.
‘We need a fundamental change to the focus of our system towards rehabilitation,’ said Blunt.
Decriminalising personal possession of drugs could be an effective practical step to turn that rhetoric into reality. But will the government be prepared to make the fundamental change of dealing with drug addiction as a health care rather than a criminal justice issue?
Comments
It's aproblem of administration.
The comments by Nick Green QC were very welcome from my point of view; I have spent the last four years trying to argue legal points to help people who have had their lives turned upside down by prosecutions for drug offences. I instinctively knew something was wrong when someone can be prosecuted for growing four cannabis plants despite the fact that a hospital consultant had prescribed cannabis sativa and yet the PCT refused to fund it.
In my view the problem lays not with the Misuse of Drugs Act 1971 (“the Act”) itself, but with the administration of it by government. Sadly hardly anyone in government or the legal profession has actually analysed the law in any detail and blindly accept that whatever government dictates is valid. The Act is actually a very good and drug (user) neutral law that seeks to evolve with evidence to protect society – it gives the keys to this process to the executive with the ACMD having statutory duties. Here a few examples of errors of law in the administration of the Act:
1. Parliament has not criminalized the use of any drug in the UK other than opium – in his original statement Nick Green referred to the decriminalisation of personal use – this should have referred to possession. So, using drugs is purposefully legal to allow control of harm by misuse to be achieved through regulation.
2. The so-called ‘war on drugs’ is a misnomer – it is a war on some people who use some drugs, of course the law can only seek to regulate human action, not drug action. In fact many common expressions used by government are incorrect, eg the law does not define an ‘illegal drug’ , ‘illicit drug ‘or ‘legal drug’ – these expressions flip the subject and object and present prohibition as the normal default position of the Act. The law seeks to ameliorate the social harm caused by ANY drug by declaring it to be a controlled drug and then regulating property rights in it to stem misuse of that drug – it is purely a policy decision to extinguish all property rights in controlled drugs.
3. Alcohol and tobacco are not outside of the Act and indeed their exemption by government is surely ultra vires given that they cause 60 times more harm than all controlled drugs put together.
4. The government administer the law for electoral advantage by excluding the majority of harmful dangerous drug users from the operation of the law and affording them full consumer protections whilst scape-goating all users of controlled drugs. Thus the reasonable differentiation between peaceful use of alcohol and misuse is denied to controlled drug users despite the Home Affairs C’tee finding that the vast majority of controlled drug users (4 million in UK) did not cause appreciable harm to themselves or others).
5. The ACMD must do what Professor Nutt sought to do and advise on policy and alteration of the law.
6. The law is not bound by any international drug treaty or convention as none have been incorporated into UK law.
Actually the financial reasons are one of the least important reasons to demand a fair administration of policy – the paradox of consequences of current policy are devastating. What basis is there under the Act for persecuting some people who do no harm to anyone? Incursions in to liberty ought to be proportionate and minimal to achieve their objects – at the moment we have an entirely arbitrary classification system where there is no correlation between sentencing and drug harms. This is in my view Wednesbury unreasonable administration and the exemption of alcohol and tobacco from proportionate control under the Act is outside the four corners of the Act.
Prohibition is a policy choice not required by MDAct 1971
Mr Bickler appears correct. I've spent the last few hours reading the MDAct 1971. Except for mentions of cannabis and opium, ss6, 8 and 9, the MDAct is neutral on its face. Section 1 implies that all drugs are capable of control under the Act If their misuse is 'having harmful effects sufficient to constitute a social problem'. This would include alcohol and tobacco, yet the SSHD excludes them apparently on 'historical and cultural' grounds, Cm 6941. But this is not a rational reason not to apply neutral principles of law generally. It would appear that the SSHD believes the Act mandates 'prohibition' but this is only a policy choice for the SSHD under s7(4).
More, the SSHD appears to think that the Act classifies 'illegal drugs' but 'illegal drugs', or their counterparts 'legal drugs', do not appear to exist in fact or law. The Act only controls activities re 'controlled drugs', thus the Act regulates human behaviour and cannot make any drug illegal, seems obvious but often missed. And whilst the Act does not effectively control drugs, they won't behave, it appears to provide a very smart mechanism by which a properly regulated drug commerce can manage both harms and benefits, (and save money for the CJS).
More, the SSHD (and most who write on the Act) appears unaware of the flexible possibility of ss7(1)-(2), 22(a)(i) and 31(1)(a) when read together. I certainly was until this last few hours. If by s31(1)(a) re 'General provisions as to regulations' the Secretary of State 'may make different provisions in relation to different controlled drugs, different classes of persons, different provisions of this Act or other different cases or circumstances' and by s7(1) re 'Authorisation of activities otherwise unlawful under foregoing provisions' the Secretary of State, may make 'provision as (s)he thinks fit for the purpose of making it lawful for persons to do things under which any of the following provisions of this Act, that is to say sections 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do', then it would be possible under the Act to produce, commerce and possess clean unadulterated controlled drugs for peaceful uses if the Secretary of State, the ACMD and the Parliament thought that would reduce or eliminate the 'harmful effects sufficient to constitute a social problem', s1(2), from controlled drug use more effectively than a blanket prohibition of some but not all 'dangerous or otherwise harmful drugs, (preamble).
So why are the liberties re alcohol and tobacco not afforded to users of controlled drugs? Or why are alcohol and tobacco not included in the Act and blanket prohibition applied equally to those concerned with them? The SSHD has answered, it 'would be unacceptable to the vast majority', Cm 6941. If that's not discrimination on spurious grounds, I do not know what is.
In its response to the 2006
In its response to the 2006 ACMD report Pathways to Problems, the Home Office admitted that it considers: "alcohol and tobacco to be implicit in the ACMD’s terms of reference, as these are substances that can be misused."
Now that the jurisdictional facts prompting alcohol and tobacco control under the Misuse of Drugs Act have been admitted by government, will the state meet its legal requirements to apply proportionate controls under the Act? Or will the government continue to flout the rule of law by exempting alcohol and tobacco users from its operation? Or will the government continue the absurd status quo by persisting in its fanatical, near-religious belief that the Act mandates prohibition when it does nothing of the sort?