Drugs and the Law - Chapter One: The Legislation in Context

Drugs and the Law

REPORT OF THE
INDEPENDENT INQUIRY INTO THE MISUSE OF DRUGS ACT 1971

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Chapter One: The Legislation in Context

Introduction

1 The main instrument for drugs control in the United Kingdom is the Misuse of Drugs Act 1971 (the MDA). This needs to be seen in the context of other Acts of Parliament and the United Nations conventions on drugs. We start with the United Nations conventions because the MDA is the means by which the United Kingdom seeks to meet its international obligations as a signatory to those conventions, although its scope extends beyond the conventions.

2 The United Nations conventions require the states that are party to them to meet certain broad obligations, including the creation of criminal offences. But the conventions leave considerable leeway as to how precisely those obligations are to be met in the domestic law of the country concerned. This is not widely understood and we therefore commissioned the Institute for the Study of Drug Dependence (ISDD) to undertake a programme of comparative legal research into the national drug laws of France, Germany, Italy, Spain, the Netherlands and Sweden. We believe that this study[1] is a very useful contribution to public understanding of the international context, and we draw on it throughout this report. It illustrates in particular how all countries party to the conventions broadly converge in their laws against trafficking in illicit drugs but take a variety of approaches to possession for personal use. All such variations can be interpreted as allowable within the provisions of the conventions, although there has been some debate as to whether certain countries are fully convention compliant.

3 Although often thought of as purely prohibitory, both the MDA and the conventions recognise that most if not all illicit drugs have or have had valuable and legitimate medical, scientific and industrial uses. As well as prohibiting the use of the drugs concerned outside these lawful fields, the conventions and the MDA (mainly through the regulations made under section 7) are concerned to ensure that their use within these areas continues to be possible. They are thus flexible regulatory instruments under which much remains permitted. They should not be regarded as solely repressive.

4 The relationship between our domestic law and international agreements is not a recent one. It goes back at least as far as 1920, when the Dangerous Drugs Act was passed in order to enable the United Kingdom to ratify the Hague Convention of 1912 (preceded by the Shanghai Commission of 1909). This set the pattern for United Kingdom legislation to emerge from international agreements, although it has always been possible for the United Kingdom, as for other countries, to take action in advance of or separately from international conventions. Normally, however, the international conventions have indicated the minimum that needs to be done, individual countries being left to do more if they wish. The general pattern can be seen in the summary of the main events in the history of drugs control in the United Kingdom, which we set out in Appendix 5.

The United Nations conventions

5 There are three United Nations conventions on international cooperation in the drugs field. They date from 1961 (with a protocol added in 1972), 1971 and 1988. The 1961 convention consolidated and replaced the earlier treaties and conventions that were relevant, which is why it is entitled the 'Single Convention on Narcotic Drugs 1961'.

6 The Single Convention does not in fact define the term 'narcotic' and some of the substances identified in the Schedules to the convention may not fit comfortably with the description. Its aim is continuous international cooperation and control in order to limit such drugs to medical and scientific purposes. There are also exceptions for industrial purposes; for example the convention does not prohibit the cultivation of the cannabis plant exclusively for industrial or horticultural purposes. The drugs are arranged in schedules which determine the level of control applied to a given drug. The controls include limitations on manufacture, production, cultivation, importation and possession as well as requirements of labelling, keeping records, prescribing and safe custody. Activities that are contrary to the convention are to be 'punishable offences when committed intentionally’ and punishment is to include imprisonment in serious cases. Although the convention does not specifically require that states create criminal offences, it is difficult to see how countries such as the United Kingdom could create punishable offences in any other way. Countries with different legal traditions, and especially those with differently developed forms of administrative law, may be in a different position.

7 The Convention on Psychotropic Drugs 1971 is, as its title implies, concerned with psychotropic drugs, but the term 'psychotropic' is not defined in the convention. The substances concerned, which include hallucinogens, stimulants and sedatives, are listed in four schedules which determine the restrictions to be applied. The aim of the 1971 convention, as of the Single Convention, is to limit the use of drugs to medical or scientific purposes. Schedule 1 lists substances whose use is to be prohibited 'except for scientific and very limited medical purposes by duly authorised persons, in medical or scientific establishments which are directly under the control of their Governments or specifically approved by them'[2]. The very restrictive wording of the convention when it comes to the drugs in this schedule prevents their being made available on prescription, and explains why the drugs listed, which include some cannabis-type substances such as cannabinol (except for dronabinol), are not in normal medical use in the United Kingdom. By contrast cannabis and cannabis resin are narcotics controlled by the Single Convention. As with the 1961 convention, actions contrary to the convention must be treated as punishable offences and be liable to adequate punishment including imprisonment.

8 Commentaries have been published by the United Nations interpreting various provisions of the conventions. These commentaries reveal that the references to possession, purchase and cultivation may not have been intended to cover possession, purchase or cultivation for personal use. This seems to have been regarded as a loophole which on most interpretations was closed by the 1988 convention.

9 The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (The Vienna Convention) supplements and strengthens the earlier conventions. It specifies that breaches of the conventions should be established as <i>criminal</i> offences under each state's domestic law. At the same time the activities that are to be designated as criminal offences are clarified and extended. Trafficking in particular is defined in great detail so as to include all possible forms of organisation, management and financing of illicit drugs activity. New controls are introduced over chemicals (usually referred to as precursors) which have legitimate uses but can also be used to manufacture illicit drugs. Parties are required to create new offences of money laundering as well as to adopt measures to strip traffickers of the proceeds of their trade.

10 The 1988 convention also requires that each party establishes as a criminal offence the possession, purchase, or cultivation of illicit drugs for personal consumption [3]. This closes the loophole mentioned above [4]. There is, however, a distinction between the penalties for trafficking and those for personal consumption offences. Trafficking offences must be liable to sanctions which take into account the grave nature of such offences. The sanctions should include imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation [5]. There is no similar requirement to have imprisonment, pecuniary sanctions and confiscation available as penalties for personal consumption offences [6].

11 The conventions leave precise implementation of many matters to individual states. For example, in the 1988 convention it is stated that nothing shall affect the principle that the offences concerned shall be defined, prosecuted and punished in conformity with the domestic law of a party. There are similar reservations in the earlier conventions. In the 1961 and 1971 conventions the obligation to create punishable offences is subject to a country's 'constitutional limitations'. In the 1988 convention this becomes 'subject to [a country's] constitutional principles and the basic concepts of its legal system'. But in the 1988 convention the saving clause applies only to the criminal offences of possession, purchase or cultivation for personal consumption. Where the possession, purchase or cultivation is for trafficking, and with respect to trafficking offences generally, the requirement to establish criminal offences is absolute and may not be evaded on grounds of being contrary to a country's constitutional principles or the basic concepts of its legal system. The effect is to allow far more room for manoeuvre for personal consumption offences than for trafficking offences.

12 These factors allow significant variation across states in such matters as the drafting of offences, the classification of drugs, maximum penalties and actual sentences. The references to constitutional limitations or principles are significant chiefly for those countries where the use or possession of illicit drugs is not a criminal offence because the constitution is interpreted as giving individuals the right to harm themselves. The reservation that prosecution is to be in conformity with domestic law provides parties to the conventions with a high degree of latitude not to prosecute offenders (or to divert offenders from the criminal justice system) when it is appropriate in the public interest to do so. This again most commonly happens in the case of use or possession for personal use. The conventions permits parties to adopt measures that may be more strict than those provided by the conventions if, in their opinion, such measures are desirable or necessary for the protection of public health and welfare.

13 All three conventions are concerned with prevention and treatment as well as with punishment. The 1961 convention requires the parties to 'give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved...'. It provides also that 'when abusers of drugs have committed.. .offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, after-care, rehabilitation and social reintegration...'. Much the same approach and wording appears in the 1971 convention.

14 This approach is refined in the 1988 convention. The scope for using measures of treatment, education, aftercare, rehabilitation or social integration as alternatives or in addition to punishment varies with the offence involved. For serious trafficking offences they may only be provided in addition to conviction or punishment [7]. For offences of personal consumption, on the other hand, they may be applied either as alternatives or in addition to conviction or punishment [8]. But there is a grey area: in appropriate trafficking cases of a minor nature the non-punitive responses may be used as an alternative to conviction or punishment [9]. This is therefore another area where states have some flexibility in deciding on the appropriate response to drugs offences.

Other countries' approaches

15 In order to give some idea of the room for manoeuvre permitted under the United Nations conventions, we give below some examples [10] of how the law in other European countries differs from our own. Our purpose is merely to illustrate the scope given by the conventions for variations of approach. As may be seen, some countries use administrative law rather than criminal law to respond to drug use or possession for use. It must, however, be noted that it does not follow that the intensity of administrative enforcement measures is any less strict or severe than measures enforced in the United Kingdom (even though enforcement in the United Kingdom is usually by means of the criminal justice system). For the purposes of the European Convention on Human Rights and the Human Rights Act 1998 a measure may be treated as being penal (and thus a criminal law measure) even if it is described as being administrative or civil in nature. If so it attracts the same requirements for procedural safeguards (due process, rights of appeal and so on).

16 Major trafficking. Other European countries distinguish in various ways between minor and major forms of trafficking. All the countries in the ISDD study provide for special penalties if the offence is committed by a manager or member of a group engaged in organised crime. Spain and Italy identify in their law aggravating factors that include being a person in authority, supplying to minors, using minors to commit a drugs offence, and introducing drugs into schools, prisons or social welfare centres.

17 Minor supply. In Italy it is not a criminal offence to share drugs without payment among a group of users. In Spain the setting up of a common fund by a number of addicts for the purpose of acquiring drugs for consumption among themselves has been declared not a matter for prosecution. Administrative sanctions may, however, apply (in Spain only if the sharing takes place in public). In the United Kingdom and other countries the person who passes drugs round within a group would be treated as a supplier even if he is a member of the group.

18 Cultivation of cannabis is an administrative not a criminal offence in Spain if the drug is intended for personal use. In Spanish law there is no difference of treatment as between cultivation and other acts intended to obtain drugs for one's own use.

19 Possession. In Spain possession for personal use is not a criminal offence but a serious administrative offence, although one that is unlikely to be punished unless committed in public. Italy also treats possession for personal use as an administrative rather than a criminal offence. Administrative penalties can be quite punitive, involving for example fines or loss of driving licence, gun licence or passport.

20 Use. Italy, the Netherlands and Germany do not prohibit drug use in the sense of personal consumption. Spain applies administrative sanctions when use is in public. In Sweden and France use is a criminal offence. In the United Kingdom it is an offence to use opium under section 9 of the Misuse of Drugs Act 1971. (MDA) but otherwise the relevant offence is possession, as in other countries which do not specifically make use an offence.

21 Discretion. In the Netherlands there is a formal written policy providing guidelines for the investigation of offences under the Opium Act, first issued in 1976 and most recently revised in 1996. Under these the normal practice is to take no action against possession of small quantities of any drug for personal use. This is in accordance with the expediency principle permitting minor cases not to be prosecuted in the public interest. The same principle is applied to the sale of small amounts of cannabis (5 grams and under) from coffee shops, though it is less clear whether it applies to the sale of stocks (up to 500 grams) to those coffee shops and their cultivation or importation. In Germany discretion varies between the extremes of non-intervention in some Lander in cases of possession for personal use, and rigorous enforcement in others.

The Misuse of Drugs Act 1971

22 The Misuse of Drugs Act 1971 replaced the Drugs (Prevention of Misuse) Act 1964 and the Dangerous Drugs Acts of 1965 and 1967. It thus brought all controlled drugs under the same statutory framework. In doing so, it also incorporated: the relatively new system of licensing doctors to prescribe heroin and cocaine [11] to addicts; the requirement for all doctors to notify addicts to the Home Office; regulations on the safe custody of drugs; and national stop and search powers for the police. It also established the first statutory advisory body, the Advisory Council on the Misuse of Drugs. The Act's system of classification was also new. Drugs were placed in three Classes, listed in Schedule 2 to the Act, and penalties for offences were related to the Class of drug involved in the offence. The offence of unlawful possession was divided between possession and possession with intent to supply, and a new defence was provided for people claiming lack of knowledge of the essential ingredients of certain drugs offences.

23 Section 1 establishes an Advisory Council on the Misuse of Drugs whose duty it is to keep the drug situation in the United Kingdom under review and to advise government ministers on the measures to be taken for preventing the misuse of drugs or for dealing with the social problems connected with their misuse.

24 Section 2 identifies the drugs to be controlled. They are listed in a schedule that is divided into three parts and are called 'Class A', 'Class B' or 'Class C' drugs depending on the part in which they appear. Confusingly the drugs are sometimes described as being Schedule 1, 2, 3, 4 or 5 drugs: such references are not to the Classes in Schedule 2 to the Act but to the Schedules to the related Misuse of Drugs Regulations 1985 [12]. The significance of the Classes is that, where a criminal offence is committed, the maximum penalties are determined by the Class of drug involved in the offence.

25 Sections 3 to 6 set out the main activities which, unless there is an exemption in the regulations made under section 7, are criminal offences if a control drug is involved. Under section 3 importation and exportation are prohibited although the actual offences are contained in and prosecuted under another statute, the Customs and Excise Management Act 1979. The other main offences covered are production, supply, possession, and possession with intent to supply. The cultivation of the cannabis plant is a separate offence under section 6 but it is also production under section 4. This is because the definition of 'cannabis’ in section 37 of the MDA was widened by section 52 of the Criminal Law Act 1977 so that it included virtually the whole plant and not just the flowering and fruiting tops. The courts have subsequently held that production of cannabis is equated with its cultivation [13].

26 Section 8 makes it an offence for the occupier or someone concerned in the management of premises knowingly to permit or suffer those premises to be used for (a) the production or (b) the supply of any controlled drug, (c) the preparation of opium for smoking or (d) smoking cannabis, cannabis resin or prepared opium. Section 9 prohibits smoking or otherwise using opium; frequenting a place used for smoking opium; and possessing utensils for smoking or preparing it. Section 9A makes it an offence to supply or offer to supply any article (except a hypodermic syringe) which the supplier believes may be used or adapted to be used in the unlawful administration (including self-administration) of drugs. The exemption
for hypodermic syringes was made as part of the national strategy to curb the spread of HIV through injecting drug use. Further offences are created in sections 18 to 21, including incitement to commit any offence under the MDA (section 19) and, while in the United Kingdom, assisting in or inducing the commission of offences in any place outside the United Kingdom (section 20 - the offence has to be one punishable under a corresponding law in the other country).

27 The regulations made under section 7 ensure that the appropriate exemptions are made from the offence provisions of the Act. Most controlled drugs have many legitimate medical or scientific uses. Their day-to-day use for medicine or for scientific research would not be possible if the doctors, pharmacists and scientists concerned were to be regarded as committing criminal offences in the course of their work. The regulations therefore ensure that legitimate activities are exempted from the relevant offence provisions of the MDA. What the Act prohibits, the regulations allow [14].

28 There are also controlled drugs, and preparations and products containing controlled drugs, which do not need to be subject to the full force of the MDA. For example schedule 5 lists certain products which may be freely imported or possessed despite containing controlled drugs (some of them in Class A) in minute quantities. Benzodiazepines are Class C drugs but, with the exception of temazepam since 1996, they are excepted from the prohibition on importation, exportation and, when in the form of a medicinal product, possession. Anabolic steroids are not subject to any prohibition on possession when in the form of a medicinal product, but can only be imported or exported in such a form by a person for administration to himself These results are achieved by placing the substances concerned in the appropriate schedule or part of schedule to the regulations. We explain the difference between the schedules to the regulations in Chapter Three. The significance of the schedules is quite different from that of the Classes in the Act, to which they bear no relationship. We emphasise this because we found that the position was widely misunderstood.

29 Section 10 gives wide powers to the Secretary of State to make regulations governing safe custody, documentation of transactions, record keeping, packaging and labelling, transport, methods of destruction, prescriptions, the supply of information on prescriptions to a central authority, the licensing of doctors to supply controlled drugs to addicted patients, and the notification by doctors of their addicted patients. The Addicts Index set up under the last power has been abolished, but the power under section 10(h) still exists and could in theory be used in future. Under section 11 the Secretary of State may give notice to the occupier of any premises on which controlled drugs are kept of precautions that must be taken for the safe custody of those drugs. It is an offence to contravene any directions given.

30 Sections 12 to 16 enable the Secretary of State to withdraw, by direction, the authority of a doctor, dentist, veterinary surgeon, veterinary practitioner, or pharmacist to prescribe, administer, manufacture or supply specified controlled drugs. There are procedures for referring cases at various stages to tribunals, advisory bodies or panels as appropriate.

31 Section 23 gives the police powers to search premises and to stop and search persons on suspicion that they are in possession of a controlled drug. Powers of arrest are set out in section 24, which is still valid in Scotland but has been replaced in England and Wales by sections 24 and 25 of the Police and Criminal Evidence Act 1984. We explain these powers more fully in our discussion of possession offences [15].

32 Maximum penalties are provided for in sections 25 and 26 and forfeiture of anything relating to the offence in section 27. Importation, production, supply, possession with intent to supply and section 20 offences are defined as trafficking offences for the purposes of the Drug Trafficking Act 1994. So is incitement, if it is incitement to commit a trafficking offence. Under the Crime (Sentences) Act 1997 a third consecutive trafficking offence involving a Class A drug attracts a mandatory minimum sentence of seven years imprisonment.

33 Most MDA offences (including production, supply, possession with intent to supply, possession, cultivation of cannabis and offences relating to opium under section 9) are subject to the provisions of section 28. This section enables a defendant to prove a lack of knowledge of facts relevant to a charge. A defendant cannot be acquitted if he believed the drug was controlled yet erred as to the precise nature of it. On the other hand he will be acquitted if he neither believed, nor suspected, nor had reason to suspect that the substance was a controlled drug at all. Where the prosecutor has to prove some other fact relevant to the charge, it is open to the defendant to prove that he neither knew, nor suspected, nor had reason to suspect the existence of it. Without section 28 the offences to which it applies would be absolute (i.e. the defendant could be convicted without proof of any guilty knowledge). It is nevertheless a high hurdle for a defendant to overcome compared to provisions which require the prosecution to prove knowledge, as is the case with importation offences under the Customs and Excise Management Act 1979 and premises offences under section 8 of the MDA.

Related legislation

The Customs and Excise Management Act 1979

34 The interrelationship between the MDA and the Customs and Excise Management Act 1979 (hereafter CEMA) is complex. Section 3 of the MDA prohibits importation or exportation of any controlled drug unless (i) there is an exception allowing importation or exportation in regulations made under section 7 or (ii) the importation or exportation takes place under licence issued by the Secretary of State. It is not, however, the MDA that makes it an offence to contravene this prohibition. Instead the relevant offences are set out in CEMA. It should be noted that regulations made under the MDA, or a licence issued by the Secretary of State under the MDA, may have the effect of preventing a particular action an offence under CEMA.

Table 1.1 Maximum penalties for main drug offences

Notes:
1. Under the Customs and Excise Management Act (CEMA)
2. Assisting in or inducing the commission outside the United Kingdom of an offence
punsishable under a corresponding law in force in that place. The Class of drug is not relevant.
3. Section 6.
4. Section 8.
5. Section 9.
6. Section 9A.
7. The maximum penalties are the same irrespective of the mode of trial. The Class
of drug is not relevant.

The Medicines Act 1968

35 The Medicines Act 1968 is a wide-ranging statute that regulates the many activities associated with the production and distribution of medicinal products, particularly when any of those activities are carried on commercially. 'Medicinal product’ is a term which is defined broadly and includes many substances that may not usually be regarded as being medicinal at all. Many require marketing authorisation or a licence before they may be distributed in the course of business. Complex and detailed provisions are made in the Act and its many regulations for the testing, sale, supply, packaging, labelling, prescribing, dispensing by pharmacists and selling in shops of medicinal products. The Act enforces this administrative regime with statutory criminal offences. Many controlled drugs are also medicinal products or the ingredients of such products. Thus substances that are supplied of the provisions of both the MDA and the Medicines Act, as well as their associated regulations, and prescription requirements in particular may arise under both enactments.

The Criminal Justice (International Co-operation) Act 1990

36 Part II of the Criminal Justice (International Co-operation) Act 1990 was passed to enable the United Kingdom to comply with the Vienna convention of 1988 [16]. It lists a number of chemicals (often termed precursors) that can be used to manufacture illicit drugs. These are subject to various controls designed to minimise the risk of their being obtained by criminals. Manufacture or supply contrary to section 12 is a trafficking offence for the purposes of the Drug Trafficking Act 1994. Notification of export, record keeping and the supply of information are required by regulations made under section 13. It is an offence to fail to comply with the regulations or to furnish false information in an attempt to comply with them.

The Drug Trafficking Act 1994

37 The Drug Trafficking Act 1994 is largely a consolidation of earlier legislation. It enables the United Kingdom to meet its obligations under the 1988 convention, in particular to create offences in connection with the laundering and handling of the proceeds of drug trafficking and to introduce measures to confiscate those proceeds. The convention allows the burden of proof to be placed on the accused to prove that the assets were lawfully acquired. The Act implements this and applies the civil standard of proof on the balance of probabilities, rather than the criminal standard of beyond reasonable doubt. It also designates which offences are to be treated as trafficking offences [17]. We describe the provisions of this important legislation, and our proposals for extending it, in greater detail in Chapter Four.

Footnotes:

1. ‘Room for Manoeuvre: Full Report’, April 1999, unpublished.
2. Article 7 (a)
3. Article 3, paragraph 2
4. See paragraph 8
5. Article 3, paragraph 4 (a)
6. Article 3, paragraph 4 (d)
7. Article 3, paragraph 4 (b)
8. Article 3, paragraph 4 (d)
9. Article 3, paragraph 4 (c)
10. Most of these are taken from the report cited at footnote 1.
11. The licensing requirement was extended to dipipanone in 1985.
12. See paragraphs 27 and 28
13. ‘Taylor V. Chief Constable of Kent [1981]’ 1 W.L.R. 606
14. See Chapter Three, paragraphs 42-45.
15. Chapter Five, paragraphs 20-23
16. See paragraph 9
17. See paragraph 32

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