Drugs and the Law - Chapter 5 - Non-Trafficking Offences

Drugs and the Law

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

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Chapter Five: Non-Trafficking Offences

Introduction: relevance of United Nations conventions

1 In this chapter we discuss the remaining offences created by the MDA where these raise important issues. But we defer discussion of section 6 (cultivation of cannabis) to Chapter Seven.

2 Possession is the key issue. The United Nations conventions permit more latitude in this area than with trafficking offences. Parties are required under article 3, paragraph 2, of the 1988 convention to establish possession for personal consumption as a criminal offence under their domestic law. This requirement, unlike that for trafficking offences, is subject to a country's 'constitutional principles and the basic concepts of its legal system'. This is particularly relevant for those countries whose constitutions enshrine principles of personal freedom, including the freedom to harm oneself

3 In Italy, possession for personal use is an administrative infringement only; in Spain it is not lawful but it is not an offence unless it occurs in public, when it attracts administrative sanctions only. This results from the application of the constitutional principles of those countries and the basic concepts of their legal system. It must, however, be borne in mind that the sanctions for administrative offences are not necessarily trivial. In Italy, for example, they may include suspension of one’s driving licence, gun licence or passport; in Spain also, driving and gun licenses may be temporarily withdrawn and other sanctions include fines or closure of the premises where the use took place.

4 Drug use as such is not a criminal offence in many countries (nor do the United Nations conventions seem to require this, although the interpretation is disputed). The United Kingdom and Ireland make it an offence to use opium; it is not an offence to use other drugs. In their case it is seen as sufficient to make possession the offence.

5 A crucial contrast between trafficking offences and possession for personal use lies in the sanctions to be provided. Under article 3, paragraph 4 (a), of the 1988 convention, trafficking offences must be punishable by imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation. There is no such requirement for possession for personal consumption. Although there are administrative sanctions for possession for personal use in Italy and Spain, there is no imprisonment. In countries where possession for personal use is a criminal offence, imprisonment is normally among the possible sanctions but this is not a requirement of the United Nations conventions.

6 Whatever the penal sanctions provided, article 3, paragraph 4(d), of the 1988 convention permits measures for the treatment, education, aftercare, rehabilitation or social reintegration of the offender to be provided as alternatives to conviction or punishment. As with trafficking offences, the definition, prosecution and punishment of personal consumption offences are reserved to the domestic law of the states which are party to the conventions. Accordingly, laws may broadly correspond as between nations but not be identical. Similarly, the parties to the conventions are afforded a greater latitude of discretion over enforcement and punishment than is generally understood.

7 In many cases, therefore, prosecution does not take place or the courts may respond to offences with non-penal measures. In the Netherlands, for example, the application of the expediency principle in the public interest results in the police and prosecution authorities waiving prosecution in most cases of possession of any drug in small quantities for personal use. As far as cannabis is concerned, prosecution is also waived in a wide range of offences involving its sale through coffee shops, in accordance with formal Dutch policy. In Germany, prosecution guidelines in cases of small amounts for personal consumption vary among the 16 Bundeslander, resulting in rates of non-prosecution of between 0.2% and 30.6% for all drugs offences and between 40-50% and 80-90% for cannabis cases. Almost all countries combine treatment provision with the criminal justice process.

Possession

8 Section 5 (1) of the MDA makes it unlawful to have a controlled drug in one's possession unless there is a relevant exemption in regulations under section 7. Subsection (2) makes it an offence to contravene this prohibition. Section 37 (3) states that the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another. The offence is not specifically confined to possession for personal use. It covers any offence of possession where intent to supply cannot be proved. In effect personal use cases come under it but it is no defence to claim that the possession was neither for supply nor for use.

9 The defences available under section 28 [1] apply to this offence but in addition section 5 (4) provides two special defences. Under the first, it is a defence for the accused to prove that he took possession of the drug for the purpose of preventing someone else from committing an offence in connection with it. He must in addition prove that after taking control of it he took such steps as were reasonably open to him to destroy it or to deliver it to someone lawfully entitled to take custody of it. The second defence is that he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession he took all such steps as were reasonably open to him to deliver it to such a person. The second defence, unlike the first, is not dependent on taking delivery in order to prevent the commission of a criminal offence: on the other hand it does not allow the drug concerned to be destroyed. In both cases the burden is on the accused to prove the defence.

Table 5.1 Maximum penalties for possession

Mode of trial Class A Class B Class C

(a) summary        six months or     three months or   three months or
                   a fine of £5,000 a fine of £2,500 a fine of £1,000
                   or both           or both           or both

(b) on indictment seven years or    five years or     two years or
                   an unlimited      an unlimited      an unlimited
                   fine or both      fine or both      fine or both

10 The maximum penalties for possession are shown in the preceding box. The Court of Appeal has said that fines are the most appropriate response to the possession of small amounts of cannabis for personal use. Custodial sentences are not ruled out in cases of persistent offending. The evidence we received suggests that custodial sentences are rare for possession of any drug if that is the only offence.

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Possession offences: the main facts
100,808 people (or 89% of all drugs offenders) were dealt with for possession offences in 1997. The numbers have gone up more than two and a half times since 1990 (39,350 persons). 69% (77,943 persons) were found in possession of cannabis. In 1997, 54% of all offenders were cautioned, and 58% of those dealt with for possessing cannabis.
The proportion of those found guilty by the courts who were sentenced to immediate custody was 11% (4,852 persons) in 1997, compared with 3% (1,551 persons) in 1990, more than for any other drugs offence. In 2,843 of these cases, possession was the drugs offence for which the longest sentence was given. Non-drugs offences may well have been involved in addition and/or there may have been earlier drugs convictions. The number sent to prison for a first offence of possession without any other offences being involved is likely to be very small but cannot be determined from the statistics. The average length of a custodial sentence was just under 4 months, the shortest for any drugs offence. 45% of those receiving such sentences were sentenced to one month or less and 96% to one year or less.
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Our conclusions

11 The United Nations conventions impose an obligation on the United Kingdom to establish possession for personal consumption as a criminal offence. Even if this were not so, there would be a strong case for creating such an offence, particularly in relation to Class A drugs, given the undeniable existence of problem drug use with consequences that go far beyond the health risk to the individual. We therefore conclude that the offence of possession should remain even where there is no intention to supply and the drug is meant for personal consumption. Nevertheless, the law should be flexible to minimise the harmful consequences of a contravention in appropriate cases. Where problem drug use is not involved, possession alone, even if repeated, should not necessarily result in a conviction. The law should, as the United Nations conventions allow, take full advantage of the leeway left by the conventions to deal with the less serious situations in a less punitive way. Our recommendations to this end are set out in the following paragraphs.

12 Prison sentences for possession only offences are not commensurate with the harm done by the offence, and they impose substantial harm of their own. If the objective is to reduce individual and social harm, as we believe it must be, there are better responses available whatever the drug involved. As the Advisory Council on the Misuse of Drugs concluded [2] 'drug-related problems are more effectively addressed in the community than in a custodial setting'.

13 But abolishing custodial penalties would rule out some community sanctions that are available to the courts only as alternatives to imprisonment. In most serious cases of problem drug use this will not matter because the offender charged with possession is likely to be charged with other offences at the same time. There may, however, be cases of problem drug users in possession of Class A drugs but not charged with any other offence where the courts need to consider the full range of community orders. Because of the pre-eminent harm of Class A drugs, we accept that a custodial sanction may be needed in such cases. It would act both as an incentive to treatment and in order to enable the courts to consider the use of a wider range of such orders, including community service orders, than would otherwise be possible. For this reason we accept that a maximum penalty of imprisonment albeit on a lower scale than at present should be retained for Class A drugs.

14 In the case of Class B and Class C drugs, we recommend that the present custodial penalties be removed and that the courts develop further the non-custodial responses already available to them (which will in many cases also be appropriate for users of Class A drugs). These responses include fines, probation orders, probation orders with treatment conditions attached, and conditional discharges. We set out our recommendations on fixed out-of-court penalties in Chapter Eight. They are in our opinion particularly suitable for cases of possession of Class B or Class C drugs but only in cases where something more than a caution is needed.

15 We accept that abolishing custodial penalties for possession of Class B and C drugs rules out several other options that would otherwise be available to the courts, but we do not see the necessity to go beyond probation, probation with a condition of treatment, fines or conditional discharges. The courts have developed methods of enforcement that keep imprisonment for non-compliance to a minimum. In cases of possession of Class B and C drugs, fines can be considered for failure to comply with a probation order. It is also possible for the court to impose a community service order as a sanction for breach of a probation order.

16 The Government guidelines on drug treatment and testing orders [3] suggest that they are envisaged as being particularly suitable for those convicted of acquisitive crimes committed in order to obtain money to buy drugs. This leaves open the question of how best to deal with offenders whose only offence is possession of drugs but with whom there are clear indications of problem use of drugs, not necessarily involving drug-related crime. We believe that the test should be whether, at the time they come to the attention of the courts, their drug-taking includes such features as dependence, regular excessive use and serious health and other social consequences. If it does, the courts have a wide range of sanctions that enable them to choose an appropriate response.

17 Even where Class A drugs are involved, we agree that, as the Home Office guidance suggests, a drug treatment and testing order may not be appropriate for offenders who have been convicted of possession only. There are, however, other disposals not depending on the availability of penalties of imprisonment which the courts can use. It has, in particular, been possible since the Criminal Justice Act 1991 to attach to probation orders conditions that require treatment. The offender's consent is required. Because problem drug use is closely linked with many other problems including unemployment and homelessness, such orders are a constructive approach to tackling this range of issues. There is recent evidence [4] of the effectiveness of such orders in retaining offenders in treatment and reducing their drug use.

18 Drug treatment and testing orders may only be used in areas where the Secretary of State has certified that the necessary facilities are available. When this happens, they can be used concurrently with probation orders but it will no longer be possible to attach treatment conditions to probation orders in drugs cases. Thus the courts in those areas will not be able to use probation orders with treatment conditions attached. This is a retrograde step because it deprives the courts of an appropriate and effective response to minor cases where there is evidence of problem drug use. Although in theory drug treatment and testing orders might be used, it is clear that this is not what they were designed for. Moreover their enforcement through regular drug testing and reports to the courts on progress goes far beyond the requirements of possession only offences. We therefore recommend that, as soon as legislative opportunity permits, the progressive repeal of the ability of the courts to attach treatment conditions to probation orders in drugs cases is reversed.

19 We recommend that the maximum penalties on summary conviction for possession of Class A drugs be six months imprisonment (the same as at present) or a fine of £2,500 (as compared with the present £5,000) or both. For Class B the maximum penalty on summary conviction should be a fine of £1,000 (instead of £2,500 as at present) and for Class C a fine of £500 (instead of £1,000 as at present). On indictment the maximum penalties for possession of Class A drugs should be one year's imprisonment (in place of the present seven years) or an unlimited fine or both. There is no need to set maximum penalties on indictment for possession offences involving drugs in Classes B and C; we do not believe that custody should be available in such cases and accordingly we see no need to try them on indictment at all. They would become offences triable summarily only. The following table sets out our recommendations alongside the present penalties.

Table 5.2 Maximum penalties for possession: present law compared to our recommendations

a) summary

b) on indictment

Arrestability

20 The powers of arrest in section 24 of the MDA have been replaced in England and Wales by the arrest provisions of the Police and Criminal Evidence Act 1984 (PACE). Section 24 of PACE lays down that any offence for which the maximum penalty on indictment is five years imprisonment or more is an 'arrestable offence’. So are certain offences, listed in section 24 (2) of PACE, that have maximum penalties of less than five years custody. The only conditions that have to be met are that the constable must have reasonable grounds for suspecting that an arrestable offence has been committed and that the person he is about to arrest is guilty of the offence. He may also arrest anyone who is about to commit an arrestable offence or anyone whom he has reasonable grounds for suspecting to be about to commit one.

21 Where the offence is arrestable under section 24 of PACE the police may arrest suspects without a warrant and take them to the police station for further questioning; search premises without a warrant under section 18 of PACE for evidence of the offence for which the arrest was made and any connected and similar offences; and enter premises without a warrant under section 17 of the same Act and search them for the purpose of arresting a person for an arrestable offence. It is these related powers that the police have argued, in evidence to us, are particularly valuable in collecting evidence across a broad front of crime without the offender being able to warn accomplices.

22 Where the offence is not arrestable under section 24 of PACE, police powers are more limited. Under section 25 of PACE suspects may be arrested without warrant only if

i) it is impracticable to serve a summons on them or

ii) their addresses are unknown or uncertain or

iii) the arrest is necessary to prevent them from injuring themselves or others, causing damage or obstructing the highway.

23 In Scotland, where PACE does not apply, police officers have powers of detention for up to six hours under section 14 of the Criminal Procedure (Scotland) Act 1995 for any offence punishable by imprisonment. This is not a power of arrest: it enables the police to detain suspects for the purpose of facilitating the carrying out of investigations. In addition section 24 of the MDA remains in force. Under this any person suspected with reasonable cause of committing an offence under the MDA may be arrested if

i) the constable believes with reasonable cause that the person will abscond unless arrested or

ii) he does not know and cannot ascertain the suspect's name and address or

iii) he is not satisfied that the name and address supplied is true.

The maximum penalty is not relevant.

24 Under our recommendations for lower penalties for possession, no possession offence would be arrestable under section 24 of PACE. The maximum penalty for possessing Class A drugs would be well below the 5 year criterion and there would be no penalty of imprisonment at all for Class B. It should be noted that possession of Class C drugs is not arrestable at present because the maximum penalty is 2 years. We have not been informed of any problems arising from this.

25 In Scotland, police powers of arrest would not change if; as we envisage, section 24 of the MDA continued to apply there. The powers of detention under section 14 of the Criminal Procedure (Scotland) Act 1995 would continue to apply to possession of Class A drugs. They would not, however, apply to possession of Class B drugs since there would no longer be a maximum penalty of imprisonment. Nor would they apply to offences of possession of cannabis, since that would be transferred to Class C and possession offences where Class C drugs are involved do not at present attract section 14 powers.

26 We have considered whether special provision outside PACE should be made to retain the present police powers of arrest in England and Wales. If the effect of arrestability under section 24 of PACE is to be retained in whole or in part in England and Wales, the options are to retain it

i) for Class A drugs or

ii) for drugs in both Classes A and B or

iii) for cannabis when it is transferred from Class B to Class C or

iv) all three of the above.

27 By far the most contentious issue is the powers of arrest that should apply to cannabis possession. As we have argued in Chapter Three, there is no disputing the case on grounds of relative harm for moving this drug from Class B to Class C. The police service have, however, put to us a strong case on pragmatic grounds for retaining their present powers of arrest. They argue that their ability to disrupt illicit drugs markets would be seriously hampered without a power of arrest on the lines of section 24 of PACE. Cannabis is often sold in such markets along with other drugs. The ability to arrest for its possession can often be the first step to arresting people who are dealing in other more serious drugs. This opportunity would be lost if the cannabis offender had to be released and could then warn accomplices and destroy evidence that might otherwise be found in searches conducted under the related powers of PACE. Establishing continuity of evidence from purchaser to dealer would become impossible. Alternative detection techniques (involving for example surveillance or undercover work) can be used. But they are expensive compared to the more economical and equally effective tactic of stopping and searching those attending the market and arresting those on whom cannabis is found while evidence of more serious drugs crimes is collected.

28 The police further argue that even where cannabis markets are isolated from the markets in other drugs their presence is a major nuisance to communities, especially on housing estates, and police powers to deal with them should not be weakened in any way. The police have been given a joint responsibility, with local authorities, for seeking anti-social behaviour orders in appropriate cases under the Crime and Disorder Act 1998. Removing arrestability from cannabis possession would hamper the contribution they might otherwise be able to make to combating neighbourhood nuisance.

29 The power of arrest for cannabis possession is also, in the police view, invaluable as a means of detecting other more serious offences, and this is not limited to drugs offences. It may lead to arrests for other kinds of offences, for example those involving weapons. An examination of 811 reports of cannabis offences across eight representative divisions of the Metropolitan Police Service suggested that between 2.5% and 10% of cannabis possession cases are linked with other offences. In 1998/99 this might have meant that between 530 and 2,100 cases would have been undetected across the Metropolitan Police District as a whole had possession of cannabis not been an arrestable offence. The actual range may be lower because it is unclear in how many of these cases cannabis possession was the first offence to be detected, and led on to the discovery of more serious offences, and in how many cases cannabis was found at the same time or after the more the more serious offences were detected.

30 There would also be an increased risk of allegations against police officers that drugs taken from offenders on the streets were being sold on corruptly or otherwise misused. This risk is minimised at present by the application of various procedures for recording and destroying seized drugs but these take place at the police station after arrest. This protection, which benefits suspects as well as officers, would be greatly reduced if cannabis, overwhelmingly the main drug seized, were transferred to Class C without arrestability being retained.

31 We have much sympathy with these arguments but we have not been persuaded by them. We have considered the results of the examination of cannabis cases described in paragraph 29 but we do not believe that the opportunity costs of removing arrestability for cannabis possession are significant or that the arrests of people in possession of cannabis leads at all frequently to arrests for more serious offences. Indeed, we have serious doubts about the methodology underlying the exercise and the results are open to more than one interpretation.

32 We accept that arrestability should be retained where offences involving Class A drugs because of the harm that these drugs do to individuals, and so that the police retain the powers necessary to obtain intelligence on suppliers and to disrupt illicit markets. The police powers related to arrestability seem essential if the major traffickers are to be brought to book. Class B drugs seem to us to present serious enough problems to justify retaining the same powers for the same reasons. With Class C drugs, however, it seems to us disproportionate and a possible violation of the European Convention of Human Rights to provide full arrestability under section 24 of PACE. It is not widely realised that it is not an offence at all to possess many of the drugs in Class C provided they are in the form of a medicinal product. Class C possession is not an arrestable offence at present and in the light of the considerations just stated we have no proposals to change this following our recommended transfer of cannabis from Class B to Class C.

33 In Scotland, since powers of arrest are not affected by our proposals, the questions are whether the effect of the present powers of detention under section 14 of the Criminal Procedure (Scotland) Act 1995 should be retained for possession of Class B drugs; and whether they should be extended to possession of Class C drugs when cannabis is reclassified - powers of detention for possession of Class A drugs would not be affected since that would remain an imprisonable offence. We recommend, for the same reasons as we give for our recommendations on powers of arrest in England and Wales, that the effect of section 14 be preserved in Scotland for possession of Class B drugs but that it should not be extended to possession of drugs in Class C.

34 We should in any case like to see the police develop responses to illicit markets that do not involve very large numbers of stops and searches of suspected cannabis users. We doubt the efficacy of this measure at present and have received no evidence that dealers are arrested at all frequently as a result of arrests of cannabis purchasers. The present approach also seems to us to encourage such searches in contexts unrelated to illicit markets, with unwelcome consequences for relations between police and public. We accept that our proposals could increase the risk of false allegations of corruption against police officers. Although it is a risk that already exists to some extent in relation to the drugs now in Class C, moving cannabis into that Class clearly makes a great difference. But it seems to us insufficient justification for a power of arrest that it is required to protect police officers against false accusations of malpractice. We recommend that the police develop procedures for properly recording and documenting drug seizures that take place on the streets so that officers are protected against false allegations. A possible procedure, which would need further testing, would be as follows:

i) officers seize the substance and tell suspects that they are being reported for the offence of possession;

ii) the officer lists the substance on the stop, and search slips currently being trialled by the Metropolitan Police as part of the search record and offers the suspect a copy;

iii) the evidence is returned to the station and sealed there;

iv) following any analysis or case disposal decision, the offender is notified by post either in the form of a summons or proposal to administer a caution.

Where the police propose to deal with the matter by way of a caution, the suspect would be invited to come to the police station for that purpose. Where the suspect refuses or fails to respond to such an invitation, the police would decide between taking no further action or submitting the papers for issue of a summons.

Premises offences

35 Under section 8 of the 1971 Act, it is an offence for the occupier or person concerned in the management of any premises knowingly to permit or suffer the following activities to take place on them:

a) producing or attempting to produce a controlled drug;

b) supplying or attempting to supply or offering to supply a controlled drug;

c) preparing opium for smoking;

d) smoking cannabis, cannabis resin or prepared opium.

The section does not attract section 28 [5]. It is not, however, an absolute offence. Because it has to be committed 'knowingly', the burden is on the prosecution to prove that the accused knew that the prohibited activities were taking place. An offence against section 8 is not a drug trafficking offence for the purposes of the Drug Trafficking Act 1994. Conviction therefore does not result in confiscation under that Act, although it may lead to forfeiture under section 27 of the MDA.

36 'Premises' are not defined nor are the terms 'occupier' or 'concerned in the management' of premises. No distinction is drawn between people's homes and premises to which the public have access, for example for entertainment. Parents who allow their children to smoke cannabis are therefore liable to prosecution under section 8, as are managers of services providing treatment, care or accommodation who permit their clients to do so. The section also catches managers of dance venues who permit or suffer their customers to carry out the activities caught by section 8. The manager or occupier of premises does not have himself to be carrying out these activities. The offence essentially is that of failing to prevent others from carrying them out.

37 The range of drugs covered by each paragraph of section 8 should be noted. Paragraphs (a) and (b) apply to all controlled drugs. Paragraph (c) applies to opium only. Paragraph (d) applies only to cannabis, cannabis resin and prepared opium. The reasoning apparently was that an occupier or manager of premises may reasonably be expected to be aware of production or supply of any drugs on the premises but when drug consumption is concerned cannabis and opium are special cases because their distinctive smells make them readily detectable.

Table 5.3 Maximum penalties for premises offences

Mode of trial Class A Class B Class C

(a) summary        six months or     six months or     three months or
                    a fine of £5,000 a fine of £5,000 a fine of £2,500
                    or both           or both           or both

(b) on indictment 14 years or       14 years or       5 years or
                    an unlimited      an unlimited      an unlimited
                    fine or both      fine or both      fine or both

38 There are no sentencing guidelines laid down by the Court of Appeal so far as we are aware.

39 Section 8 is a means of ensuring that occupiers and people concerned in the management of premises are involved in policing the MDA. The requirement is potentially onerous. We accept, however, that production [6], supply, and dealing [7] are activities so serious that those in charge of premises may reasonably be put under an obligation not to ignore them.

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Premises offenders: the main facts
804 persons were dealt with for premises offences in 1997, an increase of 13% over 1996 (714), and more than double the 1985 figure of 284. Cannabis was the drug involved in the overwhelming majority of cases (645 or 80% in 1997, the same proportion as in 1985). 25% of offenders were cautioned in 1997 as opposed to 10% in 1985, almost all for offences involving cannabis.
Of those found guilty by the courts in 1997, 138, or 23%, were sentenced to immediate custody. This is the same as the proportion given custodial sentences in 1985; in the intervening years lower percentages were imprisoned (9% in 1990 and 17% in 1995). The average sentence in 1997 was about sixteen months, the same as in 1990, though there was a period of shorter sentences in the interval.
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40 In some cases, action under the Public Entertainments Licences (Drug Misuse) Act 1997 may be the better way of proceeding. This enables a local authority to revoke a public entertainments licence with immediate effect if there is a serious problem of drug supply. But supply may take place, as may production, on premises other than places of public entertainment. If the occupiers or managers of those premises are to be made responsible for taking reasonable steps to stop them, something on the lines of section 8 (a) and (b) seems necessary. We are, however, concerned that these paragraphs may be a source of serious injustice to people who do not want drugs activities taking place on their premises but may be deemed by the courts not to have done enough to prevent them. People in charge of certain premises, particularly those used for education or the care of the homeless, sick or otherwise vulnerable, may face severe penalties for failing to prevent activities over which they have very limited control. There is also potential conflict between their duty to the people in their care and the demands of the law.

41 We recommend therefore that the section be redrafted so as to make it clear that the main aim is to deter those who wilfully allow others to supply or produce controlled drugs. The redraft should repeal the word ‘suffers', which is unclear and confusing, and replace the words ‘knowingly permits' with the words ‘knowingly and wilfully permits' [the production or supply of controlled drugs]. ‘wilfully’ should be defined as meaning ‘not caring whether the unlawful production or supply takes place or not'. Finally, it should be provided that a person is not to be regarded as acting wilfully merely by reason of his failure to disclose confidential records or material in respect of the persons in his care.

42 Subject to these amendments, we recommend that paragraphs (a) and (b) of section 8 be retained and extended to include the new offence of dealing that we have recommended [8]. It seems to us wrong that there should be no distinction in maximum penalties for offences involving Class A and Class B drugs and we recommend a reduction in the maximum custodial penalty on indictment for offences involving drugs in Class B from 14 years to 7.

43 Paragraphs (c) and (d) of section 8 are anomalous with the rest of the Act in that they single out use and only where opium and cannabis are concerned. The first drug is seldom used, the second is not nearly as harmful as the controlled drugs that are not mentioned. This is contrary to our desired objective of a law which is consistent in its approach to the relative harms of different drugs and the activities involving them. One absurd effect of the present law is that an occupier who sees cocaine being snorted or heroin injected is committing no offence if he does nothing to prevent it while if he smells cannabis or opium he is committing an offence unless he does something to stop it.

44 One possible solution would be, as has been recommended by ACPO and others, to extend paragraphs (c) and (d) to all controlled drugs. We prefer the alternative of repealing the paragraphs altogether. This would leave the more serious activities in relation to all controlled drugs to be caught by paragraphs (a) and (b). As far as the offences of use are concerned, insofar as the law has an influence at present, it is likely to drive drug-taking out on to the streets and other places where it is potentially far less safe. Our recommendation is intended to reverse that effect.

45 Even more important, the changes that we recommend would allow active harm reduction measures and education to be provided in the entertainment venues where a very large amount of combination and stimulant drug-taking by young people occurs. The significant growth in such drug-taking in entertainment, and especially dance, venues has been one of the most notable developments in the last 25 years. These settings are of prime importance for education and harm reduction measures. We believe that it should be an obligation on the owners and managers of all premises to provide for the safety of drug-takers and that such measures should be a condition of all licences. We also think that educational material about the main drugs and their risks, including the risks of driving, should be widely available in these settings.

Opium offences

46 Section 9 of the MDA lays down opium-related offences as follows:

a) smoking or otherwise using prepared opium;

b) frequenting a place for the purpose of smoking opium;

c) possession of pipes or utensils for smoking opium or preparing it for smoking.

The maximum penalties on summary conviction are 6 months imprisonment or a fine of £2,500 or both. On indictment they are they are 14 years imprisonment or a fine or both. Since the offences relate only to opium there are no Class variations. We are not aware of any sentencing guidelines laid down by the Court of Appeal.

47 Few offenders are dealt with under this section: there were none in either Scotland or Northern Ireland from 1993 to 1996 and 3 in 1997. In England and Wales 43 people were found guilty or cautioned in 1995, 11 in 1996 and 20 in 1997. 14 of those found guilty in 1997 were given sentences of immediate custody. None were cautioned.

48 In our view, section 9 should be repealed. It is anomalous in that it is the only section of the MDA which directly makes use of any drug an offence. It is also anomalous in singling out opium, presumably because of the requirements of the Hague Convention of 1912. But opium no longer constitutes the central drugs concern that it did then, nor does the section seem necessary to satisfy the requirements of the present United Nations conventions. Opium dens, if still a problem, can be dealt with, albeit less directly, under other sections of the MDA. A further anomaly is that this section makes it an offence to possess (as opposed to supply as in section 9A, which we discuss below) the equipment to which it applies.

Paraphernalia

49 Section 9A, inserted into the MDA by the Drug Trafficking Offences Act 1986, is aimed at the sale of drug administration kits. It makes it an offence to supply or offer to supply any article which may be used or adapted to be used in the administration of a controlled drug, believing that the article is to be so used. There is a specific exemption for hypodermic syringes. A further offence is to supply or offer to supply articles to be used for preparing controlled drugs. 'Administration' includes administration to someone else, self-administration and self-administration with someone else’s assistance. Unlike opium smoking utensils under section 9, it is not possession that is an offence but supply or an offer to supply.

50 Section 9A offences are summary only. The maximum penalty is six months imprisonment or a fine of £5,000 or both.

51 From 1993 to 1997 no person was dealt with for this offence in Scotland or Northern Ireland. In England and Wales the figures for section 9A offences in the same years never reached double figures - the highest number was 7 in 1993; in the later years the number has been 2, 3 or 4. It is not clear why prosecutions under this section are so rare. It may be that prosecution authorities see difficulty in proving that the suppliers of otherwise innocuous equipment actually believed that it would be used to administer drugs. Or the relatively low maximum penalties may have something to do with it.

52 If the offence is to be retained, we regard it as of paramount importance that the exemption for hypodermic syringes be retained and extended. This exemption is essential for the continuance of needle exchange schemes that have been so crucial in restricting the spread of HIV and other infections. The exemption should be extended so as to include other products on sale at pharmacies that can contribute to making drug use safer. A recent report by a working party set up by the Royal Pharmaceutical Society of Great Britain on pharmaceutical services for drug misusers mentions citric and ascorbic acids, water for injections, swabs, tourniquets and filters. We strongly support their recommendations.

53 There is, however, very little to be said for retaining section 9A at all. It is a dead letter. It is also inconsistent to make the sale of drug-taking equipment an offence while exempting, albeit for extremely cogent reasons, hypodermic syringes. If the exemption is widened as we and the Royal Pharmaceutical Society recommend, there will be still less purpose in keeping the section. We recommend its repeal accordingly. There might then be some scope for using section 19 (incitement) to prosecute serious cases of sale of drug administration equipment. If so, however, we recommend that the exemption for hypodermic syringes, extended to other products as we and the Royal Pharmaceutical Society propose, should for the avoidance of doubt be inserted into section 19. There will then be no risk of pharmacists being prosecuted for inciting drug use by selling such products,

Drug-driving

54 There is emerging evidence that drug-driving is an increasingly serious problem. The Department of Environment, Transport and the Regions (DETR) published in June 1997 the preliminary results of a three-year survey designed to measure the incidence of drugs in road accident deaths. This was followed in February 1998 by the results of the first fifteen months of the survey. The preliminary results show that the monthly average number of deaths of drivers of cars and riders of two-wheel vehicles is 37 after taking illicit drugs and 27 after taking excess alcohol. This compares with figures from an equivalent survey in 1985-87 of 9 deaths on average a month after taking illicit drugs and 46 after excess alcohol.

55 The main increases have been in the number of cannabis users killed in road accidents (10% of the drivers who were killed tested positive for cannabis) and the number killed after taking two or more different types of drug. The DETR note, however, that the conclusion cannot necessarily be drawn that cannabis was a factor in all the accidents where the driver or rider tested positive for cannabis. This is because cannabis remains in the bloodstream for up to 4 weeks after it is taken by regular users, whereas its effect on driving is probably limited to at most 24 hours after it is taken. 19% of drivers who had taken illicit drugs had also taken alcohol, far less it seems than in some other countries, where 75% of drivers with cannabis in the bloodstream have been reported also testing positive for alcohol.

56 It seems to us that, because of the numbers who use it, across all social classes, cannabis driving is a special problem. As the DETR results indicate, there has been a significant increase in the number of cannabis users killed in road accidents. Unfortunately the length of time it stays in the blood make this difficult to assess with any precision, and there seem to be difficulties in developing an accurate roadside test for cannabis intoxication. The law on drug-driving is a matter primarily for road traffic legislation, not the law on drugs. Nevertheless one of our aims is to develop responsible norms of drug-driving behaviour akin to the progress that has been made in drink-driving norms among the young. The advantages of a less punitive approach to cannabis possession are that it allows for accurate health education messages and their promotion at public venues. Such messages would emphasise in particular the potential dangers of short-term cannabis intoxication, particularly if driving.

Footnotes:
1. See Chapter One, paragraph 33.

2. ‘Drug Misusers and the Criminal Justice System Part IlI: Drug Misusers and the Prison System - an Integrated Approach’, London, HMSO 1996. Paragraph 1.17.

3. See Chapter Eight, paragraphs 26-28.

4. M Edmunds, T. May, M. Hough, ‘Doing Justice to Treatment: referring offenders to drug services’, OPAS Paper 2, London, Home Office 1999.

5. See Chapter One, paragraph 33.

6. Subject to our views on the cultivation of cannabis, which we give in Chapter Seven, paragraphs 38-41.

7. Under the new offence that we recommend in Chapter Four.

8. In Chapter Four.

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