Emerald Group Publishing Limited
Copyright © 2011, Emerald Group Publishing Limited
Global Commission on drug policy reform calls for urgent reforms to drug policy
Article Type: Legal Eye From: Drugs and Alcohol Today, Volume 11, Issue 3
On 2 June 2011, the Global Commission on drug policy reform (“the Commission”) launched its report (Global Commission on Drugs, 2011) calling for a fundamental reform of national and global drug policies. The Commission consists of many leading and respected politicians; policy makers and business people including three ex-presidents of Latin America; Paul Volcker former Chairman of the Federal Reserve; Kofi Annan; Ruth Dreifuss the ex-president of Switzerland; and Richard Branson. One of the Commissioners is the Prime Minster of Greece, George Papandreou, whose country has just put a Bill before Parliament to decriminalise possession of all drugs.
The Commission’s report highlighted that the global war on drugs had failed “with devastating consequence for individuals and societies around the world” (Global Commission on Drugs, 2011, p. 2). The Commissioners made a number of recommendations including:
The decriminalisation of drug possession.
That governments experiment with legal regulation specifically referring to cannabis.
Promoted harm reduction including ensuring the availability of OST and needle exchanges.
End the use of practices that infringe people’s human rights including forced detention; forced labour; physical or psychological abuse. This would include both those who use drugs and those at the lower supply end of the illegal market.
Invest in credible prevention schemes which go beyond the simple “just say no” message.
Focus on reducing the harms associated with drug markets rather than the markets themselves (Global Commission on Drugs (2011, pp. 2-3).
This important report was welcomed by those working in the drug policy reform field and received significant media coverage. However, the usual stock reply was issued by governments across the world. The UK Government responded to the report by stating “We have no intention of liberalising our drugs laws. Drugs are illegal because they are harmful – they destroy lives […] (Grew, n.d.)”. The US Government also responded negatively to the report, “Making drugs more available – as this report suggests – will make it harder to keep our communities healthy and safe (BBC News, n.d.)” Even the Mexican Government, a country devastated by the “War on Drugs” was critical of the Commission’s findings, stating that “legalisation won’t stop organised crime, nor its rivalries and violence” (BBC News, n.d.). Considering that the cannabis exported from Mexico to the USA now makes up anywhere between 40 and 67 per cent of the market, there is clearly huge profits to be had for the cartels. Whilst the Mexican Government is right that that legalisation would not stop “organise crime” it may significantly reduce the number of people involved and the level of violence associated with the current situation.
The knee jerk reactions from some politicians underlies the notion that any rhetoric other than a “tough on drugs” stance is tantamount to political suicide. This is a failure on the part of elected representatives to recognise that the current policy is anything other than “tough”, where there is no government control over illicit substances and a market with an annual turnover of $320 billion (UN, 2007) is in the hands of criminals. The Commission’s report is a valuable addition to the calls for reform and hopefully soon those in power will start to listen.
Liberal Democrats Conference puts drug policy reform on the agenda
Liberal Democrats for drug policy reform have had their motion “protecting individuals and communities from drugs harms” accepted as a part of the conference agenda. The motion calls for the establishment of a new independent body to carry out an impact assessment (IA) of the Misuse of Drugs Act 1971, the IA would evaluate the Act in terms of its economic and scientific basis. The independent body would also be required to consider:
decriminalisation as a model for adoption in relation to possession offences;
a regulated market for cannabis;
the transfer of resources to education and treatment from the savings made from not pursuing a criminal justice approach; and
heroin maintenance prescribing for those who use heroin problematically.
The motion will be debated on the floor of the conference on the 15 September and if adopted by the members will become Liberal Democrat policy. It will not, however, form part of the Coalition Government’s policies and considering the Conservative stance on drug policy it is unlikely they would even consider it.
Payment by results
The Coalition’s Drug Strategy, published in December 2010 (Home Office, 2010), proposed to introduce a model of payment by results in respect of drug treatment. The Home Office advised that the model would first be piloted for a three year period in eight pilot areas and each area would then be subjected to a review of the pilot to ascertain the outcomes. The pilot areas were announced in April 2011 and the subsequent six months are being used to co-design the payment by results model.
Initially, there was much concern in the drugs field that the results specified would be impractical and unobtainable. That if abstinence was the main or only goal then it could have negative consequences both in terms of the clients who would be allowed to access the service (“cherry picking”), and in the likely low level of achievement based on a “drugs free” approach. However, the draft outcomes (Department of Health, 2011) (or results) published by the Department of Health in July 2011 show that a level of pragmatism has been applied to the proposals. Whilst abstinence remains one of the goals for measuring outcomes, greater flexibility can be seen in the separate heading of “Health and Wellbeing” where a decision to no longer inject or an improvement in housing over the last 12 months or a Hepatitis B vaccination can all be treated as an outcome.
Whilst it is positive to see support for a more holistic approach to the payment by results outcomes, serious concerns still exist in relation to the whole model. The treatment of problematic drug use is a complex area and no provider should be coerced into ensuring a client exits the treatment system simply to meet an outcome. There is little consideration to the role of opiate substitute prescribing in the draft outcomes. More importantly not enough clarification has been provided in terms of the financial structures related to such a model. If “complete payment by results” is adopted then the current main drug treatment providers, even the large ones, are unlikely to be able to provide the pre-financing required to manage such a system. Large commercial providers such as Serco are more likely to enter the bidding arena – this is where the real concerns should lie.
Clarification on the law as it relates to cannabis cultivation and possession with intent to supply
Previously, the Crown Prosecution Service has charged those caught cultivating cannabis with either a charge of cultivation contrary to section 6 of the Misuse of Drugs Act 1971 (“the Act”) or production of a Class B substance contrary to section 4 of the Act. This is perfectly lawful, however, in addition charges of possession with the intention to supply (s5 (3) of the Act) have also regularly been applied to defendants in relation to the possible yield of the plant. The Court of Appeal has clarified this practice in the case of R v. Wright.
The defendant has been caught cultivating cannabis, however, the plants were young and would have required a number of months to mature. At the first hearing both the experts for the prosecution and defence agreed that there was no useable or saleable cannabis from the plants seized. At this point in the trial the defence submitted that the defendant had “no case to answer” in respect of the possession with intent to supply charge, this was rejected by the trial judge and Mr Wright was sentenced to three years imprisonment (a sentence of two years to run concurrently in respect of a production offence was imposed).
The matter was appealed. The Court of Appeal decided that since the cannabis from the plants could not be used or sold, there was no intention to supply in relation to the plants seized. The Court reasoned that in order for there to be an intention to supply “there must be an intention to supply the thing of which the defendant is in possession”. Clearly, Mr Wright would have had no intention to supply cannabis (there were no flowering heads) that was a few weeks old – in reality it simply would not have been possible. The case clarifies that charges of intention to supply should only be brought in cases of cultivation or production where there is a useable product.
Release better drug laws campaign
On the same day that the Global Commission on drug policy reform launched its report, Release launched a new campaign, “Drugs – It’s Time for Better Laws”. The first step of the campaign was a letter to David Cameron which highlighted the failure of the UK’s drug strategy and called for a review of the current policy. In particular, Release highlighted that nearly, 80,000 people last year were convicted or cautioned for drug offences and stated that was is a waste of resources both in terms of the cost to the public purse and the restrictions on people’s futures in regards to employment and education. The letter was signed by forty high profile individuals including three ex-chief constables, leading lawyers and politicians and a number of artists including Dame Judi Dench, Sting and Julie Christie. The campaign is being supported by social media which can be accessed at: www.release.org.uk/decriminalisation.
The campaign will continue in the coming months with research being undertaken about the disproportionate policing and prosecuting of drug offences in the UK in terms of age; ethnicity and deprivation.
Niamh Eastwood, Head of Legal Services, Release
1. R v. Wright  EWCA Crim 1180.
BBC News (n.d.), “Global war on drugs ‘has failed’ say former leaders”, available at: www.bbc.co.uk/news/mobile/world-us-canada-13624303
Department of Health (2011), “Piloting payment by results for drugs recovery – draft outcome definitions”, 13 July, available at: www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_128238
Global Commission on Drugs (2011), War on the Drugs: Report of the Global Commission on Drug Policy, Global Commission on Drugs Policy, Rio de Janeiro, June
Grew, T. (n.d.), Ainsworth Signs Drug Letter, Epolitix, London, available at: www.epolitix.com/1832-blog/blog-post/newsarticle/ainsworth-signs-drugs-letter (accessed 2 June 2011)
Home Office (2010), “Reducing demand, restricting supply, building recovery: supporting people to live a drug-free life”, December, available at: www.homeoffice.gov.uk/drugs/drug-strategy-2010/
UN (2007), World Drug Report, United Nations, New York, NY, p. 170