Legal Eye

Citation

Eastwood, N. (2012), "Legal Eye", Drugs and Alcohol Today, Vol. 12 No. 1. https://doi.org/10.1108/dat.2012.54412aaa.003

Legal Eye

Article Type: Legal Eye From: Drugs and Alcohol Today, Volume 12, Issue 1

The House of Lords meeting on Drug Policy Reform

On the 17 and 18 November 2011 the All Party Parliamentary Group on Drug Policy Reform hosted a high-level meeting with ministers, policymakers, and experts to discuss developments in drug policy.

The meeting, held at the House of Lords, saw representatives from 14 countries come together to discuss how to develop progressive drug policies. Those present were mainly from Latin America and Europe and many had already adopted models of decriminalisation in relation to the possession of drugs.

The meeting was an opportunity for the Global Commission on Drug Policy (2011) to present its findings. Ruth Dreifuss, the ex-President of Switzerland, and Paul Volcker, a former chairman of the US Federal Reserve, presented the conclusions of the Commissions’ report including: recommendations that personal use and possession of drugs be decriminalised; that problematic drug use (PDU) be treated as a health and not criminal justice issue and that states should experiment with legal regulation of some drugs.

Portugal and the Czech Republic presented on their models of decriminalisation. Interestingly, the Czech Republic had decided to adopt a decriminalisation of drug possession after carrying out a cost-benefit analysis of the criminal system that has been adopted in 2000. After a two year project that was concluded in 2002, research found that:

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  Penalisation of drug use had not prevented the availability of illicit drugs.

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  There was an increase in the levels of drug use within the country.

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  The social costs of illicit drugs increased significantly.

There is no doubt as a result of the analysis of the impact of the introduction of penalties for possession of drugs, the Czech Republic formally decriminalised possession of illegal drugs in 2010. Following the passage of legislation and a new directive issued by interim Prime Minister Jan Fischer in late 2009, Czech police and prosecutors are now instructed to charge individuals possessing up to 15 grams cannabis, one gram cocaine, 1.5 grams heroin, four ecstasy tablets, or 40 pieces of hallucinogenic mushrooms, with an administrative offence and not a criminal charge.

Other areas of policy addressed at the meeting included an economic analysis of heroin assisted treatment and the development of cannabis policies in the USA.

The House of Lords meeting gained a huge amount of media coverage – this is largely attributed to the speech by Baroness Maningham Buller, former head of MI5, who called for an open debate on decriminalisation of drug possession and possible consideration of a regulated cannabis market.

This meeting is another example of how drug policy is being increasingly viewed as a legitimate debate amongst some politicians and policymakers. Yet, it is interesting to note that despite the high-profile nature of some of attendees there was no representative from the UK Government.

Home Affairs Select Committee enquiry into drugs

Only weeks after the conclusion of the House of Lords meeting, the Home Affairs Select Committee (HASC) announced its enquiry into drug policy. The remit of the enquiry is wide and the Committee has used the report of the Global Commission on Drug Policy to frame the debate, asking “the extent to which the Government’s 2010 drug strategy is a ‘fiscally responsible policy with strategies grounded in science, health, security and human rights’ in line with the recent recommendation by the Global Commission on Drug Policy”.

The Committee will consider the effectiveness of the UK’s 2010 Drug Strategy and is seeking evidence on the following:

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  The criteria used by the Government to measure the efficacy of its drug policies.

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  The independence and quality of expert advice which is being given to the government.

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  Whether drug-related policing and expenditure is likely to decrease in line with police budgets and what impact this may have.

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  The cost effectiveness of different policies to reduce drug usage.

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  The extent to which public health considerations should play a leading role in developing drugs policy.

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  The relationship between drug and alcohol abuse.

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  The comparative harm and cost of legal and illegal drugs.

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  The impact of the transfer of functions of the National Treatment Agency for Substance Misuse to Public Health England and how this will affect the provision of treatment.

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  The availability of “legal highs” and the challenges associated with adapting the legal framework to deal with new substances.

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  The links between drugs, organised crime and terrorism.

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  Whether the UK is supporting its global partners effectively and what changes may occur with the introduction of the national crime agency.

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  Whether detailed consideration ought to be given to alternative ways of tackling the drugs dilemma, as recommended by the Select Committee in 2002 (The government’s drugs policy: is it working?, HC 318, 2001-2002) and the Justice Committee’s 2010 Report on justice reinvestment (Cutting crime: the case for justice reinvestment, HC 94, 2009-2010).

Taken from the terms of the enquiry: www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news/drugs-call-for-ev/

Calls for evidence close on the 10 January 2012, more information can be found at: www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/

Professor Harrington’s review of the work capability assessment

The work capability assessment (WCA) is the criteria which are used to determine whether someone is considered “capable of work”. The current assessment is made up of ten physical health and seven mental health descriptors and those claiming employment and support allowance, which is essentially benefit for those unable to work, have to meet a minimum of 15 points in order to qualify for the benefit.

Claimants who use drugs problematically have often failed the assessment because their conditions do not neatly into the descriptors. Release has appealed many of these decisions and we have seen them successfully overturned at tribunal level. For a long time policy makers have ignored the experiences and needs of this client group, preferring to advocate a get tough approach. However, it appears things are changing at the Department of Work and Pensions (DWP).

The Welfare Reform Act 2007 commits the Secretary of State for Work and Pensions to undertake a yearly review of the WCA for the first five years of its implementation. Professor Harrington, an academic specialising in occupational health, has been tasked with this job for the last two years. He has just published his second annual report and has identified that the DWP and Atos (the company tasked with undertaking the assessments) must do more to understand how PDU can impact on a person’s ability to function.

It is important that the needs of this specific group of people are recognised within the benefit assessment process, as often this is a group that is highly stigmatised. Harrington recognised this and recommended that “there is a need to ensure that both Atos and DWP operations staff have the most up-to-date knowledge available to them about the challenges PDUs may face in finding and sustaining employment” (Harrington, 2011).

The Guardian study (Ball et al., 2011) shows disproportionate sentencing for those from BME communities

The Guardian recently undertook an analysis of more than one million Court records; their results showed that those from black and Asian backgrounds received a harsher sentence than their white counterparts.

In respect of drug offences those of black ethnicity were 27 per cent more likely to be sentenced for drugs possession. Asian offenders were 41 per cent more likely to receive a custodial sentence for a drug offence than their white counterparts. This is despite the fact that the British Crime Survey shows that drug use is higher amongst the white population than the non-white population (Smith and Flatley, 2011). Furthermore, studies of prisoners have shown that there is no incidence of higher levels of drug dealing amongst people from BME communities.

This study builds on Professor Stevens (2010) research that showed that black people were 9.2 times more likely to be stopped and searched for drug offences; 6.1 times more likely to be arrested and 11.4 times more likely to go to prison.

It is this kind of evidence that needs to be put before the HASC to demonstrate that not only are the drug laws failing but that they cause significant harm to certain sections of society.

Court of Appeal decision in steroids case

Steroids are controlled as a Class C substance under the Misuse of Drugs Act 1971. They are scheduled as a 4(2) drug under the Misuse of Drugs Regulations 2001. This means that personal possession and importation of the drug is legal as long as it is “contained in a medicinal product”.

The Court of Appeal’s decision in R v. Foster[1] has provided some clarification of what the Court considers to be a “medicinal product”. The defendant in that case was caught in possession of stanozolol, a body building steroid – the product was labelled “no bull”. “No Bull” is a reference to the name of a publication that promotes the use of steroids for body building purposes.

The defendant tried to argue that whilst the drug may have been repackaged for use as a body building supplement, it would have been at one time a medicinal product. The lower court in the case directed the jury that by arguing this the defendant had acquired the evidential burden and must prove that the providence of the drug was indeed that of a medicinal product. Clearly, this would have been impossible for the defence to prove. At appeal the Court confirmed the direction of the lower court.

In practice, this means that only those who are in procession of steroids which are considered to be a “medicinal product”, that is it has not been adapted since being shipped from the pharmaceutical company, or who can prove the substance was at one point a “medicinal product” will not fall foul of the law. Clearly, the second scenario will be extremely difficult for most to prove.

Niamh EastwoodHead of Legal Services, Release, UK

Note

1. [2010] EWCA Crim 2247.