Legal Eye

Citation

(2012), "Legal Eye", Drugs and Alcohol Today, Vol. 12 No. 4. https://doi.org/10.1108/dat.2012.54412daa.003

Legal Eye

Article Type: Legal Eye From: Drugs and Alcohol Today, Volume 12, Issue 4

Release launches a new report – a quiet revolution: drug decriminalisation practices across the globe

“A quiet revolution: drug decriminalisation practices across the globe” (Rosmarin and Eastwood, 2012) was launched by Release in early July 2012. It highlights countries around the world that have adopted some form of decriminalisation in respect of drug use and/or possession. The definition that has been applied to decriminalisation in the report is the removal of criminal sanctions for drug possession or use offences, with the optional application of civil penalties, such as a fine or referral to treatment, or a decision not to take any formal action. The report was downloaded 50,000 times in the first three weeks of the launch date.

The report considers whether, based on the existing evidence and analysis, decriminalisation has led to an increase in drug use. Overwhelming, in those countries that have adopted effective models, the answer was no, it did not. The question that then arises is why pursue a harsh and costly criminal approach to drug possession offences. This is the basic principle that Release is using to advocate for reform of the UK’s current drug policy.

The report itself looks at over 20 countries or jurisdictions around the world that have adopted decriminalisation of either all drugs, or just cannabis, for personal use. The range of countries that pursue this approach are disparate and include Germany, Colombia, Czech Republic, Portugal, Poland as well as states in the USA and Australia. As well as discussing the impact on prevalence rates a number of other interesting pieces of research were highlighted:

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  In Australia researchers compared the impact of criminalising someone for a cannabis offence (Western Australia) against individuals who had received a non-criminal response (South Australia). They found that those who were criminalised were more likely to suffer negative employment, relationship, and accommodation consequences and were more likely to come into further contact with the criminal justice system.

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  Paraguay decriminalised possession of all drugs in 1988. It has the lowest prevalence for heroin, is tied for the lowest prevalence of cocaine use with Ecuador and Suriname, and is in the lower third prevalence of cannabis use in South America.

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  In the USA, 14 states have decriminalised cannabis possession. Following decriminalisation in California, the total cost of cannabis enforcement declined from $17 million in the first half of 1975 to $4.4 million in the first half of 1976. This demonstrates the possibility of strong economic arguments for reform.

Those countries that have pursued decriminalisation along with significant investment in harm reduction and treatment interventions, such as opiate substitute treatment (“OST”), had some of the best outcomes. The most notable amongst these were Portugal and The Netherlands.

The report also included countries that had adopted decriminalisation in name only, where the threshold amounts were so low that the policy was practically unenforceable. Included in this group was Russia, where since 2006 the threshold amounts determining possession for personal use have been 6 g of cannabis, 0.5 g of heroin and 0.5 g of cocaine. The report makes clear that Russia’s drug policies have been an unmitigated disaster highlighting punitive laws in relation to the availability of OST and needle exchange. This approach has led to an HIV epidemic amongst people who inject drugs and has led to significant human rights abuses. Russia was included to demonstrate that the adoption of decriminalisation has to be properly implemented in order to achieve it aims and that a successful strategy, one that reduces harms, has to be coupled with a public health and human rights approach. Russia has failed on all these fronts.

The most compelling argument for the adoption of decriminalisation is that it does not impact in any statistically significant way on rates of drug use within a jurisdiction, and that it ends the needless criminalisation of hundreds of thousands (probably millions) of people globally each year. Criminalisation of an individual can impact on them for the rest of their lives – affecting employment, education and other life chances. It stigmatises people and can push them further into the margins of society. In some parts of the world, it can lead to imprisonment for lengthy periods. Decriminalisation is the first step in reform of our drug laws, it is a pragmatic and evidence-based approach which reduces the harms to individuals and communities and can lead to significant cost benefits for the State.

Uruguay considering government regulation of cannabis

On 20 June 2012, President José Mujica announced that Uruguay intends to create a cannabis market which would be controlled and regulated by the state (Walsh and Jelsma, 2012). This would be the first time a country, explicitly, through a legal framework would create a legitimate cannabis market. Other countries such as The Netherlands and Spain only have “tolerated” markets and in US states where medicinal cannabis is legally permitted, it is still a federal offence.

Difficulties will clearly arise in relation to Uruguay’s obligations under the three UN treaties which support the current system of drug control. It may be the case that Uruguay will follow Bolivia in leaving the Conventions and then re-joining with a reservation in relation to cannabis, as Bolivia is currently doing in relation to the coca leave.

With debate on drug control in Latin American becoming more prominent, Uruguay’s decision to regulate cannabis could have a significant impact on other countries in the region.

Developments in sentencing since the introduction of the new Sentencing Council guidelines

The “Sentencing Council: drug offences definitive guideline” (hereinafter “the guidelines”) came into force on 27 February 2012 (Sentencing Council, 2012). Since then there have been a number of Court of Appeal decisions highlighting how the guidelines should be interpreted.

The most significant to date is A-G Ref No.15-17 of 2012 (Lewis, Wijtvliet, and Vriezen) [2012] EWCA Crim 1414, this case involved both appeals by defendants who argued that they had been sentenced too harshly for their drug offences and that their sentences were a departure from the guidelines, and an application for leave to refer “unduly lenient sentences” imposed by the Crown Court.

The Court of Appeal, in its consideration of the cases before them and the guidelines more generally, held that the Sentencing Council’s guidelines had the aim of ensuring that sentencing remained at similar levels to prior the new guidance coming into force or should result in harsher sentencing if the facts of the case deemed it necessary. The Court stated that the only exception to this was cases involving “mules”, where the Council had expressly reduced the sentencing starting point. The Court reminded counsel that the guidelines were “not a statute requiring strict statutory construction”.

For clarification the guidelines take an eight step approach. The first step is to determine the “seriousness” of the offence, this is in line with the concept of offence seriousness being one of the overarching principles of sentencing (Section 143(1), Criminal Justice Act, 2003). Seriousness in this context is determined by culpability and harm (harm is determined by the quantity of drugs involved). The Sentencing Council identified that the culpability of the offender should be decided by the role they play within the prohibited activity. In drafting the guidelines the Council identified three categories of offenders: leading role; significant role and lesser role. Those categorised within a leading role would be involved in “directing or organising buying and selling on a commercial scale” or have “an expectation of financial gain” (there are a number of other descriptors that describe a leading role). Those in the lesser role would be those who supplied for social purposes or who had “little or no influence on those above in the supply chain” (again other descriptors are contained within this role).

In the case of one of the defendants’ the issue of role related to the sentencing of importation cases. Arguments were submitted that where a case of importation of a controlled substance involved quantities significantly above that identified by the Sentencing Council’s guidelines, the “role” of the defendant limited the sentencing range of the judiciary despite the extremely large quantity of drugs involved (in the case before the Court the defendant has been involved in the importation of 99.67 kg of heroin and 5.95 kg of cocaine). The point being raised was that when a defendant is considered to fall within a “lesser role”, then regardless of the quantity of drug involved (harm), the Court cannot depart of the guidelines. The Court of Appeal did not support this argument, stating that “the Councils clear intention was certainly to maintain if not increase the level of sentences for drug offences…[and] the Guidelines does not provide a series of boxes into which every offender and every offence must be squeezed with no exceptions permitted”. Essentially, the Court’s view was that where a quantity of drugs were imported, which were well outside the largest category of harm, then it should not be the case that the judiciary is limited in its ability to sentence appropriately.

In the same case, the Court of Appeal also considered sentencing in relation to methylethylcathinone as the guidelines did not state how such drugs should be categorised in terms of quantity. The only Class B drugs explicitly referred to in terms of quantity amounts are cannabis and amphetamine. The Court stated that the quantity of methylethylcathinone in the case before them should be assessed against quantities related to cannabis, as this would be “most favourable to the defendant”. However, the Court did leave this position open to challenge if evidence showed that their approach was wrong.

Change in the scheduling law impacts on steroids

The Government has amended regulation 4(2) of the Misuse of Drugs Regulations 2001 (SI 2012 No. 973) which details in what circumstances a Schedule 4(2) drug can be possessed, imported or exported. The majority of drugs within this Schedule are steroids, and prior to the amendment a person could lawfully possess, import or export these drugs as long as they were in a “medicinal product” and for personal use.

The new legal changes to Schedule 4(2) will continue to allow a person to possess a drug within this schedule as long as it is for personal use, the requirement for it to be in the form of a “medicinal product” no longer applies. However, the significant change is that a person may only import or export this group of drugs if for personal use and that they personally carry out this activity. This could have a significant impact on the growing internet sales of steroids.

Niamh EastwoodHead of Legal Services, Release, UK.