Reclassification: all smoke and mirrors?
The proposal to reclassify cannabis from Class B to Class C comes a step closer with the publication of the ACPO guidance to police on how to process cannabis-related offences.
In reality, the proposals from ACPO are a mixed blessing. On the one hand, the number of people put before the courts (approximately 80,000 per year) for cannabis offences will undoubtedly be reduced. Less prosecutions, less criminal records, and less resultant long term consequences: these are welcome and long overdue developments.
On the other hand, there are serious and substantial flaws within the way the cannabis reclassification has been handled and these are reflected in the ACPO guidance. Unfortunately, ACPO has not seen fit to place the guidance on their website, and it has yet to appear on the Home Office Website. We are therefore relying on information from the media to understand what is in the guidance. A selection of links is included at the end of the article.
The draft legislation currently passing through Parliament makes possession of Class C drugs an arrestable offence. There is nothing in law to shape or restrict under what circumstances this power of arrest should be utilised. This has been left to the guidance prepared by ACPO.
In an ideal world, the Home Secretary would have had the courage to simply reclassify cannabis, and possession of it would have ceased to be arrestable offence. Instead, under pressure from senior police officers, Blunkett appears to have acquiesced to a compromise that sees cannabis reclassified but leaves power of arrest wholly at discretion of the police.
The guidance produced by ACPO does state that there should be a "presumption against arrest" for possession of cannabis, unless the possession is aggravated by one of a number of factors:
· Smoking cannabis in public:
· Repeat offenders: Where an officer is aware of a person repeatedly dealt with for possession of cannabis, he or she may arrest him or her.
· Local policing problem: Where a fear of public disorder is associated with cannabis use, the police may arrest rather than warn.
· Young people: Those aged 17 and under will be dealt with under the Crime and Disorder Act 1998, and not the guidelines - they will be arrested.
· Adults with cannabis inside or near schools or premises used by young people
However, these "aggravated" situations are solely guidance and the decision whether or not to arrest is solely at the discretion of the police officer.
The net outcome of the ACPO guidance is a regional lottery that means different police forces can choose to adhere to - or disregard the guidance as they see fit. Further, individual officers can choose to arrest or confiscate and caution at their discretion. Such an approach is wholly inconsistent. The risk is that certain groups in society - young people, especially from black and other ethnic groups - will be disproportionately arrested. Others will be happy recipients of a confiscation and a caution.
Such an approach leaves too much discretion in the hands of the police. Even though an individual may feel that they have been treated unfairly - that they should have simply received a warning, there is no legal recourse available to them. This is the problem when guidance is used in place of robust legal protection.
Juveniles remain especially disadvantaged by the proposed legislative changes, Thanks to confusing messages from the media and from Government, many young people already believe that cannabis has been reclassified and effectively depenalised,. Few are aware that post-reclassification, they will still be arrested and, unlike older users, will not simply receive an informal warning, Instead, depending on previous offending histories, they will end up before Youth Offending Teams or before the courts, and liable to receive criminal records.
As with other recent changes to drugs legislation the Government has taken a momentous step - in this case to reclassify cannabis. But as with changes to Section 8 and to paraphernalia legislation the Government has then wavered in their resolve and turned the changes into a poor, misguided compromise that will cause confusion and inconsistency.
15 September 2003
Paraphernalia Legislation- Welcome changes marred by restrictive drafting:
The Government has amended the legislation relating to drugs paraphernalia. The changes increase the range of equipment that can be given out by drugs workers and allied professionals. The legislation ameliorates the situation created by Section 9a of the Misuse of Drugs Act 1971, which made it unlawful to distribute equipment other than hypodermic syringes and needles for the administration of controlled drugs unlawfully held.
The changes to the legislation are contained in Statutory Instrument Number 1653, and follow recommendations made by the Police Foundation review and the ACMD. It also follows extensive lobbying by harm reduction groups including The Exchange, UKHRA, Lifeline and others.
The changes and their ramifications are considered in detail in the revised KFx publication "Injecting Equipment And Sharps Bins - Legal and Practice Issues (September 2003.)" The key changes are that certain professionals can distribute certain equipment as detailed below:
Clearly, there is much to welcome here. The Government has recognized that the legislation impeded effective harm reduction work. Further, it recognizes that it is unacceptable that workers should be obliged to work on the wrong side of the law, even if prosecution is unlikely. The various groups and individuals who have lobbied, provided the evidence base and stuck their necks out to achieve this change deserve praise for facilitating this change.
However, as with many other recent changes or developments within the drugs field, the amendments to the paraphernalia legislation have been marred by an overweening desire to maintain 'control' on the part of Government. This tendency has been apparent through the proposals to amend Section 8(d) of the MDA, the reclassification of cannabis, and now the present example. In each case, rather than choose a simple revision or rescinding of the relevant legislation, the Government has chosen a response that on the one hand changes or relaxes the legislation but which simultaneously introduces new restrictions and ambiguities.
The revisions to the paraphernalia legislation are a case in point. Rather than removing the existing restrictions entirely, the amendment makes provision for a handful of additional items to be made lawful for distribution by a limited range of professionals.
The outcome of this is an inconsistent piece of legislation, which results in the following:
· It is lawful for doctors, vets, pharmacists and others undertaking "lawful" drugs treatment work to give out specified paraphernalia. However peer supply of this paraphernalia remains illegal. So on the one hand a drugs worker commits no offence by giving citric acid to an injector but the injector would commit an offence if they passed some of that citric on to a partner. To compound this confusion it is not illegal for a peer to distribute on needles and syringes to peers, but it is illegal for them to pass on other paraphernalia such as citric or utensils.
· The list of items that can be distributed is at some points inclusive and at other points exclusive. The legislation specifies that it is now lawful to distribute citric acid. However, it remains illegal to distribute other acidifiers such as ascorbic acid.
· Conversely, the list of 'utensils for preparation' designated in the legislation gives a few examples but is not an exhaustive list. It mentions 'spoons, bowl, etc,' but this does not exclude other equipment being distributed. However, by specifying utensils for 'preparation' this would appear to mean that the distribution of items for consumption (other than syringes and needles) remains illegal. This means that the distribution of foil, pipes etc remains illegal.
· The Government has not seen fit to amend the Medicines Act, and so water for injection remains a prescription only medicine. This impedes the ability of some agencies, especially those working outside the NHS, to secure satisfactory arrangements for its legitimate distribution.
The paraphernalia legislation, like much of the Misuse of Drugs Act 1971, has become a hindrance to harm reduction work whilst having a diminishing benefit in terms of law enforcement. Across the country, innumerable shops and market stall sell drug paraphernalia with virtual impunity. The only bodies that are substantially impeded by the legislation are those seeking to undertake harm reduction work.
In reality, the paraphernalia legislation has never been an effective piece of legislation and is routinely flouted. But rather than accept this and rescind the legislation, the Government has instead tinkered with it, as it has tried to tinker with Section 8 of the Act, and with cannabis reclassification.
The resultant legislation continues to restrict practice, and throws up new ambiguities. It is unclear exactly who it applies to. The Drugs Legislation Enforcement Unit within the Home Office is unclear itself as to who the legislation applies too. They intend that it should extent to all parties engaged in drugs work, even if not directly employed as drugs workers. So it is intended that the legislation should also apply to housing workers, police or others engaged in drug treatment initiatives. However, the DLEU also acknowledge that this is not explicit within the legislation and the exact interpretation of bodies authorized to distribute equipment under the legislation would need to be decided by a court. Similarly, the DLEU were not in a position to determine the scope of the term 'utensils,' and this too would be open for interpretation by a court..
In further worrying comments since the amendment was passed, it has become apparent through discussions on the UKHRA board, that serious concerns are being raised regarding the resources available to ensure adequate distribution of equipment. Some commentators have noted that distribution of equipment is hampered less by law than by fiscal concerns.
Unless the relaxation of the law is matched by additional ring-fenced funds to purchase equipment and ensure that it is distributed effectively alongside informed harm-reduction information, then the changes to the law will remain a cosmetic exercise.
While the changes to the paraphernalia legislation are to be welcomed, and represent a step on the incremental process of legislative change, this welcome is tempered by unhappiness that the changes remain restrictive, in terms both of the equipment and the groups covered. It enfranchises professionals while excluding users themselves. It allows for some equipment but forbids others. And neither it nor the accompanying guidance places any onus on services or those commissioning them to ensure that this extended provision is made available across the UK.
The changes to the legislation are contained in Statutory Instrument Number 1653, and follow recommendations made by the Police Foundation review and the ACMD. It also follows extensive lobbying by harm reduction groups including The Exchange, UKHRA, Lifeline and others.
The changes and their ramifications are considered in detail in the revised KFx publication "Injecting Equipment And Sharps Bins - Legal and Practice Issues (September 2003.)" The key changes are that certain professionals can distribute certain equipment as detailed below:
Clearly, there is much to welcome here. The Government has recognized that the legislation impeded effective harm reduction work. Further, it recognizes that it is unacceptable that workers should be obliged to work on the wrong side of the law, even if prosecution is unlikely. The various groups and individuals who have lobbied, provided the evidence base and stuck their necks out to achieve this change deserve praise for facilitating this change.
However, as with many other recent changes or developments within the drugs field, the amendments to the paraphernalia legislation have been marred by an overweening desire to maintain 'control' on the part of Government. This tendency has been apparent through the proposals to amend Section 8(d) of the MDA, the reclassification of cannabis, and now the present example. In each case, rather than choose a simple revision or rescinding of the relevant legislation, the Government has chosen a response that on the one hand changes or relaxes the legislation but which simultaneously introduces new restrictions and ambiguities.
The revisions to the paraphernalia legislation are a case in point. Rather than removing the existing restrictions entirely, the amendment makes provision for a handful of additional items to be made lawful for distribution by a limited range of professionals.
The outcome of this is an inconsistent piece of legislation, which results in the following:
· It is lawful for doctors, vets, pharmacists and others undertaking "lawful" drugs treatment work to give out specified paraphernalia. However peer supply of this paraphernalia remains illegal. So on the one hand a drugs worker commits no offence by giving citric acid to an injector but the injector would commit an offence if they passed some of that citric on to a partner. To compound this confusion it is not illegal for a peer to distribute on needles and syringes to peers, but it is illegal for them to pass on other paraphernalia such as citric or utensils.
· The list of items that can be distributed is at some points inclusive and at other points exclusive. The legislation specifies that it is now lawful to distribute citric acid. However, it remains illegal to distribute other acidifiers such as ascorbic acid.
· Conversely, the list of 'utensils for preparation' designated in the legislation gives a few examples but is not an exhaustive list. It mentions 'spoons, bowl, etc,' but this does not exclude other equipment being distributed. However, by specifying utensils for 'preparation' this would appear to mean that the distribution of items for consumption (other than syringes and needles) remains illegal. This means that the distribution of foil, pipes etc remains illegal.
· The Government has not seen fit to amend the Medicines Act, and so water for injection remains a prescription only medicine. This impedes the ability of some agencies, especially those working outside the NHS, to secure satisfactory arrangements for its legitimate distribution.
The paraphernalia legislation, like much of the Misuse of Drugs Act 1971, has become a hindrance to harm reduction work whilst having a diminishing benefit in terms of law enforcement. Across the country, innumerable shops and market stall sell drug paraphernalia with virtual impunity. The only bodies that are substantially impeded by the legislation are those seeking to undertake harm reduction work.
In reality, the paraphernalia legislation has never been an effective piece of legislation and is routinely flouted. But rather than accept this and rescind the legislation, the Government has instead tinkered with it, as it has tried to tinker with Section 8 of the Act, and with cannabis reclassification.
The resultant legislation continues to restrict practice, and throws up new ambiguities. It is unclear exactly who it applies to. The Drugs Legislation Enforcement Unit within the Home Office is unclear itself as to who the legislation applies too. They intend that it should extent to all parties engaged in drugs work, even if not directly employed as drugs workers. So it is intended that the legislation should also apply to housing workers, police or others engaged in drug treatment initiatives. However, the DLEU also acknowledge that this is not explicit within the legislation and the exact interpretation of bodies authorized to distribute equipment under the legislation would need to be decided by a court. Similarly, the DLEU were not in a position to determine the scope of the term 'utensils,' and this too would be open for interpretation by a court..
In further worrying comments since the amendment was passed, it has become apparent through discussions on the UKHRA board, that serious concerns are being raised regarding the resources available to ensure adequate distribution of equipment. Some commentators have noted that distribution of equipment is hampered less by law than by fiscal concerns.
Unless the relaxation of the law is matched by additional ring-fenced funds to purchase equipment and ensure that it is distributed effectively alongside informed harm-reduction information, then the changes to the law will remain a cosmetic exercise.
While the changes to the paraphernalia legislation are to be welcomed, and represent a step on the incremental process of legislative change, this welcome is tempered by unhappiness that the changes remain restrictive, in terms both of the equipment and the groups covered. It enfranchises professionals while excluding users themselves. It allows for some equipment but forbids others. And neither it nor the accompanying guidance places any onus on services or those commissioning them to ensure that this extended provision is made available across the UK.
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