15 September 2003

ACPO and Cannabis

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.