05 December 2005

DEFRA, Drug Litter and Section 8

15.12.05 Following an intervention from KFx, DEFRA has agreed to reword the relevant section of the report. Remaining copies of the document are to be pupled, and the document henceforth will only be available as a download.


DEFRA produced a generally superb document about Drug Litter, but then messed it up by mis-stating the legal situation regarding Section 8. KFx had contributed to an early draft of the report, but had not seen the final version before it went to print. We welcome lots of the recomendations of the report, especially its rejection of blue lights and support for public sharps bins. But we have taken issue with the Section 8 part. We wrote to DEFRA as follows:
"I recently read a copy of the DEFRA publication; "Tackling Drug Literature - Guidance and Good Practice." I contributed to the preparation of this document and provided some feedback on an early draft in April 2005.

On looking through the final print version (which I wasn' asked to review,) I was suprised and extremely concerned to read the following boxed section on page Seven:
"The Misuse of Drugs Act 1971 and housing services Section 8(d) of the Misuse of Drugs Act 1971 was amended by Section 38 of the Criminal Justice and Police Act 2001 to extend its scope beyond cannabis and opium to all controlled drugs. However, the amendment was never actually brought into force. During the consultation exercise it was clear that professionals working in the treatment and harm reduction sector felt that the amendment might leave them open to prosecution. The Drugs Act 2005 included a repeal of s.38 . The repeal commenced in the summer of 2005. In effect section 8 (d) has remained unaltered.

Providing sharps boxes or needles for users in itself does not constitute 'knowingly allowing' under section 8 (d). If a hostel or day centre is allowing other behaviour that involves use or supply of controlled drugs, then it is possible that prosecution could result. However, supplying needles alone cannot constitute grounds for charges being brought unless it were accompanied by other behaviour involving actual use or supply. Letting users inject un-prescribed drugs on the premises is likely to be considered as 'knowingly allowing' under the terms of this section of the law. However, there is no risk of prosecution from simply providing users with sharps nor from providing opportunities to return them safely."

The first above paragraph is accurate. The second paragraph is however hugely inaccurate and massively misleading. You say "If a hostel or day centre is allowing other behaviour that involves use or supply of controlled drugs, then it is possible that prosecution could result." Certainly, if an organisation were allowing supply, prosecution would be feasible under Section 8(b). If smoking of cannabis or prepared opium were taking place, then prosecution would be feasible under section 8(d). But as section 8(d) ONLY covers cannabis or prepared opium, allowing the USE of other drugs (e.g. tolerating the injection of heroin) is NOT prohibited by section 8.

Had Section 8 been ammended by Section 38, then it would have been illegal to tolerate use of heroin on site. But as this amendment was never enacted and as it has since been repealed, no offence existsof allowing use on site.

So when you say "Letting users inject un-prescribed drugs on the premises is likely to be considered as 'knowingly allowing' under the terms of this section of the law," this is wholly erroneous. "knowing allowing" injecting of heroin is contrary to which section of Section 8? None.

Part of the reason why this error is so worrying and so frustrating is that numerous housing providers routinely exclude drug users from provision for allowing using on site. They do so because they labour under the erroneous belief that if they fail to do so they risk prosecution. The amendment to Section 8 was repealed precisely because the Home Office recognised the good work of housing providers and harm reduction services that worked with ongoing users.
So it is hugey unhelpful when a Government Department publishes material that misrepresents the legal position and creates further confusion.

Clearly, given the scale of this legal error and the prominence that it has been given in the document, some correction is urgently required. I hope to hear from you soon regarding this matter, and ideally reassuring me that the document will be withdrawn while a corrected version is produced. I am sure that you will need to check this with the Home Office and other departments but I would appreciate a rapid response. Due to the seriousness of this error, and the potential ramifications for thousands of housing providers, I'm hoping for rapid action and trust that a formal complaint to DEFRA will not be required at this stage."

As of 5th December, DEFRA have done no more than acknowledge concerns and we will will update as and when there are further developments.

The DRUG LITTER report is at:

Threshold Quantities - Time to say Enough (again.)

In December last year, the Home Office published lists of proposed "Threshold Quantities." These were the amounts above which a Judge or Jury were required to assume that a person possessed the drug with the intent to supply it, as stated in the Drugs Act 2005.

Section 2 of the Drugs Act 2005 stipulates that in any proceedings for an offence under sectionc5(3) of the Misuse of Drugs Act 1971 (possession of a controlled drug with intent to supply it) if it is proved that the accused had an amount of a controlled drug in his possession which is not less that the prescribed amount, the court or jury must assume that he had the drug in his
possession with the intent to supply it.

When the "Threshold Quantities" list was originally drafted, the levels set were very high - and to an extent (especially in relation to cannabis) probably meaninglessly so. While a small number of heavy users and bulk-buyers would have been caught out by the new levels, on the whole they were legally objectionable but practiclly not a huge issue.

More worrying was the police and media mis-representation of the figures. They were presented by some sections of the media as "dealers charter." There was a wide-spread misaprehension that figures below the "Threshold Levels" would be considered solely as personal possession meaning that dealers would be immune from prosecution.

This of course was not the case. Below threshold levels, users could be charged with possession or supply as the situation and evidence suggested. The change was that once the person exceeded the threshold, it would generally result in a supply charge unless there was evidence to refute such a charge.

Under stinging attack from the police and sections of the media, the Home Office released its new proposed Threshold Levels. With the Home Office under sustained and fierce criticism related to illegal immigrants and prisoner releases, it was never likely that the Home Office would take a considered view. And the new figures exemplify a right wing Home Office drawing up knee-jerk legislation with scant regard for evidence on consultation.

The Guardian reported the following levels: http://www.guardian.co.uk/drugs/Story/0,,1791915,00.html


Ministers propose 5g, or less than 1/5th of ounce - enough for 10-20 joints. This compares with the original proposal of 4ozs or 133g of resin, and 500g or 20 bags of grass. The ACMD has replied that the limit should be set at 28g.


Ministers propose 1.5g (equal to 5 tablets, costing £15), compared with an original proposal for 10 tablets. The Home Office says it would be more straightforward to do it by weight than number of tablets, as the drug also comes in powder form. The ACMD said the limit should be 2g or 20 tablets, as that was two days' supply.


Ministers have kept the proposed threshold at 14g but dropped an alternative of 10 x 1g wraps, saying dealers would simply change the size of deals to avoid going above the threshold. The ACMD said the threshold should be 10g, and questioned the rationale for a threshold higher than other drugs.

Heroin, cocaine and crack cocaine

Ministers are "minded to set" a threshold of 2g for possession, compared with the original proposal of 7g. The proposed number of individual wraps - a maximum of 10 in each case - has also been dropped for these class A drugs.

If these figures are true, and we have to await publication of the figures by the Home Office, then they have massive implications for many drugs users, both recreational and dependent.

Obviously, the figures with cannabis are going to attract the most attention; but the figures for other drugs - especially heroin, are in practice worryingly low. Many cannabis users will have been in possession of a quarter of an ounce at some time; such a quantity would tip the balance for a court, and would, if passed, automatically considered a supply matter.

Likewise, a heroin user with a gram a day habit would be on the wrong side of the law if they picked up enough for a weekend on a Friday - and was stopped with three-grammes worth.

Why is this so important?

In part, because by creating this arbitary cut off point, more people will get sent to prison for longer. The penalty for supplying cannabis is a maximum of fourteen years. While small scale supply won't attract such a large penalty, it is likely that those found guilty of supply of even small amounts are going to get custodial sentences. So being in possession of a quarter of an ounce could land you in prison - even if you never intended to supply.

In practice the situation is worse still; found in possession of a quarter ounce near a school - then this would be considered evidence of 'aggravated supply' and so the court would be required to consider a larger sentence.

Such cases would be 'triable either way' so one could elect to go to Crown and plead your case and mitigation. But lose your case at Crown and the risk is a much larger slice of that maximum sentence.

What happens next?

The proposed Threshold Quantities will be put before parliament and voted on. If they are passed, then the new Threshold Quantities will come in to force.

How many people will be affected?

The Home Office's Regulatory Impact Assessment estimated that between 150 and 598 additional people would be convicted of intent to supply under the new Legislation. http://www.homeoffice.gov.uk/documents/ria-drugs-bill-1204?view=Binary

These figures are UTTERLY speculative as, at the time of drafting, the Threshold Limits had not been established. So it is simply not possible to guess how many people would have been affected by the new Thresholds. When MPs vote on the Thresholds, they should know that they do so without a clear model of how many more people will go to prison.

We have asked the Home Office, under the Freedom of Information Act, how many people were arrested in the last year for possession of cannabis and the amounts of cannabis involved in each case. This would give a good estimate of how many people will be affected by the revised legislation. We fear that this information will not be forthcoming.

In 2003 there were 82,060 cannabis offences in the UK recorded. This was prior ro reclassification. 70% of these offenders were dealt with as possession offences. This means that of a total of 82,060 cannabis offences, 57,442 were for possession. If only 5% of these were convicted under the new Threshold Levels, some 2872 people would be convicted - far higher than the Government's lower estimate under the RIA.

Self reporting to the IDMU paints an even more worrying picture. http://www.idmu.co.uk/purchaseprices.htm Using their data as a rough gauge, at least a quarter of people reported purchasing cannabis in quarter-ounce deals. This would put these users above the threshold. Using this 25% figure as a benchmark, and applying it to the 82,060 recorded cannabis offences in 2003, this means that an additional 20,000 people per year would be convicted of supply under the new threshold.

How can this process be challenged?

The process is going to be hard to challenge now; the Home Office consulted on the Threshold Quantities and it is likely that they received a small number of responses, many of which would have pushed for low thresholds. So there are limited ways of challenging the Thresholds.

1) Use the FIA: write to your local police force asking the number of people arrested for possession of cannabis, heroin, or other drugs. Ask for the quantities found.

You could use the following form of words:

"I am requesting the following information under the Freedom of Information Act.

I would like to know:

(a) the total number of people arrested for possession of cannabis in the last year, or the last period for which figures are available.

(b) the number of cases in which the amount of cannabis involved was 5gms or more."

2) Write to your MP. It is essential that your MP is briefed on the problems to do with the Threshold Quantities. They should be asked if they will vote against the Threshold Quantities when they become before Parliament. If you have local figures from requests under the FIA , these can be used to demonstrate how many people would be considered suppliers under the new legislation.

3) Write to the Home Office: they need to be advised of the potential problems with the threshold quantities and encouraged to review the Thresholds. They can be emailed at public.enquiries@homeoffice.gsi.gov.uk

Finally, cut and paste this section, and send it on to everyone else that you think can respond. It is urgent that responses are generated rapidly. If not you, who. If not now, when?

15 October 2005

Welcome changes to paraphernalia legislation:

Thanks to the dogged work of Exchange Supplies and other activists, two problematic areas of the paraphernalia legislation have been amended. On the 12th October, Statutory Instrument SI 2005 (2846) - added ascorbic acid (VitC) to the list of items that it is legal for services to supply.

This follows on from the changes to the legislation regarding Water for Injection which we, lamentably, failed to report at the time. This was done under Statutory Instrument: SI 2005 No.1507 The Medicines for Human Use (Prescribing) (Miscellaneous Amendments) Order 2005.

This became law 1st July 2005, and says:

  • "(2) In the table in Part II of Schedule 5 to the POM Order (Exemptions from the restriction on supply), after paragraph 3, insert the following new paragraph -
  • "3A Persons employed or engaged in the provision of lawful drug treatment services.
  • 3A Ampoules of sterile water for injection containing not more than 2 mg of sterile water.
  • 3A The supply shall be only in the course of provision of lawful drug treatment services."

Effectively, this makes the distributionof ampoules of water for injection legal, subject to the above size restrictions. Only a churl would point out that at present there are no ampoules of

Water for Injection of 2mls or less available in the UK, though Exchange Supplies are endeavouring to get their sterile water thus licensed.

Congratulations are in order to Jon Dericott and Andrew Preston for their dogged determination in achieving these legislative changes, and all those who supported their endeavours.

For more details go to: http://www.exchangesupplies.org/whatsnew.html

10 October 2005

Why is that Farmer jumping up and down?

In October 2005, we wrote to the Home Office regarding Magic Mushrooms, seeking clarification as to what rules would be applied where mushrooms were growing on land. There had been some confusion about this.

The rather sweet response from Tawa Bishi makes all things clear.
Thanks to the wording of "Misuse of Drugs (amendment) (No. 2) Regulations 2005, the prohibition against mushrooms does not apply if the fungus "is growing uncultivated." So if the mushroom is merely growing and the landowner does nothing to promote this process, then the presence of the mushroom is not illegal.

Further, Tawa Bishi assures us that "there is no obligation on landowners to remove psilocybe mushrooms which are growing uncultivated on their land."

We also asked how mushrooms should be destroyed. An ever-helpful Tawa explains:
"There is no set method of destruction...The mushrooms can be burnt, stamped upon and crushed, or allowed to decompose."

You couldn't make it up, really!

02 September 2005

No ID - No Methadone? - Proposed changes to Drugs Regulations

The Home Office has launched a public consultation on proposals to make changes to the Misuse of Drugs Regulations. These proposed changes follow on from the Fourth Report of the Shipman Inquiry.

To read the Proposals in full, please go here

The low-key launch of the consultation at the end of July may mean that it escaped the attention of key agencies. We feel that the proposed changes may have some important ramifications for the Drug Treatment and social care field and would urge agencies to respond to the consultation.

The proposed changes are intended to improve the prescribing, audit trail, and safe handling of prescribed controlled drugs. They include proposed changes to the Misuse of Drugs Regulations 2001.

The proposals have been drawn up after consultation with the ACMD and a number of other agencies exclusively drawn from medical disciplines. Unfortunately, this list does not appear to include the National Treatment Agency, Drugscope, Homelesslink nor any other agency primarily concerned with the needs of drug users engaging with treatment providers.

We are concerned that this has meant that some of the proposals could negatively impact on access and adherence to treatment. We are also disappointed that the Home Office has not used this revision as an opportunity to clarify the legal situation relating to the storage of controlled drugs in non-medical settings.

Paragraph 15: Controlled Drug Prescriptions


Prescriptions for controlled drugs to carry a unique identification number so prescriber can be identified

All prescriptions for controlled drugs to carry a patient identifier number (NHS Number) to identify double scripting

Effectively, this proposal represents a return to a "register" of addicts. Within this proposal, all users prescribed controlled drugs will be recorded and identifiable within a central register.

A key concern must relate to homeless and transient patients who do not currently have, or do not know their NHS numbers. The proposals note a need to consider the "obligations on prescribers and dispensers faced with patients who are unable or unwilling to supply their NHS number."

We would go further than this and propose that given the risk of further excluding people who are dependent on drugs from treatment, those engaged in the treatment of drug dependency should be exempted from this requirement.
We would suggest that this exemption should be time-limited as follows:

"Prescribers treating people for dependency on controlled drugs will need to ensure reasonable efforts are taken to ascertain an NHS number. However, in order to ensure access and continuity of treatment, obtaining such a number need not happen prior to commencing treatment but should take place within the first three months of treatment."

Paragraph 22: Dispensing controlled drugs:

Proposal: requirement for dispenser to ask for the name, address and some form of personal identification of people collecting Schedule 2 controlled drugs.

This proposal is mediated by a proposal to ensure that Pharmacists still have discretion to dispense where a person has no form of identification.

We are concerned that this proposal needs more careful attention to ensure that people being treated for drug dependency, especially those who are homeless or transient, are not unfairly treated by this proposal. Many such patients will have no formal documentation to prove identity, and those who are homeless or in temporary accommodation may struggle to prove their address.

In order to facilitate dispensing to such patients, we would propose the following:

Patients attending agencies for drug treatment to be issued with an ID card which includes patient ID number and photograph, which will be an agreed form of identification at local pharmacists. This will be made available at no cost to people attending treatment. Such a system would be extended to patients receiving treatment from GPs within a shared-care scheme.

Paragraph 27: Controlled Drugs in the Community

We have contacted the Home Office on previous occasions requesting clarification of the regulations relating to the storage of prescribed controlled drugs in non-medical settings. It has been our ongoing concern that the storage of prescribed controlled drugs by hostels, day centres and other allied professionals is not robustly legal. We have brought these concerns to the attention of successive Home Secretaries and have been assured that the issue would be addressed when parliamentary time allowed.

We have documented our concerns relating to the current legal position in detail in the KFx guidance document "On Storage." We have appended this to our submission to the Home Office.

In order to enhance the safe handling of controlled drugs in the community we would like to make the following proposals:

" That hostels and day centres be given the authority under the Misuse of Drugs Regulations to store prescribed controlled drugs on behalf of Service Users, and return such drugs to the named patient.
" That while such services should be given this authority, they would not be obliged to store such prescribed drugs for service users or residents.
" Organisations who wish to store controlled drugs would be required to demonstrate that they can operate to agreed standards including:

Storage facilities

Record keeping

Staff references

Joint working with prescribers

The provision would be audited by the Pharmacy Inspectorate who would furnish a Certificate of Compliance, authorising the storage of such controlled drugs.


Whilst it is essential that there are effective strategies in place to monitor the use of prescribed controlled drugs, it is essential that such measures do not have a disproportionately negative impact on patient care.

Where the patients in question are receiving their controlled drugs as part of a package of treatment for drug dependency, it is imperative that access and continuity of treatment is not reduced as a consequence of changes to the Misuse of Drugs Regulations.

We hope that this submission highlights these concerns and that they will receive serious consideration as part of the consultation process.

Kevin Flemen
September 2005

23 April 2005

And here's your new Drugs Act

In the dying days of the Parliament, the Drugs Bill, which was being debated in the Lords, was rushed through the last stages of the 'democratic' process and received Royal Assent, passing on to the Statute Book.

The process was a travesty of democratic process. The Drugs Bill had been widely criticised for its inadequacies. It had been castigated on human rights grounds and the Joint Parliamentary Human Rights Committee was particularly scathing in their criticism. http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/47/4702.htm

The Conservatives were broadly supportive of the legislation. Predictably the primary changes they wanted to see made were tougher sanctions and penalties, and so, given Conservative support and Labour backing, it seemed likely that the Bill would be passed.

As time ran short, the Bill could well have foundered before the dissolution of Parliament, especially if the Lords had done their job and given the bill the scrutiny it deserved.

However, with the sort of backroom deals that typify contemporary politics, the Bill was passed in the so-called 'wash-up' period. The Tories had been keen to see the Drugs Bill ammended to include moving cannabis from Class C back to B. This is something that Charles Clarke is privately keen to see, but publicly would be tantamount to a labour party policy U-turn. In order to stall such a U-turn whilst pacifying the Tories and securing the passage of the Drugs Bill, Clarke agreed to refer the reclassfication of cannabis back to the ACMD and seek their advice on the subject.

This face-saving formula placated the Tories, secured the passage of the Drugs Bill and, possibly, leaves the way forward for Clarke to reclassify cannabis if the ACMD makes such a recomendation.

Much of the Drugs Act 2005 cannot come in to force straight away, as it requires subsequent legislation, guidance or changes to regulations. The following sections will not be instantly available:

Mushrooms containing psilocin: these will all become Class A drugs, whether prepared or not. However, additional guidance or wording is required to ensure that landowners who merely have mushrooms growing on their land are not committing an offence. This clause will not come in to force until such a wording is agreed.

Initial assessments and follow-up assessments: this new power means that the police can require any arrestee who tests positive for Class A drugs to attend an initial assesment and, where required, a follow-up assessment. However, these new developments cannot take place until funding is released to pay for the assessors and these will need to be recruited.

It seems likely that this development will curtail, if not spell the end of arrest referal schemes as they are supplanted by these mandatory assessments.

Given their vocal opposition to the Drugs Bill, we assume that Turning Point will refuse to bid for any of the new contracts to undertake assessment and would not be so hypocritical as to condemn the Bill whilst actually receiving funds to deliver aspects of it.

Presumption of intent to supply: This section will mean that people found in possession of quantities of drugs exceeding the "proscribed amount" will automatically be considered to be intending to supply those drugs. These quantities have yet to be decided and need to be approved by parliament. This section cannot come in to force until then.

The only shiny jewel in all this sewage is that the amendment to Section 8 by Section 38 of the Police and Criminal Justice Act is repealed by the Drugs Act 2005. So a piece of legislation that Charles Clarke saw fit to pass to garner votes in the last election is repealed by a piece of legislation to garner votes in this one...plus ca change.

09 February 2005

When Crackdown goes OTT

Amidst much fanfare and column inches, the Home Office launched Crackdown on 12th January 2005. The Home Office press release said

"Operation Crackdown is being co-ordinated by ACPO and the Home Office. It will involve 32 police forces in England and Wales, focusing on closing drug dens, disrupting local drug markets, seizing illegal firearms and bringing dealers to justice. A key part of the campaign will be working closely with communities."

The Home Office appeared to hope that such a high profile campaign, on the run up to a general election, would provide much needed media coverage and reinforce the impression of a Home Office tough on crime and tough on drugs.

However, we have been hearing worrying tales of excess, especially in the closure of so called "drug dens." The word from the Home Office has clearly been that they expect the Police to use the new powers provided by the Antisocial Behaviour Act to close premises. But in some areas, where crack houses are few and far between, the Police appear to have struggled to find proper drug dens. So increasingly any drug user is finding themselves at risk of a closure order - even if they are not "drug dens." So squats are being emptied using these powers and people who are drug dependent and living with their families are being warned that they may be summarily removed from their properties.

We have received independent information from Wiltshire and from Hackney of such misuse of these powers, and it seems likely that such occurrences are taking place else where.

Drugs and housing advisors concerned about misuse of the powers should advise concerned service users of the following:
the property in question must be associated with Class A drug use AND nuisance or disorder; there must be evidence of both. If the property is not associated with nuisance or disorder it should be possible to challenge an application for a Closure order.

The property MUST be the subject of a properly-issued Closure Notice. If a closure notice has not been served properly, a closure order cannot be issued. Increasingly the police will want to serve a closure notice on an individual; otherwise it will be posted to the house and affixed to a door.

The Closure Notice will specify the Date, Time and Place of the Court Hearing that will determine if a Closure Notice will be issued. You will have to act very quickly.

If the occupier or tenant wished to challenge a closure order they will need to attend court and should get legal representation as soon as possible. It is essential that this is done very rapidly as from the point of Closure Notice, a Closure Order will be sought and issued within 24 hours.

With legal representation, the occupier or tenant should attend court and apply for an adjournment; this should be allow for proper submissions to be prepared and submitted. The court can grant a period of adjournment for up to 14 days.

The occupier and legal team should return to court and provide grounds to challenge the application for a closure order. This could include:
  • demonstration that the property is not associated with Class A drug use. This could be supported by evidence of drugs workers, housing support workers, evidence from drug treatment projects etc
  • evidence that the property is not associated with disorder or nuisance: this could come from supporting evidence from other neighbours, evidence from Housing Support workers, diary to demonstrate that nuisance is caused by others, etc
  • proposals that other approaches will resolve the nuisance or disorder: this include a willingness to attend treatment, agreement to exclude visitors who cause nuisance, or willingness to change behaviour that is causing nuisance.
  • other submissions that support the contention that the issuing of a closure order is not an appropriate response.
If a Property is closed, the person will be homeless. It is ESSENTIAL at this point that they do NOT surrender their tenancy at this point as they may be considered intentionally homeless. They should continue to seek legal advice, and make a decision as to whether they wish to take further action.

They can apply to the court for the Closure Order to be discharged, but would have to demonstrate to the court's satisfaction that the nuisance or disorder would not recur.

Given sufficient legal back-up and a strong case, there may be scope to mount a legal challenge to a closure order, but this will require extensive legal support and resources.

If you are squatting remember, these powers were intended to close properties associated with Class A drug use and serious nuisance. Squatters who are using drugs recreationally and are not causing disorder or serious nuisance should NOT be on the receiving end of such closure orders. It is important that efforts are made to challenge misuse of such powers in the courts.