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?