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.

5.12.05

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:
http://www.defra.gov.uk/environment/
localenv/litter/pdf/drugrelatedlitter.pdf