More Hash Fudge!?

As Jacqui Smith blunders on with her re-reclassification of cannabis we look at how she's managed to end up with a position which fails to meet the expectations of everyone with an interest in cannabis.

On the 7th May 2008, the Home Secretary, Jacquie Smith, acceded to the demands of the tabloid media and reactionary drug prohibitionists such as Talking About Cannabis. Despite recommendations from the Advisory Council on the Misuse of Drugs (ACMD), Smith decided to move cannabis from Class C back to Class B.

Five months later, Jacquie Smith release more details as to proposed policy and policing changes that would accompany this reclassification. These proposals added yet another layer of confusion and fudge to the ongoing mess of cannabis reclassification.

The Home Secretary faced something of a challenge. On the one hand, to satiate the media's demand for action, the decision was made to move cannabis back to Class B. This decision was reached despite the fact that the ACMD, whose opinion had been sought by the Home Office, recommended that cannabis should not be moved back to Class B. It was also despite a documented decline in cannabis use amongst young people, and no new evidence that cannabis was responsible for an increase in mental health problems.

Undaunted by an absence of evidence, she instead drew on various other evidence sources, saying "In reaching my decision, I have also taken into account the views of others, particularly those responsible for enforcing the law, and the public-58 per cent. of whom, according to a survey carried out for the council, favour upgrading cannabis from class C."
http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080507/debtext/80507-0004.htm

The ACMD commissioned a small piece of research to inform it's report. Amongst other things, the research showed how hopelessly confused and ill-informed about cannabis and the law respondents were.

Of those polled, 80% were aware that cannabis was an illegal drug, 4% thought it was legal and 16% "did not know".

Of those who knew that cannabis was illegal, 12% thought it was in Class A, 31% in Class B and 52% in Class C.
[Cannabis: Classification and Public Health: ACMD: 2008: p26]

So, of the sample of a thousand, only some 400 knew the current legal status of cannabis.

When asked about in what class cannabis ought to be,
32% considered that it should be in Class A, 26% Class B and 18% Class C, while 13% stated that they "did not know".

However, when they were asked to consider what penalties ought to be applied for possession, 11% considered seven years' imprisonment (equivalent to Class A), 13% five years (equivalent to Class B) and 41% two years (equivalent to Class C), and 27% considered that there should be no penalty [ibid: p27]

So while the ACMD's public survey did show that the majority thought cannabis should go up in class, the vast majority felt that the penalties should stay the same or go down.

Interestingly these results are the opposite of the Home Office's consultation on drugs which took place prior to the launch of the new Drug Strategy. This was also quoted in the ACMD report, which noted "Of the 639 individuals and organisations responding to these questions, 44% wished cannabis to remain Class C; 19% wished it to become a Class B substance; and 19% wished it to be legalised. One hundred and sixteen respondents were undecided." [ibid: p26]

It's a fine example of the selective use of consultations and research. The Home Office public consultation, which came down against cannabis reclassification, was disregarded, along with the ACMD's recommendation. The small sample of confused respondents which supported the Home Office's opinion is cited to bolster the Government's position.

Jacqui Smith went on to say "My decision takes into account issues such as public perception and the needs and consequences for policing priorities. There is a compelling case for us to act now rather than risk the future health of young people. Where there is a clear and serious problem, but doubt about the potential harm that will be caused, we must err on the side of caution and protect the public. I make no apology for that. I am not prepared to wait and see".
http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080507/debtext/80507-0004.htm

Jacqui Smith goes on in her statement to outline how keen she is to see police enforcement increased, saying "To reflect the more serious status of cannabis as class B, I am clear that a strengthened enforcement approach for possession is required."

Five months later, the Home Office issued a Press Release "Next steps for tougher action on cannabis" http://nds.coi.gov.uk/Content/Detail.asp?ReleaseID=381162&NewsAreaID=2 which detailed the proposed enforcement measures that the Home Office wished to take forwards.

This included the introduction of Penalty Notices for Disorder for second offences. The press release proposed "those caught with cannabis on a first occasion could still get a cannabis warning, but on a second occasion are likely face a fine of £80 and arrest if caught for a third time."

The main body of the Press Release fails to mention (though it is included in the footnotes) that the policing situation for under 18s remains unchanged, with them being subject to the reprimand/final warning/charge system incorporated in the Crime And Disorder Act.

The idea of PNDs appealed to the Police because they allowed for enforcement action without the time consuming processes of arrest, charge, courts and suchlike. The appeal for the Home Office was that they provided an escalation after an initial warning, thus saving police time and ramping up the sanctions.

On the Home Office website the message was a bit bolder "Once that change takes effect, anyone caught in possession of cannabis will receive a penalty notice. If they're caught in possession on more than one occasion they could face an on-the-spot fine of £80. Those who are caught a third time, could go to jail." http://www.homeoffice.gov.uk/about-us/news/tougher-action-cannabis
It's not really clear what this reference to a "penalty notice" means. Presumably it is a "cannabis warning" renamed to make it sound stricter. Then there's the fine. The last bit is certainly true in theory, but as the full press release makes much clearer, a third time would mean arrest, followed by a range of outcomes including "release without charge, caution, conditional caution or prosecution."

Depending on their stance and their intelligence, various media outlets interpreted the news in different ways. Some (e.g the Telegraph) interpreted this as meaning that users couldn't be arrested until a third offence. http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/3191025/Cannabis-users-will-have-to-be-caught-three-times-before-they-are-arrested.html

The Daily Mail, who had lobbied consistently for a reclassification of Cannabis, once again displayed their unerring love of a headline and failure to understand the law with their banner "Cannabis users face 'three strikes and you're jailed' http://www.mailonsunday.co.uk/news/article-1077254/Cannabis-users-face-strikes-youre-jailed.html

But as both the Mail and later the Times noted, there was a gaping problem with the Home Office's proposals.

The Times said "The approach was undermined immediately, however, when the Home Office said that warnings for a first offence would not be placed on the police national computer. This would make it difficult for police to check whether someone found with the drug was a first or second-time offender, particularly if the cannabis user was caught in a different police force area from where he or she lived." http://www.timesonline.co.uk/tol/news/politics/article4938527.ece
The proposals were that a first offence would only receive a reprimand but, unless this were recorded nationally, on the PNC, it would not be possible to implement a system of PNDs for second offences. If a PND could only be issued for a second offence, the Police would have to be certain that the person had previously received a cannabis caution.

At present, cannabis cautions are only recorded locally, not on the PNC and there is no requirement to verify the person's true identity or address.

The Home Office has said that it will look in to this issue, but it alone is unlikely to prevent the implementation of the proposed tiered sanctions sought by ACPO and the Home Secretary. However, in one of the rare glimmers of good news in the whole sorry proceedings, there should a be a consultation period at the Ministry of Justice on the implementation of PNDs for cannabis and this may allow a chance for saner heads to prevail.

It is hard to get a good sense of how many people would be affected by PNDs. The National Criminal Justice Board publishes figures as to how many people received PNDs and cannabis warnings over the past two years.

In the year ending March 2008, 102,467 cannabis warnings were issued. http://lcjb.cjsonline.gov.uk/ncjb/perfStats/pnd_formal-warnings.html

It is not clear how many of these warnings were for first or second cannabis offences, but based on these figures it's reasonable to assume some 50,000 people per year would receive these PNDs for cannabis. Outside of London, the police force issuing the greatest number of Cannabis Warnings was Merseyside, issuing some 7000 warnings. This is a little worrying, especially as the newly appointed Cannabis Coordinator was formerly a chief Superintendent on Merseyside, and one of the ACPO leads on cannabis.

It's also worth noting that an £80 PND cost £91 pounds to administer, and less than half of PNDs are paid in the required 21 day window - meaning that many still end up in arrest and court action. So if these procedures are followed we can expect more police and court time being tied up chasing up PNDs for cannabis.

In reality, the proposals surrounding the reclassification of cannabis are, once again pleasing no-one and Jacqui Smith must be questioning the wisdom of this fresh bodge job. In practice, little will change, and Smith has not received the plaudits that she must have hoped for in reclassifying cannabis.

In the list below, we highlight how very little will change when cannabis goes back to Class B. (click on the image to view at full size)



In practice, although cannabis will exist back in Class B, it will effectively be in a class of its own. The penalties and policing of cannabis will be unlike other class B drugs (such as amphetamines) or Class C drugs (such as benzodiazepines).

One could argue that as such, the Home Office is partly moving away from the Classification of system, designing a set of legal and policing responses on a drug by drug basis rather than on the widely discredited Classes of drugs. However, the Government has not had the courage to break fully from the sytem introduced in 1971.

In the meantime, adulterated, unmanaged cannabis will continue to be widely available in the UK and unfortunately, the latest Government fudge will only create more confusion, frustration and bafflement with this unworkable system.