26 January 2009

To B or not to B - the chaos of Cannabis Re-reclassification

Cannabis moves back to B while everyone tries to work out how policing will now work

On the 26/1/09 Cannabis moved back to Class B. To accompany this move, new policing strategy and guidelines should have also come in to force, which included a series of escalating penalties for cannabis possession. This should have included the introduction of Penalty Notice for Disorder (PNDs) for second offences of Cannabis Possession.

However, as with every other aspect of cannabis policy, the reclassification has ended in farce, confusion and recrimination.

As we previously reported, the proposal to introduce PNDs has had to be postponed as the spectrum of offences to be covered by PNDs has met with the disapproval of the Magistrates Association, amongst others.

So PNDs will not now be introduced until the Ministry of Justice has undertaken a proper consultation on the subject, something that as early as last week they maintained was neither required or possible.

As a result of this, PNDs for cannabis possession will not now come in to force at the same time as cannabis moves back to Class B.

At present, neither ACPO nor the Home Office has indicated how cannabis should be policed in the meantime. It is likely that the existing regime - of two cannabis warnings at most followed by arrest - is the most likely course of action. This would mean that, in the short term at least, the move back to Class B would have no meaningful impact on cannabis possession.

The media coverage of the reclassfication today has been as confused as the reclassification itself. Interviewed on the Today programme, John Fassenfelt of the Magistrates Association railed against the way reclassification had been conducted. He argued that cannabis was, illogically, being treated differently to other class B drugs and that the power of magistrates to look at cases was being circumvented by the decision to allow PNDs for cannabis possession. He somewhat undermined his case by being unable to think of another Class B drug, but the principle remains.

However, the most poor performance came from the woefully underprepared Home Office Minister Alan Campbell. He was challlenged on why cannabis should be treated differently to other Class B drugs - and be the subject of PNDs when other drugs weren't. One of the reasons he offered was that each drugs really should be treated on its own merits and that, even within Classes drugs should not be treated the same. Which, when you think about it, is a pretty damning indictment of the current classification system.

However, the most laughable suggestion as to why cannabis should be policed and treated differently was that cannabis was easier to identify in the street (unlike other Class B drugs such as Amphetamine) and so could be handled differently as nothing needed to be sent off for analysis. Presumably, the same bizarre logic could be applied to a host of other drugs, such as Magic Mushrooms.

Unfortunately, Campbell wasn't pushed as to why the Home Office and MoJ had botched the introduction of PNDs quite so badly. So instead he spent a lot of time stressing that the first option available to Police Officers was to arrest and charge, and that they had the discretion to use other interventions.

This was somewhat disingenuous as ACPO guidance on cannabis to date has stressed a presumption against arrest. Further, the onus has been on the police to demonstrate that an arrest was warranted as opposed to it being an approved intervention in all cases.

So at present, cannabis has moved from Class C to B, with no guidance to explain how it will be policed in the short term, and uncertainty as to how the rollout of PNDs will take place now. Now that's what you could call sending out clear messages about cannabis!

21 January 2009

PNDs for Cannabis on Hold

Cannabis back to Class B but PNDs will have to follow later

Hot on the heels of the last post, lamenting the Government's failure to consult properly on the introduction of PNDs, there has been a change of heart at the Ministry of Justice and there will now be a period of consultation.

However, this is not a cause for jubilation. Nor does it appear to be directly related to cannabis. Instead it seems to be a result of Magistrates raising objections to the PNDs on the grounds that many of the offences were considered by Magistrates too serious to be handled with PNDs. Their focus (according to the Daily Mail) was the addition of unlicensed cabs to the list of offences which could receive a PND.

As a result, the Ministry of Justice has now said "the government has listened to concerns about certain aspects of extending the penalty-notice-for-disorder-scheme and has decided to consult more widely on the new offences to be included."

So last week, according to the Ministry of Justice, a consultation had taken place, (albeit of a limited nature) and there was no scope for wider consultation, and a week later, a wider consultation is required.

Now, hopefully, this will be a proper, open, public consultation. Then again, who knows what will happen next week.


19 January 2009

Cannabis Fines - Home Office Misleads regarding Consultation

No Consultation on PNDs for Cannabis Possession despite Home Office Assurance.

In October 2008, in their press release entitled "Tougher Action on Cannabis" the Home Office said that prior to Penalty Notices For Disorder (PNDs) being introduced, consultation would take place.

They said "Under penalty notice for disorder proposals, on which the Ministry of Justice (new window) will shortly run a consultation."

We wrote to the Ministry of Justice in November asking when this consultation would be taking place. A long period of silence followed.

Last week we finally received a reply from the MoJ saying that no consultation would take place, and suggesting that responsibilty for this lay with the Home Office. They said:

"Possession of cannabis is included on a list of proposed new offences drawn from a longer list on which we consulted stakeholders in 2006. The Government decided that the PND should be available to officers, subject to Parliamentary approval, on re-classification of the drug to Class B on 26 January 2009. In the light of this decision, it has not been possible to carry out a full consultation."

This response is astonishing. The Home Office clearly stated a consultation would take place. This would have been an opportune time to explore how impractical the introduction of PNDs would be, what safeguards would need to be in place, and give stakeholders a chance to comment and critique the proposal.

In 2006, a small scale MoJ consultation looked at adding certain offences to those which could be dealt with by PNDs. However, this consultation was restricted to ACPO, Justices and Magistrates Associations but not the public.

In the Explanatory Notes which accompanied the Criminal Justice and Police Act Ammendment (2009) which included adding cannabis to the list of PND offences the MoJ said:

"More recently, Departments with substantive policy responsibility for the various offences now being added have conducted consultations with their own stakeholders Therefore, although
there has been no formal public consultation, all those most involved and affected have had ample opportunity to make their views known."

So in effect the MoJ are saying that, as far as they are concerned, the Home Office consulted their Stakeholders regarding PNDs for Cannabis. And the Home Office said the MoJ would consult.

More worryingly, these proposals were never debated in Parliament. The Statement made by the Home Secretary on the 7th May 2008 made no mention of PNDs. They were mentioned in Written Answers in October 2008, and again they were mentioned in the Lord's Debate on the subject in November 2008.

Th upshot of this has been the introduction of PNDs never taken before the House of Commons, and no public consultation on the subject - just a RIA which was not available when the proposal went before the Commons.

Conspiracy or confusion? Who knows. The end result is the same.

January 2009