Select Committee on Home Affairs Second Special Report




1.  The Government welcomes the report of the Committee set up by the independent Police Foundation, which contributes to the ongoing process of assessing the effectiveness of our drugs laws and policies. Tackling drug misuse is a key priority for this Government, and now being implemented through the ten year National Strategy launched in 1998.

2.  The Misuse of Drugs Act 1971 is the main legislation controlling the misuse of drugs in this country and the legislation underpins the Strategy. It is important to ensure that it continues to serve its purpose. The Inquiry's report goes beyond legislative proposals and it should be remembered that, while the United Kingdom Government is responsible for the subject matter of the Misuse of Drugs Act 1971, the devolved administrations are responsible for prevention, education, treatment, rehabilitation and other aspects of enforcement.

3.  Following publication of the Inquiry's report, the Government asked Keith Hellawell, the United Kingdom Anti-Drugs Co-ordinator, to chair a committee to review its recommendations. This committee's membership was drawn from across Government and key agencies. Five meetings were held between 28 June and 30 August. The committee recommended support of 24 of the recommendations, rejection of 37 and referral of 20 for further consideration by relevant Government departments and agencies.

4.  The Government does not support the Inquiry's recommendations on the re-classification of cannabis, ecstasy and LSD. The Government announced this shortly after the publication of the report. The reasoning is set out below. But recognising that the consideration of so thorough a report would take some time, the Government felt it was important not to allow possible speculation about its attitude to these particular recommendations.

5.  This memorandum responds to the recommendations in chronological order except where obvious linkages make it sensible to take a number of recommendations together.

Recommendation 1. The information research base should be given renewed attention. In particular:

    i    Routine statistics should be improved to ensure that gaps in our understanding of the scale, nature and extent of drug use are reduced, and;

    ii  enforcement and treatment policies should be evaluated thoroughly.

6.  The Police Foundation is quite right to identify the importance of a sound information and research base to inform the National Strategy. It is a key priority of the Strategy to improve our level of information and the robustness of the evidence base. This will enable us to measure and monitor progress toward the aims of the Strategy and make best use of our resources.

7.  A major new research programme, funded mainly through a ring-fenced allocation of £6million over three years, was started in 1999/2000. Better and shared information systems will be put in place to show more definitively what the drug problems are and what works best against them. The primary aim of the research programme is to track the progress of the Strategy in terms of key performance indicators. In addition, the devolved administrations and Government departments (as part of their departmental policy research) also support the Strategy objectives. For example, the Department of Health are investing £2.4million over five years in a major new research initiative into the prevention and treatment of drug misuse and £½ million into the research on Hepatitis C in drug misuse. Other examples of progress, more from a Home Office perspective, include:

  • The rolling out of the NEW-ADAM programme of research into drugs-crime connections, involving eight locations a year (New English and Welsh Arrestee Drug Abuse Monitoring, with voluntary urine testing of suspected offenders).

  • The initiation of substantial programmes of research into prevalence estimation and drug use by vulnerable groups.

  • The development of a programme of research into the 'supply-side'; with initial reports due for publication next year on (i) total annual consumption of drugs in volume and expenditure terms and (ii) the 'middle-market' of the supply chain.

Recommendation 2.  The present classification of drugs in the Misuse of Drugs Act should be reviewed to take account of modern developments in medical, sociological and scientific knowledge.

Recommendation 3.  The main classification criteria should continue to be that of dangerousness.

Recommendation 4.  The chronic health risks from each drug should be kept under continuous review.

Recommendation 5.  A model of three classes offered by the Misuse of Drugs Act should be retained.

Recommendation 6.  There should be clear criteria for the future to govern additions to, and transfers between, the classes.

Recommendation 14.   The Advisory Council for the Misuse of Drugs should continue to be the body that has the statutory responsibility for considering and making recommendations to Ministers on the classification of new drugs and for keeping existing classes under review.

Recommendation 15. Future reports from the Council should clearly state its methods and findings on such matters.

8.  The Police Foundation's recommendation that the Advisory Council for the Misuse of Drugs (ACMD) should retain the statutory responsibility for advising the Government on the classification of new drugs is very welcome. ACMD was established by the Misuse of Drugs Act 1971. It has served successive Governments well in the intervening period and its members, who give their time free of charge, bring an unrivalled depth of knowledge and experience to the Council. The Chairman of this Police Foundation Inquiry is among the list of distinguished previous members of the Council.

9.  It is part of ACMD's statutory remit to keep drug misuse under review and the Council has always been ready to look at individual drugs (e.g. ecstasy in 1997) on a more proactive basis when it believes this would be helpful.

10. The criteria for guiding the assessment of any given drug was set out in a 1996 protocol agreed by the two sub-groups of the Council that have responsibility for pharmacological and epidemiological assessment of specific drugs. This year, and very much in keeping with the Police Foundation thinking, ACMD has been reviewing this protocol and considering whether it might be improved, perhaps by drawing upon best practice elsewhere. A special joint meeting of these two sub-groups took place at the end of August and there were presentations from the European Monitoring Centre for Drugs and Drug Addictions (EMCDDA) and colleagues from Holland. Further meetings have trialed possible variants and have helped to developed thinking. It is hoped that proposals for a revised risk assessment protocol will be put to the full Council of the ACMD during 2001.

11. The Government agrees with the Police Foundation's conclusion that the main classification criteria should continue to be that of dangerousness and that the model of three classes as offered by the Misuse of Drugs Act should be retained. As the Police Foundation's report recognises, assessments of the sort that ACMD are required to make when considering the harmfulness of drugs must contain an element of subjectivity, but the Government and the Council agree that reports from the Council should clearly state methodology.

Recommendation 7.  Ecstasy and related compounds should be transferred from Class A to Class B.

12. The Police Foundation correctly concludes that ecstasy is less toxic and less addictive than heroin or cocaine. But each of the three classes within the Misuse of Drugs Act will necessarily encompass a range and, as the Police Foundation recognise, it is right to consider a number of factors including the effect of misuse on society and the question of prevalence. In assessing any drug there are various risks to consider (eg toxicity, both short and long term; risk of dependence and risks to society). Drugs rarely rate a high or low risk in all categories and weighing these respective risks is not a precise science, and there will inevitably be some room for debate over classification.

13. All too frequently in recent years, families and friends have had to cope with the tragic consequences of young people taking ecstasy. Ecstasy was placed in Class A on the recommendation of the Advisory Council on the Misuse of Drugs in 1977. In 1997 the Advisory Council convened a special meeting to discuss ecstasy following a number of deaths. Council identified that ecstasy posed very real risks of fits, seizures, mental disturbances and death. It also identified very worrying pointers on the longer-term risks to mental health. And we continue to hear disturbing research evidence of the long-term effects. In the absence of any clear recommendation from the Advisory Council to the contrary, the Government believes that ecstasy should remain a Class A drug.

Recommendation 8.  LSD should be transferred from Class A to Class B.

14. LSD is an hallucinogenic drug and has powerful effects on the mind. These can last as long as eight to twelve hours. There is no way of stopping the "trip" once it has started. A "bad trip" is impossible to predict and can be terrifying. Users may be prone to accidents while they are hallucinating and they experience flash backs, often some considerable time after the event. The drug can complicate mental problems such as depression, anxiety and schizophrenia. As with ecstasy, the Government would accept that the acute risks of taking LSD are less than for heroin or cocaine but has not seen any evidence that would suggest that it is wrongly classified as a Class A drug.

Recommendation 9.  Cannabinols such as d-9 THC should be transferred from Class A to Class C.

Recommendation 13.   Herbal cannabis and cannabis resin should be transferred from Class B to Class C.

Recommendation 61.   Cannabis should be transferred from Class B to Class C of Schedule 2 of the MDA and cannabinol and its derivatives should be transferred from Class A to Class C.

15. In 1979, the Advisory Council on the Misuse of Drugs (ACMD) undertook a review of the classification of controlled drugs and penalties under the Misuse of Drugs Act. It was, in particular, the debate on the position of cannabis within the international system of control that gave rise to the review. ACMD recommended, as the Police Foundation notes in support of their own recommendation, that cannabis should be transferred from Class B to Class C. What the Police Foundation does not make clear, is that this recommendation was by no means unanimous. In his report to the then Home Secretary, the Chairman of ACMD wrote

    "Some members' appraisal of all the available scientific evidence so far leaves them to conclude that some alleviation of the penalties for unlawful possession could be contemplated at the present time without undue concern about its encouraging increased use a possible risk to public health. Others, having regard to reports of current, although inconclusive, scientific investigations are not satisfied that enough is known to recommend action which would be widely regarded as implying that the risks of using cannabis and cannabis resin are less serious than was believed; and which would encourage increased use".

16. As the 1998 report by the House of Lords Select Committee on Science and Technology "Cannabis: the Scientific Medical Evidence" notes, new research on the health effects of cannabis is regularly coming forward. For example, we are still learning about the health risks associated with smoking cannabis, including the risks of cancer. Existing scientific evidence, which fuels doubts about the health risks associated with cannabis use, persuade the Government that it would not be right to reclassify cannabis at this moment in time. However, the Government will keep the evidence under review and is ready to consider any further recommendations from the Advisory Council in the future.

Recommendation 10. The Government should encourage the development and manufacture of benzodiazepines in combination with an antagonist, such as flumazenil, that would block the "high" when used intravenously, but would not affect the therapeutic response when used orally.

17. The Government welcomes any approach to medicines that reduces their dangers without interfering with their therapeutic benefits or adding to their side effects. We will raise this issue with manufacturers, initially on an informal basis. However, our initial impression is that it is likely that there will be a number of problematic issues about the use of Flumazenil. For example, people who have epilepsy should not take it.

Recommendation 11. Doctors should be encouraged to prescribe the less abused benzodiazpines and non-benzodiazepine alternatives.

18. The Government agrees with this and believes that the spirit of this recommendation is included in guidance currently issued by the Royal Pharmaceutical Society and the British Medical Association.

Recommendation 12. Buprenorphine (except when in combination with Naloxone) should be transferred from Class C to Class B.

19. The Government will seek the views of the Advisory Council on the Misuse of Drugs on this recommendation.

Recommendation 16. The Government should study the United States and the Netherland systems with a view to establishing an effective early warning system in this country.

20. The Government shares the Inquiry's views on the importance of an effective early warning system. But the Inquiry does not appear to take account of the mechanisms already in place. Routine forensic examination of customs and police seizures provides excellent early intelligence on new synthetic substances and any changes to trends in misuse. The Advisory Council on the Misuse of Drugs is among the recipients of a quarterly report from the Forensic Science Service.

21. The UK is also party to a joint action by the Council of the European Union to set up a common mechanism to facilitate timely action to introduce controls on new synthetic drugs. Evidence that the UK system works in practice can be seen from the references the UK made to this mechanism in respect of the synthetic drugs MDBD and 4-MTA. The early UK identification of these drugs led to prompt agreement to their control by Member States.

22. While the UK system does not rely solely on information obtained from forensic analysis of police and customs seizures (eg The National Poisons Information Service and hospitals have important roles to play too), there is a need to ensure that all these sources are pulled together and the information disseminated promptly to those who need to know. This is something the Department of Health is currently considering.

Recommendation 17. The Government should set up a detailed and in depth examination of the relationship between the Misuse of Drugs Act 1971 and the Customs and Excise Management Act 1979.

23. The Police Foundation Report suggests that the present fragmentation of the law between the two Acts is unsatisfactory. It further suggests that this may make co-operation between the Police and Customs more difficult than is necessary or desirable, but accepts that it has received no specific evidence on the matter. In fact where differences exist, for example in the area of bringing prosecutions, this has been addressed by the establishment of protocols between the two enforcement agencies. However, the Government accepts that this is an area that might benefit from a more in depth examination and proposes to establish a working group including the Police and Customs to look at the issue.

Recommendation 18. There should be a separate offence of dealing, the main ingredient of which would be the pattern of activity of illicitly transacting business in drugs. It should be capable of being charged as a continuing offence.

Recommendation 19. The new offence of dealing should be designated a trafficking offence for the purpose of the Drug Trafficking Act 1994.

24. The Government believes that this recommendation demonstrates a misunderstanding of how prosecutions are handled in practice. The intention of recommendation 18 is to ensure that the prosecution can show that a defendant has been dealing over a period of time. Guidance was issued to Crown Prosecution Service lawyers in 1997, which alerted them to the need to prefer sufficient counts on the indictment to show the totality of the criminal conduct involved. A new offence would not in the Government's view take matters further and would only give the defence ammunition to argue points of law.

Recommendation 20. It should be a defence for a person accused of supply or possession with intent to supply to prove that he was a member of a small social group who supplied or intended to supply a controlled drug (other than a Class A drug) to another member or members of that group believing he was acting, or had acted on behalf of the group, which shared a common intention to use the drug for personal consumption. This defence would only apply where the court was satisfied that the amount or value of the controlled drug was consistent with personal use within the group concerned.

25. The Government understands the wish that lies behind this recommendation, namely to ensure that a distinction is made between small-scale peer group supply and "professional" dealing. But the recommendation would create very significant problems of definition. The Report provides no evidence to suggest that in practice the courts are unable to distinguish across the spectrum of the supply offence, but the Government will consider further the possibility of a sample analysis of cases. If this gives support to the Inquiry's concerns, the Home Secretary will consider whether the Sentencing Advisory Panel might usefully be asked to look at the need for guidance.

Recommendation 21. Maximum penalties for trafficking offences under the Misuse of Drugs Act and Customs and Excise Management Act should be amended as shown in Table 4.3 on page 67 of the Report.

Recommendation 22. The penalties for other trafficking offences, such as money laundering and illicit traffic in precursor chemicals, should be separately considered and, if necessary in order to achieve consistency, brought into line.

Recommendation 65. The maximum penalty for trafficking offences for Class C drugs, including cannabis, should be 7 years imprisonment and/or an unlimited fine. Cannabis offences would, like all such offences, continue to attract the confiscation powers of the Drug Trafficking Act.

26. The Government rejects these recommendations. Trafficking offences are the most serious offences connected with drug misuse and it is right and proper that the courts should have a wide discretion to sentence according to the variation of circumstances likely to be encountered.

Recommendation 23. Drug offences should be designated as a relevant category of offence for the purposes of Sections 80 and 81 of the Crime and Disorder Act 1998 and guidelines proposed by the Sentencing Advisory Panel for consideration by the Court of Appeal.

Recommendation 24. The factors set out in Chapter 4, paragraph 43, should be taken account of in such guidelines.

27. The Inquiry appears to have misunderstood the role of the Sentencing Advisory Panel. Offences are not designated for the purposes of Sections 80 and 81 but are made the subject of a referral to the Panel by the Court of Appeal, when it is seised of a guideline case, or by the Home Secretary. The Panel can also propose to the Court that guidelines should be framed for a particular type of offence.

28. The Court of Appeal has already issued a range of guidance on drugs offences. The Inquiry makes no mention of this and no evidence is offered to show that this guidance is not being followed. The Court of Appeal recently sought specific advice from the Sentencing Advisory Panel, under Section 81 of the Crime and Disorder Act 1998, in respect of offences involving opium. This was duly issued in May of this year. The Government is satisfied that broad guidelines already exist and that the Court of Appeal will seek the views of the Sentencing Advisory Panel where a need is identified.

Recommendation 25. Before further consideration is given to confiscation of assets under civil law, steps should be taken to strengthen and make maximum use of existing criminal law procedures.

29. The Government believes that a twin track approach is needed to make sure the confiscation laws work in an optimum fashion. Civil recovery is intended to provide a reparative measure - taking away from individuals that which was never legitimately owned by them. Organised crime heads use their resources to keep themselves distant from the crime they are controlling and to mask the origin of their assets. This can make it extremely difficult to carry out successful criminal investigations leading to prosecution. The need to secure a criminal conviction to enable the removal of unlawful assets can lead to a vicious circle, whereby assets used to fund street and drug crimes are effectively out of reach of the law and are available to be recycled to finance more crime. Civil recovery aims to break this cycle by removing unlawfully acquired assets from the system, thereby disrupting criminal activities. Given the nature of criminal activity, it is essential that broadly similar provisions apply throughout the United Kingdom. The Scottish Executive is, therefore, working closely with the Government to ensure that parallel measures are implemented in Scotland.

Recommendation 26. The responsibility for enforcement of confiscation orders should lie with the Crown Court not with the Magistrates' Courts.

30. This recommendation has been overtaken by the recommendations of the Performance and Innovation Unit Report of June this year "Recovering the Proceeds of Crime". It is now proposed that in England and Wales a national confiscation agency should be responsible for enforcement of all confiscation orders that it obtains, i.e. in larger and more complex cases. Smaller cases will remain with magistrates' courts to enforce, as there is no machinery within the Crown Court to enforce financial orders. The National Confiscation Agency will oversee all enforcement performance.

Recommendation 27. The time limit set for payment of the amount named in a confiscation order should be that which seems reasonable to the court having looked into the circumstances and heard and tested the arguments of prosecution and defence.

31. The Government proposes that a confiscation order should normally be payable straight away, unless the defendant can satisfy the court that time to pay is required, in which case up to six months may be allowed. In exceptional circumstances, this may be extended to a maximum of 12 months. The Government's approach will ensure that confiscation orders are paid more promptly, whilst retaining flexibility.

Recommendation 28. The recommendations in the Home Office Consultation Paper for improving the effectiveness of the Criminal Law system of confiscation should be followed up except where they are overtaken by other recommendations, particularly Number 26.

32. The Police Foundation Report is referring to Chapter 2 of the 1998 report of the Home Office Working Group on Confiscation. This is being taken forward within the implementation of the PIU Report.

Recommendation 29. The new National Confiscation Agency proposed by the Home Office should be set up with the overriding remit of ensuring that the present criminal confiscation machinery, reformed as we propose, achieves full efficiency.

33. The Government believes that full efficiency will be achieved by implementation of the PIU recommendations.

Recommendation 30. A considerable investment in recruitment and training of people with the requisite skills should be made in most branches of the Criminal Justice System, in particular the Police, Prosecution and Courts (including the Judges).

34. The new National Confiscation Agency will include a Centre of Excellence in financial investigation to select, train and accredit financial investigators, both for its own requirements and those for the law enforcement agencies. The Centre of Excellence will also be developing training modules for delivery to the judiciary (in consultation and co-operation with the Judicial Studies Board), the Crown Prosecution Service and other non-specialist law enforcement officers

Recommendation 31. It should be possible for the courts to order the forfeiture of property other than land seized by the police which was clearly about to be used in the commission of a further offence.

35. We consider that our proposed reforms to criminal confiscation, together with the introduction of civil recovery, will have the desired effect of depriving criminals of their ill-gotten assets.

Recommendation 32. The law should take full advantage of the leeway left by the United Nations Conventions to deal with the less serious situations in a non-punitive way.

36. The existing control continuum is already flexible. Court is very far from being the first resort in cases involving minor drugs offences.

Recommendation 33. The maximum penalty of imprisonment albeit on a lower scale should be retained for Class A drugs.

Recommendation 34. In the case of Class B and Class C drugs, the present custodial penalties should be removed and the court should develop further the non-custodial responses available to them.

Recommendation 36. The maximum penalties for possession offences should be as set out in Table 5.2 on page 79.

37. The Government rejects the proposed rescheduling of penalties. Retaining imprisonment as an option is both an incentive to treatment and allows courts to consider a wide range of orders, including community service. Courts have already developed non-custodial methods of enforcement, and fines can and are considered for minor offences.

Recommendation 35. As soon as the legislative opportunity permits, the progressive repeal of the ability of the courts to attach treatment conditions to probation orders in drugs cases should be reversed.

38. The report misunderstands how probation orders in relation to offenders with drug problems were used by the courts in the past. The Drug Treatment and Testing Order (DTTO), which apply to England and Wales only, addresses the same target group which the 1A6 Probation Order which preceded it was intended to address, but in fact has failed to do. The funding we have made available for the DTTO, on current estimates, will pay for 6,000 orders per year, as opposed to approximately 1,700 1 A6 Orders in 1997, (the last year for which figures were available). The DTTO is basically very similar to the 1 A6 Order it superseded but contains some innovative requirements (regular testing and court reviews) to increase monitoring and enforcement.

Recommendation 37. Arrestability under Section 24 of PACE should be retained for possession offences involving Class A and Class B drugs.

Recommendation 38. Possession of Class C drugs is not an arrestable offence at present. This situation would not change when cannabis is transferred to Class C.

Recommendation 39. In Scotland the present powers of detention should be retained for possession of Class A and Class B drugs but should not be extended to Class C drugs when cannabis is transferred there.

Recommendation 40. The Police should develop procedures for properly recording and documenting drug seizures that take place on the streets.

39. These recommendations, which seek to address the operational difficulties that would be caused by the Report's recommendation for re-classification and reduction of penalties, fall because of the Government's rejection of the underlying recommendations.

Recommendation 41. Paragraphs (a) and (b) of Section 8 (knowingly permitting or suffering supply and production) should be retained subject to re-drafting designed to make it clear that the main aim is to deter those who wilfully allow others to produce or supply controlled drugs.

Recommendation 42. "Wilfully" should be defined as meaning "not caring whether the unlawful production or supply takes place or not".

Recommendation 43. A person should not be regarded as acting wilfully merely by reason of his failure to disclose confidential records or material in respect of the persons in his care.

Recommendation 44. Section 8 should be extended to include the new offence of Dealing recommended at 18 above.

Recommendation 46. Paragraphs (c) and (d) of Section 8 (knowingly permitting or suffering premises to be used for preparing opium or for smoking cannabis or opium) should be repealed.

Recommendation 66. Permitting or suffering people to smoke cannabis on premises which one owns or manages should no longer be an offence under Section 8 of the MDA.

40. Section 8 of the Misuse of Drugs Act 1971 recognises as a serious offence, the connivance of those in charge of premises who allow the unlawful production or supply or consumption of controlled drugs to take place there. Section 8 replaces a similar section in the Dangerous Drugs Act of 1965 and was specifically drafted to ensure that only a person with guilty knowledge is caught by its provisions. As currently drafted it quite properly requires those concerned in the management of premises to accept responsibility for taking all reasonable steps that are readily available to them to prevent drug dealing. It is not clear what recommendations 41 - 43 would achieve. If they are designed to protect the occupier who does not know about the illicit activity or who, despite his best efforts, is unable to prevent it, the amendment is unnecessary and makes the existing protection less clear. If, alternatively, it is designed to limit the offence to occupiers who positively encourage such use of their premises, it represents a significant weakening of the Criminal Law in this area. In any event, the Government believes that it would obfuscate the law and clarity is a crucial element in drafting of criminal offences.

41. The reference to opium clearly reflects the age of this particular provision of the law. But the underlying reason for distinguishing opium and cannabis smoking from other modes of drug consumption (e.g. oral) was that it would be clearly discernible that such an offence was taking place. The Police wish to see this provision of the law extended to all controlled drugs. The Government supports this wish and will examine the options for amending the legislation accordingly. This examination will also cover the scope for extending the protection from wrongful prosecution for those who work with drug misusers. If it is concluded that legislative changes will be effective, then these will be taken forward when a suitable vehicle is found.

Recommendation 45. Maximum custodial penalty on indictment for premises offences involving Class B drugs should be reduced from 14 years to 7.

42. The Government rejects this recommendation and believes that it is right that the courts should determine the appropriate sentence within the broad scope that the law currently provides.

Recommendation 47. It should be a condition of their licenses that owners and managers of places of entertainment take measures for the safety of drug takers.

43. The Government shares the Police Foundation's concern about drug misuse in pubs and clubs. That is why the Public Entertainments Licenses (Drug Misuse) Act 1997 (which came into force on 1 May 1998) was introduced following consultation with local authority associations, ACPO and representatives of the club trade. This Act enables a local authority to revoke or not to renew a public entertainment licence because there is a problem relating to the supply or use of controlled drugs in connection with the premises - and for closure to have immediate effect. It also gives local authorities the power, as an alternative, to impose new conditions on the licence. Best practice guidance, also produced in partnership with the Local Government Association, the British Entertainment and Discotheque Association and ACPO was issued to support the legislation.

Recommendation 48. Educational material about the main drugs and their risks, including the risks of driving, should be widely available at entertainment venues.

44. The Government agrees. The Home Office, the Health Education Authority (HEA) and the voluntary sector have all produced useful factual advice about drugs and volatile substances. "DETR's Road Safety Strategy "Tomorrow's Roads - Safer for Everyone" published on 1 March 2000 acknowledges that the profile of the issue needs to be raised to highlight the risks of driving whilst impaired by drugs. DETR is considering how those risks might be publicised and has a comprehensive ongoing research programme. Good knowledge, appropriate targeting and effective enforcement would make such publicity effective overall because it would be seen to be authoritative and there would be a real threat of getting caught. Any message would need to be targeted towards the precise nature and extent of the problem and would need to give positive advice informed by well-researched knowledge".

Recommendation 49. Section 9 of the Misuse of Drugs Act (Offences relating to opium) should be repealed.

45. The Government sees the sense in this recommendation and, subject to the views of the Advisory Council on the Misuse of Drugs, this is something that might be addressed when next a suitable legislative opportunity presents itself.

Recommendation 50. Section 9A of the Misuse of Drugs Act (paraphernalia) should be repealed.

Recommendation 51. The exemption for hypodermic syringes currently contained in Section 9A should for the avoidance of doubt be inserted into Section 19. It should be extended to other products.

46. Section 9A was added to the 1971 Misuse of Drugs Act to catch the sale of drugs kits. These were being marketed for the sale in a range of products such as Rizla papers, razor blades and citric acid. Section 9A (2) exempted the supply or offer to supply of hypodermic syringes. This provision enabled needle exchanges to supply sterile needles to drug misusers. The Government does not believe it would be sensible to repeal Section 9A. There may be a case for adding to the list of exemptions but it is important that, as with hypodermic syringes, that there is a clear argument on the grounds of harm minimisation. The Advisory Council on the Misuse of Drugs has considered on a number of occasions in the past ten years whether the exemption under Section 9A should be extended to include other items of paraphernalia. There has not been a clear consensus. However, in the light of the Police Foundation's recommendations, the Government has asked the Council for fresh advice, to be submitted after its next meeting on 31 May.

Recommendation 53. The main need is for quality control and close monitoring of the outcomes of stop and search. The aim should be to have fewer stop and searches but a higher proportion of them with successful outcomes.

47. The Government agrees that the focus should be on the quality of stops and searches rather than the quantity. In response to recommendations from the Stephen Lawrence Inquiry, the Home Office commissioned a wide ranging programme of research to help broaden understanding of stop and search and how it can be improved both in terms of effectiveness and fairness. This research included pilot projects to test the practical implications of recommendation 61 of the Lawrence Inquiry that all stop and searches be recorded and a copy of the record given to the person stopped. Conclusions of the research are being discussed with stakeholders in the minority ethnic community as well as the Police and other interested organisations.

Recommendation 55. Cautioning should become a statutory sanction, with guidelines laid down in Regulations.

Recommendation 56. The fiscal fine system should be introduced in England and Wales for operation by the Crown Prosecution Service.

Recommendation 57. Out of court fines should only be used for cases that would otherwise be prosecuted and should not replace the caution in the kind of case for which cautions are now used. That might be ensured under statutory cautioning guidelines.

Recommendation 58. It should be made clear in legislation that cautions, reprimands, warnings, compounds and out of court fines should not be capable of being cited in court as evidence of the character either of the defendant or of the witness. Section 66(5) of the Crime and Disorder Act would need to be amended accordingly. A similar change is needed to CEMA's provisions on compounding.

Recommendation 59. Records of cautions, reprimands and warnings for drug possession offences should continue to be kept on the Police National Computer.

Recommendation 60. The Secretary of State should include information on drugs cautions, reprimands or warnings in criminal records certificates only in the most exceptional cases.

48. The Inquiry endorses an earlier recommendation of the 1993 Royal Commission on Criminal Justice to place cautioning on a statutory basis. The reasoning behind this recommendation was to allow for national guidelines to increase consistency between Police forces. Although there has been no legislation in relation to adults since that time, the Home Office Circular and two sets of guidelines from ACPO have been issued. Cautions for juveniles have been placed on a statutory basis in the Crime and Disorder Act by way of Final Warnings Scheme. The position of juveniles was distinguished by their being significantly more likely to receive multiple cautions. Although the national guidelines have improved matters, there is still evidence of inconsistency, which might arguably be more effectively addressed by statute rather than further guidance. This is something the Government is considering but this process would be better informed when we have a clear idea of how the juvenile provisions have worked in practice. The Government is not persuaded that a fiscal fine system, such as applies in Scotland (which does not have a system of cautions), is desirable.

49. Government does not share the Inquiry's view that cautions should not be capable of being cited in court as evidence. The Inquiry recognises that there is a clear need for the Police to have access to a record of previous cautions when making case disposal decisions on subsequent offences, and for the courts to have access when sentencing. The existing cautioning guidelines emphasise that the fact that a caution will be recorded and used in these ways must be spelled out to an offender when a caution is administered. The Government have accepted that there is a separate problem relating to the stigma attached to possessing a caution; for example when asked to confirm the existence of a criminal record by a prospective employer. We have consulted on proposals to apply the provisions of the Rehabilitation of Offenders Act 1974 to cautions on the basis that they should become spent immediately. The only obstacle to this change is finding a suitable legislative vehicle.

Recommendation 62. The possession of cannabis should not be an imprisonable offence.

Recommendation 63. Prosecution of offences of cannabis possession should be the exception and only then should an offence, if it results in a conviction, incur a criminal record. An informal warning, a formal caution, a reprimand or warning in the case of those aged 17 or under or a fixed out of court fine should be the normal range of sanctions.

50. Custody acts as an important backstop to ensure that defendants appear in court for a range of offences and as a way of helping to enforce other penalties such as fines or community sentences. Police powers of arrest for drugs possession, which neither they nor the Government wish to see abolished, are also dependent on these offences being imprisonable. Where imprisonment is imposed, the courts in each case has thought it justified. In these circumstances it would be wrong for the court to be denied use of that which they regard as a proportionate punishment. The practical implications of recommendation 62 were identified by Dennis O'Connor, now Chief Constable of Surrey, and a member of the Inquiry. In practice, as the report acknowledges, almost no one is given an immediate custodial sentence solely for the possession of cannabis unless there is evidence of persistent flouting of the law.

Recommendation 64. The cultivation of small numbers of cannabis plants for personal use should be a separate offence from production and should be treated in the same way as possession of cannabis, being neither arrestable nor imprisonable and attracting the same range of sanctions. Cultivation of cannabis for personal use under Section 6 and production under Section 4 should be mutually exclusive offences.

51. The Government does not believe that this would be a sensible way forward. It would pose very significant problems of definition and there is no evidence that the Government is aware of that the courts are not capable of distinguishing the circumstances of any individual case.

Recommendation 67. Statutory sentencing guidelines should include the vicinity to schools, psychiatric services and prisons as aggravating factors for the purposes of sentencing for trafficking offences.

52. Existing Court of Appeal guidance allows for aggravating circumstances. The Government believes that decisions on this sort of matter are best left to the courts. Being more specific and including this within the statutory framework, as the Police Foundation Report suggests, would provide very real difficulties of definition.

Recommendation 68. Cannabis and cannabis resin should be moved from Schedule 1 to Schedule 2 under the Misuse of Drugs Act Regulations thereby permitting supply and possession for medical purposes. If there is to be any delay in adopting this recommendation pending the development of a plant with a consistent dosage, we recommend a defence of duress of circumstances on medical grounds for those accused of the possession, cultivation or supply of cannabis.

53. The Government's policy on the medicinal use of cannabis remains as set out in its response to the 1998 report of House of Lords Select Committee on Science and Technology: namely that it would be premature to amend legislation to allow the prescribing of cannabis before the quality, safety and efficacy of a medicinal form the drug has been scientifically established and a marketing authorisation issued by the Medicines Control Agency. This is the procedure that all prospective new medicines have to go through. If clinical trials into cannabis are successful and lead to a medical preparation which is approved by the Medicines Control Agency, the Government has made it clear that it would be willing to amend the Misuse of Drugs Regulations to allow the prescribing of such a medicine. Guidance to the Police and Crown Prosecution Service enable consideration to be given, in any particular case, as to whether a prosecution in all the circumstances is in the public interest.

Recommendation 70. There should be a very substantial reallocation of resources and particularly an increase in the provision of services for adolescents, women, people from minority ethnic communities and people with mental health problems.

54. The Government's forward expenditure plans, as announced this year by The Chancellor of the Exchequer, will mean expenditure on the root causes of drug misuse will significantly increase to some £996million by 2003-2004. An additional £100 million has been made available for drug misuse in Scotland. This represents a major new investment in resources to underpin the delivery of the Government's challenging targets for tackling drug misuse. The new funding will be largely focused on treatment and prevention initiatives, in order to enhance the Government's proactive stance against drug misuse. Extra provision for drugs treatment over the next three years will underpin the work of the new National Treatment Agency and pooled treatment budget. In addition there will be more effective co-ordination of community based prevention work.

Recommendation 71. Where a response is sought to problem drug use, as opposed to the crime related to it, treatment in prisons should always be considered a second best option, and sentencers should not be attracted to it as a solution.

55. The Government has announced plans to establish a National Treatment Agency in response to concerns about the speed with which additional treatment capacity can be brought and the way that treatment services are currently commissioned. We want the National Treatment Agency to make a difference by setting standards of treatment provision and commissioning, performance monitoring and developing and tackling variations in treatment standards and availability. But it is also important to use the opportunity provided by the Criminal Justice System to identify those people within it with the drug misuse problems and get them into early treatment. Arrest referral schemes, Drug Treatment and Testing Orders and the Prison Service Counselling Assessment Referral Advice and Through Care Services (CARATS) are good examples of such initiatives.

Recommendation 72. More far reaching research is needed to provide a better understanding of the precise dynamics and causal links in the drugs crime relationship and better evidence about the factors that influence treatment effects. There is a particular need to evaluate the cost effectiveness of different interventions, in order to inform future decisions on distribution of overall drugs expenditure.

56. As already mentioned, the Government recognises the importance of a sound research base and has made significant money available for research in support of the National Drugs Strategy. But the Inquiry is right to identify the importance of these specific areas, which are being addressed through the following pieces of research:

  • The drugs-crime relationship is being assessed through the NEW-ADAM programme. The latest report, Home Office Research Study 205, which was published in August 2000, included authoritative measurement over time of changes in drug use and offending, in two locations (Nottingham and Sunderland).

  • Evidence about treatment effects is being gathered through the NTORS research programme, which the Department of Health is continuing to support, and also through a study published by the Home Office in August, concerned with methadone maintenance (Home Office Research Findings No.120).

  • The cost effectiveness of different interventions is receiving heightened attention. For instance, the on-going evaluation of the effectiveness of arrest referral includes an economic component. Also, the study of methadone maintenance, just mentioned, included a cost effectiveness component.

Recommendation 73. A statutory framework and guidelines covering the conditions that may be attached to a caution should be part of the legislation that would put cautioning of those over 17 on a statutory basis. In particular:

    (i) the police should be given statutory powers to attach conditions to a caution, including the power to charge the offender with the original offence if the conditions are not met;

    (ii) the power to attach conditions should be supported by statutory guidelines making it clear what sort of conditions are permissible and how compliance should be assessed;

    (iii) the police should be given powers to release offenders on police bail while arrangements for treatment are made; if such arrangements are not made the offender will be charged for the offence.

57. As the Police Foundation recognise "caution plus" schemes provide an alternative to prosecution. Along with Arrest Referral Schemes and DTTOs they provide a criminal justice intervention opportunity to get drug misusers into contact with treatment services. The Police Foundation Report correctly identifies that the schemes are not statutory and vary between police force areas. In order to evaluate the different schemes in operation and to determine best practice, the Drug Prevention Advisory Service at the Home Office has commissioned research by South Bank University to evaluate three schemes in current operation (Lincolnshire, Derbyshire and Tower Hamlets). An evaluation report is expected shortly. When this report is available and has been considered, the Government will be in a better position to decide on the future of "caution plus" schemes and how they should operate.

Recommendation 74. It should be made clear (by amending PACE if necessary) that further questioning to establish willingness to undergo treatment is permissible after the evidence to support a charge has been obtained but it should take place only with the suspect's agreement.

Recommendation 75. The relevant PACE code should be re-drafted so as to draw a clear distinction between questions designed

to establish guilt and questions designed to establish an offender's willingness to undergo treatment. The code could then go on to lay down at which point each type of questioning could take place.

58. Last year the Government announced that a total of £20million would be provided over the three years from 1999 to 2002 to ensure that by the end of that period all police forces in England and Wales operate a face to face Arrest Referral Scheme to identify problem drug misusers and encourage them to take up appropriate treatment. Rollout began in July 1999 and already 40 of the 43 police forces in England and Wales have joined the scheme: 22 forces are fully operational.

59. Detailed guidance on setting up effective Arrest Referral Schemes was sent to all police forces, in a manual produced by the Drug Prevention Advisory Service; Drugs Interventions in the Criminal Justice System. A copy of this guidance can be obtained free of charge from the Drugs Prevention Advisory Service. This guidance covers the requirements of the Police and Criminal Evidence Act 1984 (PACE) and the Codes of Practice made thereunder. The guidance suggests, to ensure a proper distinction between the task of bringing the possibility of arrest referral to the attention of the suspect and the questioning of that person regarding his or her involvement in an offence under investigation, that it should be the Custody Officer who brings arrest referral to the attention of the suspect, as part of the booking in procedures. It is early days in the rollout of the Arrest Referral Scheme which includes monitoring arrangements to evaluate effectiveness. If experience shows that the requirements of PACE and the Codes of Practice are adversely impinging on delivery of arrest referral, the Government will of course look at the need to amend this legislation.

Recommendation 76. Urgent consideration should be given to extending the licensing system under the Misuse of Drugs Act so that doctors in private practice and NHS doctors who prescribe privately have to be licensed if they wish to prescribe any Class A drug to an addict. Such licenses should be based on criteria which include the doctor's training handling specialist support.

60. The Government agrees that the existing limited licensing provisions for doctors treating addiction should be extended. A public consultation exercise was conducted earlier this year proposing the following changes:

  • A licence requirement for prescribing any controlled drug in Schedule 2 or 3 of the Misuse of Drugs Regulations 1985, with the exception of Methadone liquid or mixture on an NHS prescription.

  • A licence requirement for prescribing any controlled drug in Schedules 2, 3 or 4 in injectable form.

61. The effect would be to place the licensing requirement on both NHS and private prescribing for any injectable controlled drugs, on private prescribing for all Schedule 2 and Schedule 3 controlled drugs in whatever form, but to leave the NHS prescribing of Methadone liquid or mixture unaffected. The criteria for the issue of prescribing licenses will include points identified by the Department of Health Working Group as essential pre-requisites for any doctor applicant, namely an appropriate level of clinical competence, completion of training, the suitability of the clinical environment and arrangements for effective liaison with specialist services. Clinical competence will be assessed in terms of the three skill levels identified in the Department of Health document entitled Drug Misuse and Dependants - Guidelines on Clinical Management.

Recommendation 77. A National Register of private prescriptions should be set up and arrangements made to scrutinise and monitor.

62. Retail pharmacists are required to keep private prescriptions for two years where Drugs Branch Inspectors and Police Chemist Inspecting Officers can see them. Pharmacists favoured by private drug addict patients are well known (and rarely found outside London), and information therefore is readily retrievable. In these circumstances a National Register seems unnecessary.

Recommendation 78. The existing tribunal system should be abolished.

63. We agree. No reference to a tribunal has been made since 1994. The system is outdated, slow and possibly defective in terms of forthcoming Human Rights legislation. It is expected that cases of irresponsible prescribing of controlled drugs will be dealt with effectively by the revised Medical Council procedures.

Recommendation 79. The licensing system and rights of appeal should be under the control of Directors of Public Health.

64. Directors of Public Health already have an important role in recommending (or otherwise) the grant of existing licenses. In the proposed extended licensing scheme it is intended that this role should be significantly developed, both in terms of determining the suitability of applicants and considering local needs. But operating the system and taking accountability for it will properly remain with the Home Office.

Recommendation 80. We support the recommendation by the British Medical Association in 1997 for "a national comprehensive, confidential information system to provide up to date prescribing information on individuals, accessible to practitioners, and other prescribers, available out of hours, including weekends".

65. The Government agrees it is a sensible to take reasonable steps to limit the risk of multiple prescriptions. But the BMA proposal raises many issues, including significant costs. The previous system failed to deliver useful operational information because of poor compliance by doctors in relation to notifying details to the system. The proposed extended licensing scheme will lead to the setting up of more practical, local arrangements for information sharing.

Recommendation 81. We urge the Government to give urgent and sympathetic consideration to the report of the Royal Pharmaceutical Society on services to drug misusers and particularly to the recommendations listed in paragraph 39 and chapter 8.

66. The report of the Royal Pharmaceutical Society of Great Britain (RPSGB) makes a number of recommendations which seem worthwhile in terms of the contribution community pharmacists can make to the delivery of an effective treatment service for drug misusers. The Government are currently considering possible amendments to the Misuse of Drugs Regulations to permit computer generated prescriptions for Schedule 2 and 3 Controlled Drugs and for controlled drug registers to also be maintained on computer as an alternative to the current hand-written requirement. The RPSGB proposals in relation to pharmacists amending prescriptions are understandable, but the Government wishes to be certain that the proper balance is struck to avoid improper prescribing. We are seeking the views of doctors.

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