Select Committee on Home Affairs Third Report



47.  We now present the various arguments made to us for changing the drugs laws. Our conclusions and recommendations for four key drugs follow.


48.  The proponents of the most radical change to the drugs laws are those who suggest that the prohibition of currently illicit substances has not worked and cannot work. They argue that, far from limiting the harm caused by drug use, it is prohibition itself which causes the greater part of that harm. The argument here is that illegality militates against safe, open use and creates a dangerous environment in which drug use, criminality and social exclusion become unnecessarily wedded together.

49.  Perhaps the clearest statement of this stance came from Transform—the Campaign for an Effective Drugs Policy:

50.  The Angel Declaration, a manifesto for change of the drugs laws, uses similar arguments:

    "the UK prohibition of controlled substances, now embodied in the Misuse of Drugs Act 1971, has proved ineffective in the achievement of its objects, counter-productive in its side-effects, wasteful of public resources, destructive in its cultivation of criminality and commercial abuse, and inhumane in its operation. The Act no longer constitutes an appropriate form of social regulation, consistent with the UK's Human Rights commitments".[56]

51.  Other witnesses have pointed to the failure of alcohol prohibition in the USA in the 1920s, making an analogy with today's prohibition of drugs. Mr Nick Davies of The Guardian told the Committee:

    "what drug becomes safer, in terms of health or social damage, if you make it illegal?... Look at what happened when they prohibited alcohol. Did that make people safer to have their alcohol brewed by gangsters using methylated spirits which made them blind? Did it help that there was an explosion of organised crime? Did they reduce alcohol harm by prohibition? No."[57]

52.  The alternative proposed is the legalisation and regulation of all controlled drugs. Transform suggest that there are various distribution mechanisms, already used for the controlled supply of legal substances such as alcohol, tobacco and medicines, through which such a retail system could operate, including over the counter sales, licensed sales, pharmacy sales and prescription through a doctor. The various mechanisms offer different degrees of restriction of availability, and different drugs could be sold in different ways.

53.  It is argued that making currently illegal drugs available in this manner would not preclude the provision of vigorous health education campaigns aimed at discouraging use of any mind-altering substance. Sanctions on the age of legal consumers would be enforced as they are for the sale of alcohol and tobacco. The marketing of all drugs with potential for harm, including alcohol and tobacco, would be strictly forbidden.

54.  We have heard a range of arguments for such a system, encompassing philosophical and practical considerations. Liberty's submission to the Committee laid out the philosophical reasons for this being desirable:

    "as part of a free, democratic society individuals should be able to make and carry out informed decisions as to their conduct, free of state interference, or in particular the criminal law, unless there are pressing social reasons otherwise. Liberty is of the view that the decision by an individual to take drugs is such a decision and comes within the ambit of personal autonomy and private life. John Stuart Mill argued that the state has no right to intervene to prevent individuals from harming themselves, if no harm was thereby done to the rest of society. 'Over himself, over his own body and mind, the individual is sovereign.' Such fundamental rights are recognised by government, both in allowing individuals to partake of certain dangerous activities, for example drinking, extreme sports, and also in international treaties".[58]

55.  Dr Colin Brewer, Medical Director of the Stapleford Centre, put the argument to us in rather blunter terms:

    "Until 1916 you could intoxicate yourself with whatever you liked. You could go to hell in your own handcart, but at least the law did not interfere. Personally I feel rather strongly we should go back to that set of Victorian values".[59]

56.  On practical grounds, the argument has been made to us that a system of controlled availability of drugs would allow the Government to exert a much greater degree of control over the way in which substances are used, than is currently possible. Transform put it in this way: "drugs should be legalised because they are dangerous not because they are safe".[60] A legal system would, it is argued, allow the Government to regulate and guarantee the quality and dosages of drugs supplied, and to make available the safest equipment to administer the drug, all of which could be buttressed with health advice. Legalisation might take away some of the stigma of drug use, encouraging more drug addicts to seek treatment. Mr Fulton Gillespie, whose son died of a heroin overdose, said to us:

    "how can we regulate supply if we are not in charge of the power station? We have to take control away from criminals and place it back where it belongs, with us".[61]

57.  It is also argued that it would be easier to deter new users through truthful education policies if the laws on drugs were consistent with those on alcohol and tobacco, just as health education in the recent past has had a positive impact on prevalence of tobacco smoking. Even if legalisation did result in an increase in experimental drug use, we have been told, higher prevalence would be a small price to pay for all the other associated benefits of a legal and regulated market, as use does not necessarily lead to problematic use.[62] As many addicts also fund themselves through small-scale dealing, it is argued that, with the expense of a habit removed, this pressure to recruit new users would be removed, with a positive impact on prevalence rates.[63]

58.  A legal supply system, it is argued, would take away a massive source of income for the organised criminals currently supplying the drugs market, and hence reduce organised crime.[64] The legalisers argue that, while it is no doubt true that an illegal market could not be completely eliminated, it is logical to assume that it could be reduced significantly by the existence of a legal market, hence making the funding of organised crime more difficult, at least in the short-term.

59.  It is also argued that legalisation and regulation of drugs would reduce crime committed by addicts to fund a drug addiction, as addicts could buy their supply relatively cheaply from licensed retailers. Dr Brewer commented: "many people who find themselves...dependent on heroin and therefore having to do frightful things in order to raise enough money to buy it, would either not need to commit crime or would commit far fewer crimes, like impoverished alcoholic patients".[65]

60.  Others took a different view. The Minister, Mr Ainsworth, told us that "it is often the case that those who advocate legalisation advocate it as a potential panacea for many of the costs that are imposed upon the criminal justice system, without necessarily looking at the downside".[66] The Police Federation disagreed with the claim that legalisation would have a significant impact on organised crime:

    "This assumes that the powerful international drug cartels would simply fade away into the night. More likely scenarios are that they would fight to maintain their lucrative street trading".[67]

61.  Mr Ainsworth told us that the criminal market could never be entirely removed even within a legalised system, "unless you were prepared to sell it at a low price to almost anybody". He went on, "if you attempted to tax it, regulate the price, or prevented it getting into the hands of people whose hands you did not want it to get into then a secondary market would grow up around the legal market, and we would have some of the same problems of enforcement that we have now".[68] Mr Nicholas Dorn of DrugScope pointed out that organised crime is not dependent on the drugs trade for its survival:

    "I do not think the enormous criminal conspiracy is going to collapse by the removal of drugs from it. If you look at your average UK drug trafficker or European-based drug trafficker, they are likely to be involved not exclusively in drugs trafficking but also in some other activities...We are not going to have a clean house and get rid of organised crime".[69]

62.  Opponents also argue that a rise in new users and in problematic use would cancel out any harm reduction gains of a legalised and regulated system. The speculation that the removal of illegality would encourage more new users and make it easier for new users to experiment with drugs has been the most widely-held objection to legalisation heard by the Committee. Mr Ainsworth told us:

    "I do not believe that heroin is as freely available to young people as it would be in the kind of regime you describe. I think it would be a lot more available".[70]

63.  Sue Killen, Director of the Anti-Drugs Unit at the Home Office, told us that illegality carries a deterrent effect, and Mr Geoff Ogden, Co-ordinator of the East Riding and Hull Drug Action Team, told the Committee: "The word on the street for a long time about cannabis is the youngsters think it is going to be it is cool to use it".[71] Mr Ainsworth told us that: "it is proven beyond all doubt that illegality discourages use; that legalisation would lead, to some degree, to an increase in use".[72]

64.  Data on the deterrent effect is scarce, but a MORI poll conducted for the Police Foundation's Independent Inquiry found that the main reason why people do not take drugs is personal choice rather than a fear of the consequences or the legal implications. 56% of people questioned said the main reason people do not take drugs is they simply do not want to; 51% cited fears for health; 50% fear of death and 46% fear of addiction. 30% of adults and 19% of children felt that people did not take drugs because they did not wish to break the law; 17% (12% of children) said they did not because they were afraid of being caught by the police.

65.  We have listened carefully to the arguments. We acknowledge that there is force behind some of those advanced in favour of legalising and regulating. The criminal market might well be diminished (though not eliminated); likewise drug-related crime. Harm may well be reduced, although this would have to be balanced against an inevitable increase in the number of drug abusers if drugs were more widely and cheaply available. It is inevitable too that, however tightly the sale of drugs was regulated, there would be a significant leakage to under-age abusers, as there is already with cigarettes and alcohol. We do not agree with the contention that illegal drugs are already as widely available to under-age abusers as they would be under legalisation. We agree with those who say that legalisation would send the wrong message to the overwhelming majority of young people who do not take drugs. We also accept that a significant number of young people—we can argue about the numbers—are deterred from drug abuse by the fact that drugs are illegal. Finally, we note that however forceful the arguments, no other country has yet been persuaded to legalise and regulate. Nor can we ever foresee a day when it would be possible to legalise a drug as dangerous as crack cocaine, which leads to violent and unpredictable behaviour.

66.  While acknowledging that there may come a day when the balance may tip in favour of legalising and regulating some types of presently illegal drugs, we decline to recommend this drastic step.


67.  A less drastic alternative would be to legalise, or at least to decriminalise, personal possession of some types of drugs.[73] Mr Dorn of DrugScope told us, "DrugScope's position in relation to users is a practical one, that in effect...drug use per se should not be criminalised".[74] Turning Point, one of the largest voluntary sector providers of substance misuse services, told us: "criminal procedures should no longer be initiated for the possession of small amounts of any scheduled drug".[75]

68.  The main argument in favour of decriminalising possession is that it would remove the obligation of giving criminal records to large numbers of young people arrested for drug use who are, in all other respects, law abiding citizens. As regards cannabis we were told by Turning Point:

    "prison is never an acceptable environment in which to deal with possession. It does not serve a useful purpose for individuals or society if recreational users are brought closer to the consolidating of their criminality. A criminal record makes education, employment and family relationships much more difficult at a crucial stage of a young person's life and they are likely to learn more about drugs and more serious crimes inside prison than outside it".[76]

69.  It is also arguable that the criminalisation of personal possession, where use causes harm to no-one other than the user, is the least justifiable part of the drugs laws on human rights grounds. Liberty argues:

    "Article 8 of the European Convention on Human Rights provides: 'Everyone has respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the county, for the prevention of crime, for the projection of health and morals, or for the protection of rights and freedoms of others'. In a society that respects fundamental freedoms of the individual, and in particular the right to individual autonomy and choice, general restrictions and criminalisation of taking of drugs, cannot be justified".[77]

70.  It is also argued that decriminalisation would formalise a policing situation which already exists in relation to some drugs. The Police Federation, however, argued that no change was necessary as the police already have sufficient discretion to take a lenient view of possession of cannabis, for example:

    "while it remains a criminal offence to possess or to supply cannabis, the police have been operating a reasonable approach. This recognises the reality of the current situation and takes note of the more relaxed attitudes of a significant section of the population. Such an approach is consistent with the principle of policing by consent. There is no real contradiction between a lenient police attitude to possession for personal use, and continuing to target the criminals who import and distribute the drug".[78]

71.  At least two significant problems are presented by decriminalisation of possession for personal use. One concerns the "messages" which are sent out to young people, and the possible recruitment of new users (see paragraph 64 above).

72.  The second problem posed by decriminalisation of personal possession is that it offers no solution to the problem of supply and in fact might give drug suppliers an incentive to seek to expand the user market. It would engage enforcement agencies in a murky grey area between the user and the supplier, particularly in respect to small scale "social" suppliers, and would add a further degree of confusion to policing drugs. It might also diminish respect for the law as it would embrace a fundamental inconsistency—that it is permissible to use drugs, but not permissible to supply them.

73.  Attracted though we are by the prospect of avoiding giving criminal records to otherwise law-abiding young people, we believe that this problem is better dealt with by reclassification, which we address below.

74.  We accept that to decriminalise the possession of drugs for personal use would send the wrong message to the majority of young people who do not take drugs and that it would inevitably lead to an increase in drug abuse. We, therefore, reject decriminalisation.


75.  We have heard that several practical difficulties are faced when determining whether an act constitutes simple possession or the more serious offence of possession with intent to supply (which carries much higher maximum penalties—see table below). First, we are told, intent to supply is very difficult to prove, and where proof is based upon the amounts of substances in question, much court time is taken up with expert witnesses giving evidence on the amount that one person might reasonably be expected to take him or herself. It has been suggested to us that some defendants are wrongly convicted of the more serious offence of possession with intent to supply due to a lack of understanding about drug-taking habits and the amounts of different substances involved. To overcome this problem, and lend greater clarity to both the courts and to users, a threshold could be set of the amount of a substance held to constitute simple possession only, above which an intent to supply would be presumed.

Maximum penalty if tried on indictment (Class A drug involved)
Supplying a controlled drug
Having possession of a controlled drug
7 years
Having possession of a controlled drug with intent to supply it to another

76.  Mr Ainsworth told us that he was not aware of the law falling down in this respect, and that if penalties were given according to the amount of substance found on a suspect, "we would find systematically people were on the streets with just under that amount".[79] Mr Calvert-Smith, Director of Public Prosecutions, told us that "any attempt to define dealing or supply based on a given quantity [of substance] is likely to be extremely problematic", and explained:

    "In determining whether the appropriate charge is Possession with Intent to Supply as opposed to Simple Possession, the prosecutor will consider the amount of the drug in the defendant's possession. However, our policy has long been that this is not a conclusive indicator, although it is recognised that large quantities are likely to be more consistent with supply than personal use. The prosecutor will, in addition, consider other factors such as the variety of drugs found, evidence that the drugs were prepared for sale, other evidence of preparation, evidence of large amounts of money in the possession of the defendant and evidence from diaries and other documents".[80]

77.  We are not persuaded that an intent to supply should be presumed on the basis of amounts of drugs found; we therefore recommend that the offences of simple possession and possession with intent to supply should be retained without alteration.

78.  The second problem put to us was that the law does not distinguish adequately between "social supply"—between friends and not for profit—and large-scale commercial supply. We note that this type of "social use" is the main cause of the proliferation of drug use. It seems likely that more new users are introduced to drugs by friends than by street dealers. However, the argument put to us was that these crimes are different not only in scale, but in kind. Mrs Hope Humphreys, whose son was imprisoned for supplying ecstasy to his friends, told us:

    "Virtually everybody who has taken drugs has been a supplier. By passing a joint, you are a supplier; by getting the E for your friend for that night, you are a supplier. It is social supply, it is not a wicked, horrible person corrupting our youth. It is like buying a round of drinks to them".[81]

79.  The Police Foundation Report identified this problem as follows:

    "The current definition of supply does not distinguish between acts of different gravity, eg supply between friends, or for gain, or as part of an organised criminal group supplying in substantial quantities".[82]

80.  The solution they offered was to create a separate offence of "dealing" which would be used to identify those who engage in a pattern of illicit transactions over a period of time, as distinct from those who commit a single act of supply. They further recommend that, for those engaged in "social supply":

    "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 Class A) to another member or other members of that group believing he was acting, or had acted, on behalf of that 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".[83]

81.  If the defence was proven, the defendant would then only be liable for simple possession. Mr Calvert-Smith told us that at present "the judge will distinguish between dealers and social suppliers in the sentence passed following conviction".[84]

82.  We do not agree with the Police Foundation. Those guilty of "social supply" should not escape prosecution for this offence on the basis that their act of supply was to their friends for their personal consumption. We believe that this act of "social supply", while on a different scale from commercial supply, is nonetheless a crime which must be punished.

83.  We believe that while there are two different crimes of supply, the law only formally recognises one. We recommend that a new offence is created of "supply for gain", which would be used to prosecute large scale commercial suppliers. So-called "social suppliers" who share drugs between their friends on a not-for-profit basis should continue to be prosecuted for supply.


84.  A further step down from the radical options of legislative change would be to look again at the categories by which drugs are classified under the Misuse of Drugs Act 1971. The classifications of illicit drugs are designed to protect people from substances in a hierarchy of penalties which reflects their relative harmfulness. The indication by the Home Secretary, on 23 October 2001, that he would consider the reclassification of cannabis from Class B to Class C demonstrates the system's potential for flexibility and adjustment.

85.  The Committee has heard numerous representations to the effect that the classification system prescribed by the Act no longer accurately reflects current scientific and medical opinion:

86.  The importance of correctly classifying controlled drugs does not rest purely upon the justice of the penalties attached to possession and supply. It also has a significant impact upon the educational "messages" communicated to current and potential drug users about the dangers of using particular drugs. The point continually reiterated to the Committee is that, if the law (and education) does not reflect the realities of risk, users and potential users are likely to assume that all warnings are similarly skewed. Nor will it escape the notice of users and potential users if the law does not reflect relative harm: many young people will be presented with evidence of others using drugs all around them, and come to their own conclusions. Turning Point is of the view that:

    "changes to the drugs laws would also greatly enhance the credibility of drugs education work. For example ecstasy is classed alongside heroin and cocaine but is not perceived by some young people as being as dangerous and so when the police and other workers are talking about other Class A drugs, these more serious messages are also being discredited".[88]

87.  Mr Ainsworth recognised this when he said:

    "There is also an issue¼ of how we get the message across to young people. They are not stupid; they do know the basic facts in this area, or many of them do; and unless we have a credible message they switch off altogether to everything that we say".[89]

88.  We, therefore, conclude that the time has come to reconsider the existing classifications for the less harmful drugs and we address each in turn.

55   Ev 184. Back

56   Retrieved from the World Wide Web on 23 April 2001: Back

57   QQ. 155; 179. Back

58   Ev 126-7. Back

59   Q. 565. Back

60   Ev 185. Back

61   Q. 1374. Back

62   Mr Danny Kushlick, Q. 226. Back

63   Mr Nick Davies, QQ. 150; 162. Back

64   Transform, Ev 185. Back

65   Q. 578. Back

66   Q. 1204. Back

67   Vol III, Ev 241.  Back

68   Q. 1233. Back

69   Q. 769. Back

70   Q. 1230. Back

71   QQ. 126; 452-3. Back

72   Q. 1204. Back

73   Decriminalisation: this term is used to mean the removal of imprisonment as a sanction for possession. Offenders could instead be punished by a fine, or another "civil" measure. Back

74   Q. 756. Back

75   Vol III, Ev 245. Back

76   Vol III, Ev 246. Back

77   Ev 127.  Back

78   Vol III, Ev 241. Back

79   Q. 1217. Back

80   Vol III, Ev 273. Back

81   Q. 1392. Back

82   Drugs and the Law, pp. 62-3. Back

83   Ibid, pp. 63-4. Back

84   Vol III, Ev 273. Back

85   Vol III, Ev 246. Back

86   Ev 46. Back

87   Ev 166. Back

88   Vol III, Ev 246. Back

89   Q. 1208. Back

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