ANNEX: NOTE ON IMPLEMENTATION OF THE COMMITTEE'S
RECOMMENDATIONS
1. "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 dangerous crime which
must be punished as such" (paragraph 82).
"We believe that while there are two different
crimes of supply, the law only formally recognises one. We recommend
that a new offence be 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" (pararaph 83).
1.1 At present, there is a single offence
for "supply"[243]
under the Misuse of Drugs Act 1971. The offence does not require
proof of payment or reward so, for example, it would cover the
act of passing a reefer cigarette to a friend so that he can have
"a draw",[244]
in addition to acts of large scale commercial supply.
1.2 Under the present statutory scheme, the following
offences all carry the same maximum penalties for each class of
drug:
— Importation
— Production
— Supply
— Possession with intent to supply
Where the above offences concern a Class A drug,
the maximum penalty on indictment is life imprisonment.
1.3 Maximum penalties roughly reflect the gravity
of an offence, but they do not determine the sentence that will
actually be imposed in any given circumstance. The actual sentence
will be one which, in the opinion of the court, is commensurate
with the seriousness of the offence and which does not exceed
the maximum. From time to time the Court of Appeal lays down guidelines
for the sentencing of an offence or class of offences.
1.4 The new offence of "supply for gain"
could be made subject to the same statutory maximum penalty as
the existing offences of supply and possession with intent to
supply. It would then be for the courts to determine appropriate
sentences which reflect the relative gravity of offences, within
that bracket. Alternatively, the new offence could have a higher
maximum penalty to reflect the seriousness of supplying for gain.
This could be achieved by reducing the maximum penalty for supply
and possession with intent to supply (currently, life imprisonment)
where gain is not involved. In addition, two new offences could
be established, "supply for gain" and "possession
with intent to supply for gain", which carried a maximum
penalty of life imprisonment.[245]
2. "In the event of the successful completion
of clinical trials and a positive evaluation by the Medicines
Control Agency, we recommend that the law be changed to permit
the use of cannabis-based medicines" (paragraph 109).
2.1 This recommendation requires an amendment
to the Misuse of Drugs Regulations 1985 (S.I. 1985, No.2066,
as amended).
2.2 At present, cannabis can only lawfully be
produced, offered, supplied or possessed under licence by the
Secretary of State.[246]
There is no general exception which would otherwise permit its
use for medicinal purposes.[247]
2.3 Section 7 of the Misuse of Drugs Act 1971
(MDA 1971) empowers the Secretary of State to make regulations
which except specified controlled drugs from the restrictions
of importation and exportation, production, supply and possession.
The 1985 Regulations, which were made under this section, provides
general exceptions for the drugs listed in Schedules 2 to 5.[248]
This excludes cannabis, which is listed in Schedule 1 to the Regulations.
2.4 The drugs listed in schedules 2 and 3 (which
include Class A, B and C drugs) are excepted (subject to conditions)
from the restrictions of production, supply and possession. Different
rules for record-keeping apply to each, with tighter requirements
for Schedule 2 drugs. Schedule 4 excepts benzodizepines and anabolic
steroids from most of the restrictions which apply to controlled
drugs. Schedule 5 is concerned with preparations which contain
very small proportions of controlled drugs.
2.5 The simplest means of implementing the Committee's
recommendation would be to amend the 1985 Regulations in order
to move cannabis from Schedule 1 to either Schedule 2 or 3. Schedule
2 may be the most appropriate categorisation, given that tighter
record-keeping requirements apply.
3. "We support the Home Secretary's proposal
to reclassify cannabis as a Class C drug" (paragraph 121).
"We...recommend that ecstasy is reclassified
as a Class B drug" (paragraph 135).
3.1 These recommendations require amendments
to Schedule 2, MDA 1971, which classifies controlled drugs into
the three classes—A, B and C.
3.2 Reclassification must be implemented by Order
in Council.[249]
3.3 The prescribed procedure is set out in section
2(5) of the Misuse of Drugs Act 1971.
- The Government must first consult the Advisory
Council (unless it is acting on the recommendation of the Advisory
Council).
- After consultation, the Government must lay a
draft Order before Parliament, which must be approved by resolution
of each House.
- Once the draft order has been approved by Parliament,
the Government may recommend that Her Majesty in Council do make
the Order.
3.4 The terms of the Order(s) would need
to exclude ecstasy from the list of Class A drug[250]
and include it in the list of Class B drug[251]
and, similarly, exclude cannabis from the list of Class B drugs
and include it in the list for Class C.[252]
4. "We recommend that appropriate treatment
forms a mandatory part of custodial sentences and that offenders
have access to consistent treatment approaches within the prison
estate as well as outside it. This should include strictly supervised
methadone treatment in the first instance, as the most effective
treatment available" (paragraph 169).
4.1 The recommendation that appropriate treatment
forms a mandatory part of custodial sentences is likely to require
primary legislation. The recommendation that offenders have access
to consistent treatment approaches does not appear to require
legislation. It could be implemented through policy, as the existing
legislation makes general provision for the medical treatment
of prisoners.
4.2 The existing legislation does not, however,
make express provision for treatment of drug addiction,
nor does it require Prison Governors to make provision for drug
treatments within the prison estate.
4.3 The Prison Act 1952 makes provision for prisoners
who require medical attention, to receive it outside the prison
estate, if the Secretary of State so directs.[253]
In addition, there is general provision for the medical treatment
of prisoners within the prison estate. For example, every prison
must appoint a medical officer (who must be a fully registered
medical practitioner), to be entrusted with "the care of
the health, mental and physical, of the prisoners of that prison".[254]
Section 47 of the Act empowers the Secretary of State to make
regulations (the "Prison Rules") for the treatment of
prisoners, among other things.[255]
Although neither the Act, nor the Prison Rules, make express provision
for treatment of drug addiction, there is provision for drug testing.[256]
4.4. Rule 3 of the Prison Rules provides that
the "purpose of the training and treatment of convicted prisoners
shall be to encourage and assist them to lead a good and useful
life". Treatment for drug addiction would not appear to fall
outside that purpose. However, the courts have held (in the context
of the "sex offender treatment programme") that the
rule does not impose a mandatory duty on the Prison Service to
provide a rehabilitative programme.[257]
4.5 The latter part of the Committee's recommendation
could be implemented by amendment to the Prison Rules. For example,
the Prison Rules could be amended by inserting a new Rule 20A:
"20A (1) For the purposes of this rule, the
medical officer shall consult a medical practitioner who is a
fully registered person within the meaning of the Medical Act
1983 and has the necessary qualifications or experience for the
purpose of treating drug addiction (the "drug treatment practitioner").
A drug treatment practitioner may work within the prison under
the general supervision of the medical officer.
(2) The medical officer or the drug treatment
practitioner shall make arrangements for the provision of treatment
to any prisoner being addicted to any controlled drug,[258]
with a view to the reduction or elimination of the offender's
addiction to drugs.
(3) For the purposes of this rule, a prisoner
shall be regarded as being addicted to a drug if, and only if,
he has as a result of repeated administration become so dependent
upon the drug that he has an overpowering desire for the administration
to be continued.[259]
4.6 This amendment would confine the provision
of drug treatments to prisoners who were addicted to drugs (as
defined).
5. "We recommend that an evaluated pilot
programme of safe injecting houses for heroin users be established
without delay and that if, as we expect, this is successful, the
programme be extended across the country" (paragraph 186).
5.1 This requires an amendment to section
8 of the MDA 1971, which creates an offence for occupiers who
knowingly permit or suffer various drug-related activities on
their premises. This recommendation is dealt with in more detail
at paragraph 9 below.
6. "We recommend that a pilot along the
lines of the Swiss or Dutch model, is conducted in the UK. Should
such a pilot generate the positive results which one would expect
from the Dutch and Swiss experience, we recommend that such a
system should supersede the little-used "British system"
of licencing" (paragraph 190).
"We recommend that the Government commission
a further trial to look at expanding prescription of diamorphine
to addicts who have not yet or are not currently accessing any
treatment, despite having a long history of heroin addiction"
(paragraph 194).
7. "We recommend that training in substance
misuse be embedded in the undergraduate medical curriculum and
postgraduate General Practice curriculum, as a problem which will
arise with increasing frequency over the careers of all prospective
doctors training today" (paragraph 218).
"We would also expect the British Medical
Association and the Royal College of General Practice to take
a rather greater interest in this area than is evident so far.
In particular we would expect these organisations to use their
considerable influence to ensure that treatment of drug misuse
is included in the medical curricula." (paragraph 219).
7.1 The Education Committee of the General Medical
Council is responsible for overseeing the content of the undergraduate
medical curricula. The Privy Council has certain default powers
to act where the Education Committee does not.
7.2 An individual can only practice medicine
if he is a fully registered medical practitioner (or provisionally,
with limited registration). Entitlement to register is conditional
on (a) holding one or more primary United Kingdom qualifications
specified in the Medical Act 1983; (b) passing a qualifying examination;
and (c) satisfying certain specified requirements as to post-qualification
experience.[261]
Accordingly, training for drug misuse may either be included on
the curricula for qualification or, alternatively, it may form
part of the post-qualification experience.
7.3 The Medical Act 1983 provides that:
— The General Medical Council's
Education Committee shall have "the general function of promoting
high standards of medical education and co-ordinating all stages
of medical education".[262]
— For this purpose, the Education
Committee must (among other things) "determine the extent
of the knowledge and skill which is to be required for the granting
of primary United Kingdom qualifications and secure that the instruction
given in universities in the United Kingdom to persons studying
for such qualifications is sufficient to equip them with knowledge
and skill of that extent.[263]
Accordingly, the Education Committee has a duty to determine the
knowledge and skill requirements of medical qualifications. It
may decide that drug misuse ought to be required as part of the
medical qualification.
— If it appeared to the Privy Council
that the Education Committee ought to determine that drug misuse
be a requirement of the medical qualification, but had failed
to do so, then the Privy Council may direct the Committee to do
so.[264]
If the Education Committee failed to comply with such directions,
the Privy Council could effectively step into the shoes of the
Education Committee and exercise the power itself.[265]
This power may be exercised by any two or more of the lords and
others of the Privy Council.[266]
8. "We recommend that the Government
review Section 9A of the Misuse of Drugs Act, with a view to repealing
it, to allow for the provision of drugs paraphernalia which reduces
the harm caused by drugs" (paragraph 252).
8.1 The purpose of section 9A was to prohibit
the sale of drug kits, which were previously available on the
open market.[267]
Repealing the section would allow the re-emergence of the legitimate
sale of drug kits. There is an argument that the ready availability
of such kits might encourage, or otherwise legitimise, drug use.
The section could be amended, however, to ensure that paraphernalia
is available to addicts for the purposes of harm reduction.
8.2 At least two options are available. First,
the section could be amended to exempt specific articles of paraphernalia,
which are known to reduce harm (for example, witnesses have mentioned
citric acid in particular). These could be exempted in the same
way that hypodermic needles are excluded (see section 9A(2) of
the Act below). Secondly, the section could be amended to permit
supply by specified persons (such as doctors, nurses, pharmacists
etc). This would prevent the commercial sale of drug kits on the
open market, whilst allowing supply by bona fides treatment
providers.
8.3 Section 9A (at present) provides:
"(1) A person who supplies or offers to
supply any article which may be used or adapted to be used (whether
by itself or in combination with another article or other articles)
in the administration by any person of a controlled drug to himself
or another, believing that the article (or the article as adapted)
is to be so used in circumstances where the administration is
unlawful, is guilty of an offence.
(2) It is not an offence under subsection (1) above
to supply or offer to supply a hypodermic syringe, or any part
of one.
(3) A person who supplies or offers to supply any
article which may be used to prepare a controlled drug for administration
by any person to himself or another believing that the article
is to be so used in circumstances where the administration is
unlawful is guilty of an offence.
(4) For the purposes of this section, any administration
of a controlled drug is unlawful except—
(a) the administration by any person of a controlled
drug to another in circumstances where the administration of the
drug is not unlawful under section 4(1) of this Act, or
(b) the administration by any person of a controlled
drug to himself in circumstances where having the controlled drug
in his possession is not unlawful under section 5(1) of this Act.
(5) In this section, references to administration
by any person of a controlled drug to himself include a reference
to his administering it to himself with the assistance of another."
9. "We recommend that Section 8 of the
Misuse of Drugs Act be amended to ensure that drugs agencies can
conduct harm reduction work and provide safe injecting areas for
users without fear of being prosecuted" (paragraph 257).
9.1 Section 8 was only recently amended by
the Criminal Justice and Police Act 2001 (s. 38), which extended
its application quite significantly (although the amendment is
not yet in force).[268]
The purpose of the extension was to cover so-called "crack
houses", although it would appear to extend more widely than
that.[269]
9.2 Section 8 (as amended) provides:
A person commits an offence if, being an occupier
or concerned in the management of premises, he knowingly permits
or suffers any of the following activities to take place on those
premises, that is to say—
(a) producing or attempting to produce a controlled
drug in contravention of section 4(1) of this Act;
(b) supplying or attempting to supply a controlled
drug to another in contravention of section 4(1) of this Act,
or offering to supply a controlled drug to another in contravention
of section 4(1);
(c) preparing opium for smoking;
(d) smoking cannabis, cannabis resin or prepared
opium;
[(d) administering or using a controlled drug
which is unlawfully in any person's possession at or immediately
before the time when it is administered or used.]
NB: the new paragraph
(d) (substituted by the Criminal Justice and Police Act 2001,
s. 38) is underlined and in square brackets. This will replace
the italicised paragraph (d), when it comes into force.
9.3 There are two options for implementation
of the Committee's recommendations. The first is draft an exclusion
clause, which applied specifically to a defined group (eg drugs
agencies), or for a defined purpose (eg to provide safe injecting
areas). The second, and perhaps simpler, option is to draft an
exemption which permitted a licencing system, whereby the Secretary
of State would authorise specific harm reduction activities to
take place on specified premises.
9.4 Adopting the second option, section 8 could
be amended as follows:
(1) A person commits an offence if, being an
occupier or concerned in the management of premises, he knowingly
permits or suffers any of the following activities to take place
on those premises, that is to say—
(a) producing or attempting to produce a controlled
drug in contravention of section 4(1) of this Act;
(b) supplying or attempting to supply a controlled
drug to another in contravention of section 4(1) of this Act,
or offering to supply a controlled drug to another in contravention
of section 4(1);
(c) preparing opium for smoking;
(d) administering or using a controlled drug which
is unlawfully in any person's possession at or immediately before
the time when it is administered or used.
(2) It shall not be unlawful for any person mentioned
in sub-section (1) to knowingly permit or suffer any activity
which is authorised in accordance with the terms of a licence,
issued by the Secretary of State, and in compliance with any conditions
attached to the licence."
10. "We recommend that the Home Office
and the Department of Health urgently review the current legal
framework on the dispensation of controlled drugs by community
pharmacists in consultation with the Royal Pharmaceutical Society"
(paragraph 260).
10.1 This would require a review of the Misuse
of Drugs Regulations 1985[270]
and, in particular, Regulations 15 (form of prescriptions) and
16 (provisions to supply on prescription).
11. "We recommend that Drugs Abstinence
Orders be amended to carry the requirement of access to treatment"
(paragraph 264).
11.1 This recommendation requires amendment
to those provisions of the Powers of Criminal Courts (Sentencing)
Act 2000, which deal with Drug Abstinence Orders.
11.2 Drug Abstinence Orders may only be made
in respect of adult offenders (18 and over) where, in the opinion
of the Court, the offender is dependent on, or has a propensity
to misuse specified Class A drugs and he has either been convicted
of a "trigger" offence,[271]
or the court feels that his Class A drug misuse caused or contributed
to the offence.
11.3 Such orders must be made for a specified
period not less than 6 months and not exceeding three years.[272]
11.4 At present, Drug Abstinence Orders must
include only two requirements. First, that the offender abstain
from misusing specified Class A drugs and, secondly, to undertake
a drug test on instruction.[273]
Accordingly, there is no express power to make provision for treatment
within the order.
11.5 By contrast, Drug Treatment and Testing
Orders must include a requirement that the offender submit to
treatment, in addition to testing.[274]
Accordingly, treatment under a DTTO is compulsory.
11.6 Drug Abstinence Orders could be amended
to require the Court to make an order which includes provision
for access to appropriate treatment, through the following amendment
to section 58A of the Powers of Criminal Courts (Sentencing) Act
2000. After sub-paragraph (4) insert:
"(4A) The drug abstinence order shall
provide that, for the duration of the order, the offender shall
have access to an appropriate course of treatment by or under
the direction of a specified person having the necessary qualifications
or experience, with a view to the reduction or elimination of
the offender's dependency on or propensity to misuse drugs."
243 The offence covers "supplying or offering to
supply a controlled drug or being concerned in the doing of either
activity by another". MDA 1971, s. 4(3). Back
244
R v. Moore [1979] Crim. L. R. 789. Back
245
On indictment. Back
246
1985 Regulations, Reg. 5. Back
247
Cannabis falls within Schedule 1 of the 1985 Regulations, to which
the general exceptions do not apply. There are, however, two
specific exceptions applicable to cannabis. The first permits
the smoking of cannabis or cannabis resin for research purposes,
in premises approved by the Secretary of State (1985 Regulations,
Reg.13), and the second permits the cultivation of cannabis plants
under licence issued by the Secretary of State (MDA 1971, s. 6
and 1985 Regulations, Reg.12). Back
248
For example, doctors and dentists (or any person acting in accordance
with the directions of a doctor or dentist) are permitted to administer
to a patient any drug specified in Schedule 2, 3, or 4 and Any
person can administer to any other person a drug specified in
Schedule 5 (1985 Regulations, Reg.7). Back
249
MDA 1971, s. 2(2). Back
250
Part I of Schedule 2, MDA 1971 contains the list of Class A drugs.
Esctasy (or "methylenedioxymethylamphetamine", MDMA)
is not specifically mentioned in Schedule 2, but it is a Class
A controlled drug as being a compound falling within paragraph
1(c) of Part of I of Schedule 2 (Archbold: criminal pleading,
evidence and practice 2000, para. 26-15). Back
251
Part II of Schedule 2, MDA 1971. Back
252
Part III of Schedule 2, MDA 1971. Back
253
Prison Act 1952, s. 22(2). Back
254
Prison Act 1952, s. 7(4) and Medicine Act 1983, ss.55 and 56,
Sched. 6, para. 11(2); Prison Act 1952, s. 7(1); s. 47; Prison
Rules 1999 (S.I. 1999, No.728), Reg. 20(1). Back
255
Regulations 20 and 21 of the Prison Rules 1999, make various general
provisions for the medical attention of prisoners within the prison
estate. Back
256
The Prison Act 1952 provides for the compulsory testing of prisoners
for drugs (section 16A) and alcohol (section 16B). However, the
Act makes no express provision for treatment of drug addicts (or,
indeed, alcoholics). Back
257
R. v. Secretary of State for the Home Department, ex p. John
Shaw, 10 February 2000, QBD. Back
258
"Controlled drug" is already defined in the Prison Rules
as "any drug which is a controlled drug for the purposes
of the Misuse of Drugs Act 1971", Rule 2(1). Back
259
This replicates the definition of drug addict, as defined in the
Misuse of Drugs (Supply to Addicts) Regulations 1997, S.I. 1997,
No. 1001. Back
260
S.I. 1997, No. 1001. Back
261
Medical Act 1983, s. 3(1)(a). Section 3(1)(b) provides that EEA
nationals are entitled to be registered if they hold one or more
primary European qualifications. Back
262
Medical Act 1983, s. 5(1). Back
263
Medical Act 1983, s. 5(2)(a). Back
264
Medical Act 1983, s. 50(1)(b). Back
265
Medical Act 1983, s. 50(2), (3). Back
266
Medical Act 1983, s. 52. Back
267
Rudi Forston, Misuse of Drugs and Drug Trafficking Offences,
(Sweet and Maxwell, 2002), para. 7-35. Back
268
Date in force: to be appointed; Criminal Justice and Police Act
2001, s. 138(2). Back
269
Rudi Forston, Misuse of Drugs and Drug Trafficking Offences,
(Sweet and Maxwell, 2002), para. 7-01. Back
270
S.I. 1985, No.2066 (as amended). Back
271
Schedule 6 of the Criminal Justice and Courts Act 2000, sets out
a list of offences which are "trigger" offences. Back
272
Powers of Criminal Courts (Sentencing) Act 2000, s. 58A(7), as
inserted by Criminal Justice and Courts Act 2000, s. 47. Back
273
Powers of Criminal Courts (Sentencing) Act 2000, s. 58A(1). Back
274
Powers of Criminal Courts (Sentencing) Act 2000, s. 52-8. Back
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