Annex E
INTERNATIONAL LAW AND DECISION MAKING: POSSESSION
AND SUPPLY
DR NICHOLAS
DORN, DRUGSCOPE
HEADLINES
The international drug conventions require the
UK and other signatory states to establish as criminal offences
acts of drug possession "subject to its constitutional principles
and basic concepts of law".
The historic development of an international
requirement for criminalisation of drug possession (not use) has
been hesitant and is accompanied by qualifications and "get
out" clauses. Even today, some signatories prohibit (make
illegal) drug possession but either make it punishable civilly
(more properly expressed as "administrative measures")
or not at all.
The following evidence, based on and extending
the comparative legal study, European Drug Laws: the room for
manoeuvre1, suggests that the legal concept that is most relevant
in considering this issue in the UK is proportionality. Parliament
could take the view that, for some acts of possession for personal
use that are currently criminal offences, the harms averted by
criminalisation do not out weigh the impacts of criminalisation
on individuals proceeded against. Parliament could equally decide
to leave this decision to the police, Crown Prosecution Service
and the courts as at present. Either course of action would be
compliant with the international conventions.
Consideration of the legal status of possession
for personal use cannot be taken isolation. For proportionality
of proposals to be assessed in the round, implications of decriminalisation
of possession in the context of drug supply also have to be addressed.
INTERNATIONAL CONVENTIONS
AND DRUG
USE
1. Drug use per se is not a criminal
offence in the UK or in many other European countries. Indeed
it was never the primary purpose of the international drug conventions
to criminalise drug use per se, only to prohibit it.2 As Alison
Jamieson has observed, in the systems of international control
that emerged in the beginning of the twentieth century, with the
Shanghai Commission in 1909, the Hague Opium Convention of 1912
and Single Convention of 1961:
2. "Whilst the prohibition of drug
use was thus an original component of international drug control,
during the first decade of the century it was a marginal issue,
and referred more to ban on consumption by minors and the closure
of `dens of vice'. [...] The prevailing feeling was that anything
concerning the freedom of the individual or the exercise of police
powers were matters for individual states, and that the primary
objectives of the international agreements were to ensure supplies
of narcotic drugs for medicinal and scientific purposes and to
prevent illicit diversion. [...] The 1972 Protocol to the 1961
Convention strengthened controls over production and traffic and
emphasised treatment and rehabilitation as alternatives to punishment
for offenders." (Jamieson, 2001 in Dorn and Jamieson, page
220).
3. In the 1971 Convention, there is widening
of substances for control to include many drugs that are entirely
synthetic—amphetamine for example. The 1988 Convention then
does two things, focusing respectively on suppliers and on drug
users. On supply, it strengthens international cooperation against
drug traffickers through extradition, mutual legal assistance,
transfer of criminal proceedings and the criminalisation of money
laundering and of diversion of precursor chemicals.
DRUG POSSESSION
4. In the second dimension, control of drug
use, the 1998 Convention does nothing to change the situation:
drug use has to be limited, prohibited and/or made illegal (the
wording varies) but it need not be criminalised. However, the
1988 Convention does require that for drug possession, each signatory
state shall, "subject to its constitutional principles and
basic concepts of law [...] establish a criminal offence."
5. So, possession for personal use has to
be made a criminal offence—as long as that is compatible
with states' constitution and legal order. What this means for
the UK will be addressed in a moment. However it should be noted
that the convention requires the establishment of a criminal offence
rather than any particular pattern of enforcement—a fact
that finds national reflections in various ways, for example in
warnings and cautioning in the UK, and through judicial, prosecutorial
and/or police policies, guidance notes or practices in most other
European states.
THE UK POSITION
6. On supply, the UK has been to the fore
in the timing and intensity of responses against drug trafficking
and related offences (and is amongst those EU Member States in
2001 pressing for greater convergence of penalties for trafficking).
7. On the user, the UK established as criminal
offences the possession of drugs including heroin, cocaine, amphetamine
and cannabis: use is not criminalised, possession is. Unlike some
other European countries, the UK has not taken advantage of the
"get-out clause" of the 1988 Convention. "subject
to [the state's] constitutional principles and basic concepts
of law". Indeed, so far there seems to have been little debate
on this point, although few would nowadays take the archaic position
that the UK has no constitutional principles or basic concepts
of law.
PROPORTIONALITY IS
THE KEY
8. The question arises—could the UK
rely on such principles and concepts to justify repeal of those
sections of the Misuse of Drugs Act that criminalise possession
for personal use?
9. There are three possible constitutional
and legal tests of whether criminalisation of drug possession
meets standards of what is acceptable in any properly developed
legal order. These tests are: (1) legal certainty (are the sanctionable
acts clearly defined?); (2) procedural rights (including fair
trail and access to an independent appeal)3 and (3) proportionality
(is the impact on individuals justified by achievement of wider
social objectives?). Briefly, we suggest that:
— Although English case law on drug
possession is very complex, in general it seems that drug possession
can be clearly enough defined for the purpose of legal certainty
(which may not be the case in a few other legal systems, eg that
of France). There are therefore no grounds for challenge on the
basis of legal certainty.
— In general, procedural rights in
relation to drug possession offences seem reasonably well established
in the UK, buttressed by the recent incorporation of the European
Convention on Human Rights into UK law. There is little prospect
of a successful challenge on these grounds.
— If there is doubt, it is around whether
criminalisation of drug possession is always proportional to the
harms thereby averted. Were it to review all the various forms
of evidence having a bearing on proportionality, Parliament could
take the view that for some acts of possession that are currently
criminal offences, on balance the harms averted by criminalisation
did not outweigh the impacts of criminalisation on individuals
proceeded against. Equally, however, Parliament might be content
to retain the criminal offence and leave it to the discretion
of the police, Crown Prosecution Service and the courts, as at
present.
10. Importantly the question of proportionality
does leave the possibility of challenge to current laws open to
those who argue that sections of the Misuse of Drugs Act should
be repealed as they contradict the UK's legal principle of proportionality.
A POLITICAL AS
WELL AS
LEGAL QUESTION
11. Formal tests of what is acceptable in
any properly developed constitutional and legal order do not seem
decisive as far as criminalisation of drug possession is defined.
So the question—still usefully defined in terms of proportionality—is
returned from the international legal sphere to the domestic political
sphere.
WOULD A
UK POLICY TO
DECRIMINALISE POSSESSION
REQUIRE CHANGES
IN INTERNATIONAL
LAW?
12. The answer is no. Due to the aforesaid
constitutional qualification, in effect the assessment of the
pros and cons of criminalisation/decriminalisation of possession
(for personal use) is left to national constitutional arrangements
and the specifics of national legal systems (just as is the question
of enforcement of law in practice).4 Where international law is
open to national interpretation, which is certaintly the case
here, national policy decisions that are well reasoned are relatively
invulnerable.
13. What might be required is clear articulation
of those aspects of UK "constitutional principles and basic
concepts of law" which, as a signatory to the 1988 Convention,
the UK would rely upon in decriminalising possession.
14. Elsewhere, DrugScope in its evidence
to the Select Committee sets out some pointers, as far as drug
use is concerned (focussing on proportionality vis-a-vis the
public goods of health, acquisitive crime, the economy and costs
to the Exchequer). There are however possible questions of the
impacts of decriminalisation upon international and domestic drug
trafficking and other forms of serious and organised crime and
hence upon public security.
DRUG TRAFFICKING
AND ORGANISED
CRIME: CONSEQUENCES
OF DECRIMINALISATION
OF POSSESSION?
15. Any consideration of the proportionality
of controls at the level of the user needs to take on board the
possible impacts of policy at other levels, notably in relation
to organised crime. Hence a particular and quite difficult question
arises: with decriminalisation where would users get the drugs,
and what would be implications for drug trafficking and organised
crime?
16. There seem to be three theoretical options:
16.1 Production and trafficking to be legalised,
there could then be a commercial or state-run trade. At first
glance the possible consequences at the level of drug supply appear
favourable ie traffickers exit in favour of legal supply. On consideration,
however, it seems likely that drugs like most other commodities
would be subject to Value Added Tax, and possibly to duty (we
imagine that purveyors of alcohol and tobacco would be keen to
see this, leaving aside the Exchequer). Thus to some extent incentives
to smuggling would remain and we cannot say that legalisation
of the trade would take drugs totally away from organised crime.
Furthermore, legalisation of trafficking would be absolutely at
odds with the international conventions and would be out of kilter
with wider commitments to international cooperation on organised
crime, money laundering, etc. It would require a state; (a) to
propose to other signatories quite radical changes not only to
the international drug conventions but also to many other international
agreements which touch upon drug trafficking and (b) to be successful
in arguing the case for these changes. It is not an option likely
to attract UK support.
16.2 "Large scale" trafficking
would remain criminalised, small-scale production or cultivation
for personal use (and possibly for non-monetary supply to friends)
would be decriminalised. Focusing on cannabis cultivation for
personal use, decriminalisation would attract criticism from the
INCB. This approach would reduce (rather than remove) "big"
trafficking. In principle, only some drugs can be home produced
or home cultivated (cannabis, mushrooms etc) and, even in relation
to those drugs, most or many users would not be in a position
to avoid recourse to the illicit market. A consequential problem,
experienced by the Netherlands from the 1980s onwards, would be
a degree of uncertainty and possibly something of an enforcement
vacuum in sections of the market between the user and remaining
"big" trafficking. According to one view, such a vacuum
provided the conditions in which small time criminals could mature
into big time criminals, capitalising through drugs, and then
being able to stay in that sector and/or move on to other sectors
of organised crime, corruption etc. Such an enforcement vacuum
needs to be avoided if decriminalisation of possession is not
to have unacceptable consequences for serious and organised crime.
Considering proportionality, legislators could see the prospect
of such consequences as an unacceptable risk. This, together with
the requirement for legal certainty (see above), would imply a
need for very clear legal delineation of the acceptable (or at
least decriminalised) limits of "self-supply". This
would have to be discussed and defined as part of the task of
establishing the proportionality of any policy proposals on how,
under decriminalisation of possession, the person would get their
drugs.
16.3 Continued criminalisation of all acts—production,
cultivation, preparation, sharing—that are necessary precursors
to possession for personal use. This would mean that, for every
person possessing a drug, there would remain one or more persons
who commit a trafficking offence (the possessor who cultivates
or produces or imports the drug or, alternatively, those who supply
it). This would avoid some of the problems stated above but it
produces the contradiction that a decriminalised act necessitates
other acts that are criminal. From the point of view of proportionality,
this might be an acceptable balance and, in practice, one could
envisage the possibility that acts of self-supply, whilst remaining
crimes, could come to be responded to by warnings or cautions
or at the most small fines.
17. What these points illustrate is that
consideration of the legal status of possession of drugs for personal
use cannot be taken in isolation from questions of supply. For
proportionality of proposals to be fully assessed, the implications
for supply have to be addressed. This may make the options to
be appraised more numerous and more complex but is inescapable
if serious consideration is to be given.
September 2001
REFERENCES
1 European Drug Laws: the room for manoeuvre,
edited by Nicholas Dorn and Alison Jamieson, with contributions
by an international legal research by an international team, Yann
Bisiou (France), Tom Blom (The Netherlands), Lorenz Böllinger
(Germany), Maria Luisa Cesoni (Italy), Jose« Luis de la Cuesta
and Isidoro Blanco (Spain), and Josef Zila (Sweden), published
in London by DrugScope, 2001 pp300.
2 Cf European Drug Laws.
3 For some commentators another principle, that
of privacy and respect for family life as defined in ECHR, has
potential for drug possession. However, as dealt with generally
in the jurisprudence of the Strasbourg court, the right to privacy
is not absolute and impacts on others still have to weighed in
the balance— as must be the right of states to prohibit
and indeed criminalise acts within the usual framework of proportionality,
legal certainty, etc. Thus the fact that an act might take place
in private (or be a part of one family life and/or religion) may
have to be taken into account but will generally not be a decisive
factor from the point of view of ECHR. (ref)
4 The historical record shows that national
decisions not to criminalise—as undertaken in diverse different
ways in some European countries (in Italy by legislation following
a referendum, in Spain by judicial interpretation, in the Netherlands
by prosecution guidelines—may be criticised by the International
Narcotics Control Board. However, the INCB is aware of the constitutional/legal
limitation in the Conventions; the regulatory powers given to
it are weak; and not being a judicial body it lacks the capacity
to adjudicate, being able to only express an opinion. See European
Drug Laws: the room for manoeuvre, entered into evidence for the
Select Committee by Drug Scope.
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