Home Affairs Committee - Drugs: Breaking the CycleWritten evidence submitted by Peter Hitchens (DP155)

The Wrong End of the Telescope

Why all inquiries into drugs miss the point

Submission to the Home Affairs Committee by Peter Hitchens, journalist and author of “The Abolition of Britain” (1999), “A Brief History of Crime” (2003) and of the forthcoming “The War We Never Fought—Britain’s non-existent war on drugs”.

My simple point is that there is a national misconception, in politics, the academy and the media, that Britain’s drug laws are repressive and harsh, that a “War on Drugs” is taking place and that many baleful results follow from this misguided prohibition. The truth is rather different. Despite a smokescreen of militant rhetoric, British governments, together with the police and the courts, have pursued an increasingly permissive attitude towards drugs, especially towards the most commonly used drug, cannabis, for four decades.

Whatever problems we face, a war against drugs cannot possibly be the cause of them, for there is no such war.

This truth is clearly visible on the public record, and hides in plain sight, ignored and disregarded in inquiry after inquiry, debate after debate. I am engaged in a history of this strange process, and I hope the brief selection of facts and quotations below will give some idea of the point I wish to make to the Committee.

In October 1973, Lord Hailsham, then the Lord Chancellor of a Conservative Government, instructed Magistrates in England and Wales to stop sending people to prison for possession of cannabis.

He told a meeting of the Magistrates’ Association that they should not “dive off the deep end” when confronted with cases of possession of cannabis. Correctly interpreting the 1971 Misuse of Drugs Act’s main provision, he said Parliament had drawn a distinction between possessors and traffickers. Magistrates should therefore treat users of what he called “soft drugs” with “becoming moderation”. They should and take care over ascertaining the background. It would be quite different when large parcels of cannabis were discovered, when a deterrent sentence would be justified.

Hailsham advised the magistrates to distinguish between what he termed “retail and wholesale trade”, and between transactions among neighbours “in the way of social intercourse” and transactions where money changed hands—expressing the curious belief that such neighbourly transactions did not involve money. He advised them “Do not lose your heads as judges because the drug is new to your experience and has a sinister ring”. In the same speech he helped the transformation of the illegal drug user from culpable criminal to pitiable victim by insisting that “the addict must be treated as a human being”.

He wound up his declaration of peace by saying “Don’t let your prejudice, if you have one, against the offence, lead you to deal unduly harshly with the offender”. (The Times, 13 October 1973, p 3 column a)

He gave this speech just as the 1971 Misuse of Drugs Act was about to come into force. This Act was the consequence of the 1969 Wootton Report, the prototype of every subsequent inquiry into drugs in this country.

It is widely believed that the Wootton Report called for Cannabis legalisation and was denounced and rejected by the then Home Secretary, Jim Callaghan. In fact it did not call for any such thing. And—though Mr Callaghan did indeed denounce the report in Parliament—most of its provisions, much desired by the powerful and influential establishment pro-Cannabis lobby which had taken out a famous advertisement in the Times, were in fact incorporated by Mr Callaghan into a planned Misuse of Drugs Bill in 1970. This fell, thanks to the 1970 General Election. But so important was it considered that the incoming Conservative Government immediately revived the Bill, in identical form, and it was quickly passed through all its stages with more or less bipartisan support (The then William Deedes being rather keener on it than James Callaghan). Mr Callaghan’s Cabinet defeat on this issue is recorded in the Crossman Diaries (Jonathan Cape, London 1979, One Volume edition, p 613) and in Cabinet papers (CC70, 10th Conclusions, pp 10–11). It took place on Thursday 26 February 1970.

The crucial changes were the separation of cannabis from heroin, Cocaine and LSD, and its treatment as a supposedly “softer” drug, and the establishment of the rule that trafficking should in future be treated more seriously than possession. The absolute offence of allowing drugs to be used on one’s premises was also to be abolished. A permanent committee was also to keep the law under perpetual review, as it still does in the shape of the Advisory Council on the Misuse of Drugs. This arrangement has not generally led to the tightening of the law. But it is not just the law itself that is changing. It is the way in which it is enforced.

Next, in 1976, the maximum penalty for cannabis possession was once again reduced by half to three months—one month less than the maximum proposed in the Wootton Report.

“In 1979 the Advisory Council on the Misuse of Drugs (the statutory successor to the Advisory Committee) proposed further reforms whose effect would be to remove the remaining powers of the courts to sentence offenders to imprisonment. These proposals were reiterated in a second expert Report on Cannabis, in 1982. The response of the Thatcher government was to move in the direction of decriminalisation by introducing cautioning and compounding (small on the spot fines for smuggling). By the beginning of the 1990s, the majority of cannabis offenders were cautioned and thus escaped without a criminal conviction. Cases which do reach the courts normally result in discharges or small fines. Sentencing guidelines prevent imprisonment of minor offenders.”

“When The Times finally came out for legalisation of cannabis, on the 25th anniversary of the Soma advertisement, the leading article said, correctly that “the law against cannabis is all but unenforced.” (Stephen Abrams, The Wootton Report, 2007).

“The situation in 90s Britain is that sentences such as those passed on Hoppy [John Hopkins, leading counterculture figure in 1960s London, sentenced to nine months in prison for cannabis possession, June 1967] or Keith [Richards, sentenced, also in 1967, to one year for allowing premises to be used for consumption of drugs, later overturned on appeal by the lord Chief Justice] are virtually unknown unless large scale dealing is involved or the sentence is concurrent with another, more serious charge and has been used to make the other charge stick … the members of Baroness Wootton’s committee must be thanked for changes in the law that have kept thousands out of jail” (“Many Years From Now”, a biography of Paul McCartney, Barry Miles, Secker and Warburg, 1997).

“Cannabis has been a decriminalised drug for some time now. Although still illegal, somebody found by police in possession of a small amount for their own use will probably just get away with a caution these days. There is no record taken, no evidence that anything has occurred.” (John O’Connor, former head of Scotland yard Flying Squad, article in The Daily Express 15 February 1994).

And then. Who said this?: “Well, it’s worth saying that of the offences against the Misuse of Drugs Act—these are very round figures as I don’t have them to hand—of the 120,000 offences against the Misuse of Drugs Act every year, 90% of those which are dealt with are possession offences and three-quarters of those are cannabis possession offences. Now over half of those cannabis possession offences are cautions (my italics) but it is worth remembering that a caution does bring with it an entry as a criminal record.”

And “The police have been very sensible in many ways about their approach to policing the Misuse of Drugs Act. I think without their massive use of discretion, it would have ground to a halt.”

Later still, she says “At the moment, until our law changes, we have after all for personal use—in theory on the statute book—five years potential imprisonment for a simple possession of cannabis. Now that, I think I am accurate in saying, is more harsh than almost any other country in Europe. I am not aware that there has ever been a prison sentence of anything approaching that for the simple possession of cannabis. In fact, the average length of a custodial sentence for any possession, including heroin and cocaine, is four months at the moment whereas for heroin and cocaine you could get seven years in theory. So there is a huge gap. One of the good things about the Home Secretary’s—as it was stated—possible intention is that it will close the gap between what the law says and what it does.”(My italics).

(Dame Ruth Runciman, Chair of the Police Foundation Independent Inquiry into Drugs, 1997–2000, speaking to a BBC News Talking Point Forum, 25 October 2001)

We should also include a word here from Baroness Wootton herself, in a letter she wrote to The Times in March 1977, responding to an article by Ronald Butt saying that Mr Callaghan had rejected her report. She said: She wrote: “Why, I wonder, has Mr Ronald Butt chosen this moment (March 17) to give thanks to Mr Callaghan for his rejection, when Home Secretary eight years ago, of the allegedly pernicious recommendations of what has become known as the Wootton Committee on Cannabis?”

“Is Mr Butt unaware of all that has happened since then?” While conceding that cannabis may possibly have long-term risks comparable to those of tobacco, she proclaimed “There has been a great change in the climate of Western opinion about the moderate use of cannabis and the proper scope of legislative action in relation to this”.

“Most remarkable of all is Mr Butt’s failure to notice that Mr Callaghan himself is moving with the times. The Government of which he is the head has just presented to Parliament a Criminal Law Bill which would halve, by a reduction from six months to three, the maximum sentence which a magistrates’ court can impose for possession of cannabis.”

“Contrary to what is widely believed, neither my committee nor I have ever advocated the legalisation of cannabis. But the Government’s new proposal would bring the penalty for summary conviction of possession actually below (Lady Wootton’s italics) the level recommended by the infamous Wootton Committee. (Letter to The Times from Baroness Woottton of Abinger, published 21 March 1977)”.

And finally, “By 2009, cannabis possession was even more decriminalised than it had been in 1994. In that year (the latest for which I have been able to obtain these very hard-to-find figures) 162,610 cannabis cases were handled by police in England and Wales. Of these, 19,137 cases were dealt with through police “Cautions”, which expire after three months and need not normally be declared to employers—a way of dealing with cannabis which dates back to 1991. 11,492 resulted in penalty Notices for Disorder, an on-the-spot rebuke which generally results in no punishment of any kind, which are recorded indefinitely. A mere 22,478 cases actually ended in court and many of them did so because they were only one of several charges against the defendant. The outcome of several thousand more arrests was simply not recorded and cannot be traced, an extraordinary fact in a modern, computerised country.

But the most significant and interesting figure was that 86,953 were dealt with by a procedure known as a “cannabis warning”. This is a curious anomaly. Though it is recommended as the preferred response by the Association of Chief Police Officers of England and Wales (ACPO), it has no legal status.

It is not recorded centrally. A person could receive such a warning in several different jurisdictions, without the information being shared. It does not create a criminal record. No Act of Parliament mentions it. How did this highly significant legal change come about? I asked several government departments and the ACPO. They were unable to give me a clear answer.” (extract from Manuscript of my own forthcoming book, “The War We Never Fought”).

I would be more than happy to go into this at greater length and greater detail, and to answer questions on it.

February 2012

Prepared 8th December 2012