102.As we saw in chapter 3, the clear majority of our witnesses were critical of the criminal justice approach to problem drug use, arguing that it perpetuates stigma, marginalises people with problem drug use, and increases the harm caused by substance use. As a result, many witnesses advocated decriminalisation. Decriminalisation means that the possession of small amounts of drugs for personal use is no longer a criminal offence. Criminal penalties can be replaced by civic or administrative penalties such as fines or community service. Sometimes those found in possession of drugs are required to attend some form of treatment or education. However, the sale or supply of drugs remains a criminal offence under decriminalisation.
103.We heard from a number of proponents of decriminalisation, who argued that criminal justice sanctions are ineffective, costly, and increase the harms associated with substance use. Criminalisation increases the stigma associated with drug use, making it less likely that people will seek support. Custodial sentences can also exacerbate problem drug use and decrease the chances of successful recovery. Advocates for decriminalisation argue that the best way to prevent this harm is to remove the criminal sanction for the possession of small amounts of drugs, telling us that “the evidence is clear that it works”. This was also the view of law enforcement professionals, as well as academics and healthcare professionals. Assistant Chief Constable Johnson, Police Scotland, argued that the Home Office’s criminal justice policies are “deleterious [… in] pushing people into a place where there is more harm”. He went on the say that:
If our first duty is to save life, then there is a clear tension, isn’t there, between upholding the law that says mere possession of a tiny amount of a substance should lead to either a police warning or an arrest that puts somebody into custody, which potentially exposes them to more drugs or different sorts of drugs within the prison system, which then puts them back out into society where the inequalities or health issues that have probably led to them taking the drugs [… This] will unfortunately for most of them mean at some point they are going to die.
104.Throughout our inquiry we heard from many people who are recovering from problem drug use whose first-hand experience supported this assessment. Hannah Snow served a number of custodial sentences for drug-related offences, and explained that in her experience criminal sanctions are “not a deterrent”, and they do not address the root causes of substance use:
What benefits are you getting from sending a known drug user into prison to do a drug sentence, who will get released to do the same thing? Enforce an order that has to put them through a recovery-based programme, instead of putting them into a criminal procedure programme where the cycle just starts again. If you go up in court for drug use, and you are then forced to go to a recovery programme, you have a better chance of changing your life in that than you do of changing your life in prison.
105.Portugal was frequently cited as the main example of a country which has successfully introduced decriminalisation. In 2001 Portugal decriminalised the possession of all drugs for personal use in response to their own drugs crisis, with over 1% of the population addicted to heroin, and the highest rate of drug-related AIDS in the European Union. Decriminalisation in Portugal was part of a wider harm reduction approach which saw drug prevention and treatment services scaled up, improvements in public health education, and an increase in enforcement action against the supply of drugs. As a result of these reforms, the number of drug-related deaths in Portugal fell from 80 in 2001, to 30 in 2016. This equates to 4 deaths per million in 2017, which is lower than the most recent European average of 22 deaths per million. There has also been an 80% reduction in the country’s HIV infection rate. Some Members of this Committee visited Portugal, on a joint visit with the Health and Social Care Committee, as part of our inquiry. Our delegation was impressed by Portugal’s comprehensive approach to the health and social issues surrounding substance use, the country’s focus on early intervention, and the role of the Dissuasion Committee in ensuring those found in possession of drugs can be given access to education and treatment.
106.Decriminalisation can also allow for better targeting of resources to tackle the root causes of problem drug use, by moving spending away from enforcement of possession offences to health interventions. The campaign group Release said that decriminalisation in Portugal allowed resources to be “diverted from the criminal justice system into health and other services for people who use drugs”. Others similarly argued that decriminalisation in Portugal “was the ‘critical enabler’ that released additional funding for treatment and allowed a more integrated health-based approach”. Professor Matheson highlighted that Portugal, even after redirecting resources to health, education and other law enforcement efforts, had seen “an 18% reduction in costs overall to society as a result of their approach”.
107.However, witnesses were clear that decriminalisation alone is not the answer to problem drug use, and it must be implemented alongside a wider package of reforms, including health, social and economic measures. Professor Stevens explained that decriminalisation worked in Portugal because it did not just decriminalise drugs:
It expanded the treatment system substantially, mostly through getting more people into drug substitution treatment at a low threshold. They also improved their welfare system. They introduced a guaranteed minimum income, and the whole point of the whole package of measures, which included decriminalisation, was to reintegrate or, indeed, integrate people into society.
This point was reiterated by most of the witnesses we heard from who supported decriminalisation. The Health and Social Care Committee also pointed to the example of Portugal in their recent report, and recommended that the Government should consult on the decriminalisation of drugs for personal use. The Committee, mirroring arguments made by many of our witnesses, said that that decriminalisation must go alongside improving treatment services and increasing the provisions of education, prevention measures and social support.
108.The Scottish Drugs Forum told us that, considering the evidence of the effectiveness of decriminalisation, the UK Government’s current approach “is hard to justify”. We also heard support for decriminalisation from police representatives from across the UK. Assistant Chief Constable Steve Johnson, Police Scotland, Detective Chief Inspector Jason Kew, Thames Valley Police, and Detective Superintendent Kevin Weir, Durham Police, all indicated their support for decriminalisation. ACC Johnson, for example, said:
Any suggestion of decriminalisation and legalisation is always met with, “It’s the police going soft on drugs”. It is far from that. It is actually the police being very pragmatic about the nature of the harms that are experienced within the communities.
Professor Alex Stevens, University of Kent, argued that the police representatives’ views were particularly poignant:
We have just heard from senior police officers with a wealth of experience that they can no longer toe the Government line, which is that we need to criminalise people to send a message to reduce harm. We have heard from these senior police officers that that just does not fit with their professional expertise.
109.Although the vast majority of the evidence we heard supported decriminalisation, we heard dissenting views. The UK Government has previously said it opposes decriminalisation for the same reason it objects to safe consumption facilities; that it wants to “send a clear message” that controlled drugs can be harmful, and that they must therefore be subject to a “commensurately strict regime”. In response to a public petition to hold a referendum for the liberalisation of cannabis laws, the Home Office justified this position on the basis that liberalisation:
Would send the wrong message to the vast majority of people who do not take drugs, especially young and vulnerable people, with the potential grave risk of increased misuse of drugs.
Professor Alex Stevens argued that the Home Office’s position is contrary to its own evidence base. He claimed that, even though the Government accepts that criminalisation does not work, the Home Office “wants to put forward that it has a tough approach to drugs, and that any loosening of control would be in conflict with that”.
110.In oral evidence to us the Home Office minister reiterated that he is “not supportive of the decriminalisation push”. The minister argued that criminal justice sanctions “have to be a tool that is available, particularly for persistent drug users and for those who commit other offences”. Mr Malthouse MP also took issue with the oft-cited example of Portugal as a country which has successfully implemented decriminalisation. The minister argued that the success of Portugal’s approach is attributable to the “enormous amounts of money” invested in treatment, recovery and education. The minister is correct to say that there was a significant increase in funding for drug-related health intervention in Portugal following decriminalisation. However, we heard during our visit—and from other witnesses—that this increase was only possible because of the savings made through decriminalising drugs. We also heard that decriminalisation had other positive effects, such as reducing stigma and encouraging people who use drugs into treatment. During our visit to Portugal it was also made clear to us that decriminalisation itself was the “prime” change which fuelled progress.
111.The Scottish Government told us that if the UK Government will not decriminalise drugs across the whole of the UK, then drugs laws should be devolved to allow the Scottish Parliament to take this approach. When this proposal was put to the UK Government, the Home Office minister told us that having two different regimes on drugs would present “significant challenges”, including issues around policing a single UK border. He also said different regimes would create “an open market for gangs to run drugs into a less-regulated market in Scotland”, and that existing problems with ‘county lines’ would be exacerbated.
112.Dr McKeganey also opposed decriminalisation arguing that it was likely to increase the use of drugs and therefore increase harm. Dr McKeganey raised particular concerns about potential increases in the availability and use of heroin in Scotland, which should encourage policy makers to be “very cautious” about initiating policy which could result in the availability of drugs increasing. However, Dr Bancroft took issue with this, and argued that a distinction should be drawn between a potential for increased recreational drug use, and increased problematic drug use.
113.We also heard that there is some evidence from international case studies suggesting that decriminalisation can have negative consequences. The Czech Republic and the Netherlands were raised as examples of countries where drug liberalisation reforms led to increased visibility of drug markets, an increase in public order offences, and community disruption due to tourism. In both cases, some aspects of the liberalisation reforms were subsequently reversed. On the other hand, Dr McAuley argued that evidence from Portugal shows decriminalisation:
Has certainly not increased the size of that market [… Instead] there are fewer people using drugs problematically and a massive reduction in levels of harm among those that are. The evidence is clear that it works.
114.Decriminalisation of the possession of drugs for personal use is an evidence-based solution to problem drug use. There is a strong case for doing this across the UK, as decriminalisation is proven to address the root causes of problem drug use. Decriminalisation would also allow the Government to focus efforts and resources on tackling the drug supply chain and providing services to support people who use drugs into recovery.
115.Despite the current legal context there are some areas of the UK where de facto decriminalisation is currently taking place. De facto decriminalisation means that drug possession is effectively decriminalised. The laws making drug possession an offence remain in place, but a decision is taken not to take legal action, and divert offenders towards treatment or civil penalties instead of criminal sanctions. We looked at two such systems, operated by Durham Police and Thames Valley Police, to further evaluate the effectiveness of decriminalisation and see whether its benefits could be delivered under the current legal regime.
116.Thames Valley Police have run a pilot scheme whereby eligible individuals found in possession of drugs are offered a community resolution outcome, such as referral to a drug treatment provider, instead of being prosecuted. If the person declines this, they are dealt with via traditional criminal justice routes. If they accept, their details are passed to the drug service provider who arranges for an appropriate intervention. The police then liaise with the drug service provider to ascertain whether the individual has engaged with them or not. If the conditions of the referral are broken, then the individual would subsequently be charged with a possession of drug offence.
117.Initial assessments of the pilot’s effectiveness show that 53% of all drug cases were diverted to treatment, and nearly half of the individuals diverted completed the full treatment programme. Most referrals (76%) are for possession of cannabis. Thames Valley Police say that without a diversion scheme, 84% of those who were sent for treatment would have received a sanction that would likely not have addressed the reasons for their drug use. The scheme has also delivered sizable cost savings, with Thames Valley Police estimating that 944 Sergeant and Constable hours would be saved over the course of a year, equating to £26,976 of savings for the small local police area where the pilot was conducted. Detective Chief Inspector Jason Kew, Thames Valley Police, told us that the effectiveness of the scheme is “robust, proven and evidenced”, and that it “create[s] better outcomes for the person, better outcomes for the police, [by] freeing up resources”, which can then be put into harm reduction and education.
118.Durham Police have been running a similar voluntary adult offender diversion scheme—‘Checkpoint’. Under the scheme, eligible drug-related offences are classed as a ‘deferred prosecution’, which can be invoked at any point for four months after the offence is committed, should the offender breach the conditions of the deferral. The programme has been running since April 2015. Initial evaluations of effectiveness suggest that the deferred prosecution model reduces the level of re-arrests, reoffending, harm, and cost to police, compared with traditional criminal justice processes. Superintendent Weir, Durham Police, told us that the scheme is improving the life chances of those who come into contact with the criminal justice system for drug-related crimes.
119.Professor Stevens noted the significance of the approaches taken by the two police forces. He said:
I think this is fascinating, because what we are hearing is the police creating ways to reduce the harm that is being done by the Misuse of Drugs Act, with police at local level saying, ‘If we fully implemented this law of criminalising everyone who we find in possession of these substances, we would be creating harm, so in the interests of serving our communities we are not going to create those harms, we are going to find ways of not doing that’.
120.Kit Malthouse MP, the responsible Home Office minister, was supportive of these schemes, calling Durham’s Checkpoint scheme “a wholly laudable project”, adding that “if it results in an overall reduction in crime and offending, it seems sensible to me”. The minister also appeared relaxed about the prospect of de facto decriminalisation schemes being implemented more fully in Scotland. However, this apparent support for de facto decriminalisation did not extend to statutory decriminalisation. The minister said he is “not supportive of the decriminalisation push”.
121.Police Scotland have offered Recorded Police Warnings (RPW), as an alternative to prosecuting some drugs offences for a number of years. RPWs can be issued to anyone over the age of 16 for a range of low-level offences. RPWs are often provided on the condition that individuals voluntarily present themselves to addiction treatment services. In 2017–2018, 17,291 RPWs were issued, and 77% of these were for a category of offence which includes drug possession. Police Scotland have argued that the RPW system offers “a consistent, swifter, more effective and proportionate way of dealing with low-level offences”, which reduces the strain on the criminal justice system. Unfortunately there is no detailed evaluation of RPW in Scotland. However, evidence is available from Australia where all eight states now have forms of diversion scheme, education and/or treatment. A review of reoffending in prior offenders, found a decrease in re-offending ranging between 52.8% in Tasmania and 66.3% in Victoria.
122.We heard calls for the current RPW system in Scotland—which is currently limited to cannabis—to be extended to all other drugs. It was argued that this would deliver many of the benefits of decriminalisation, but without requiring legislation change at UK-level. Martin Powell, Transform, told us:
In terms of what more could be done at the moment, the police use recorded police warnings for cannabis […] we would like to see those expanded to include all other drugs.
Dave Liddell, Scottish Drugs Forum, supported this proposal, arguing that “within the existing framework we can deliver decriminalisation in Scotland through record warnings”. In written evidence, Release similarly argued that the approach taken in Portugal is possible in Scotland, “if there is multi-agency agreement to divert people away from the criminal justice system”. The Lord Advocate confirmed he had the discretion to decide whether the RPW system is expanded to include additional drugs , and an expansion would not require any legislative changes. ACC Johnson, Police Scotland, also expressed support for considering implementation of a wider diversion scheme similar to those used by Thames Valley and Durham police forces.
123.However, we also heard that the de facto approach presents difficulties. Professor Stevens argued that the advantage of fully decriminalising drugs through the law is that:
You are reducing this ambiguity and helping the police, giving them some clarity both at the individual officer level and at the service level, as to what the Government and the public want us to do about drugs that does reduce harm rather than increasing the harms of this vulnerable population.
These are the same kind of difficulties we discussed when looking at whether safe consumption facilities could be delivered under the current legal framework. Anything short of full legal decriminalisation presents a legally ambiguous context in which police officers can be put in the “invidious position” of deciding whether to apply the available decriminalisation disposals, and does not provide certainty about how these issues will be treated in future, as policing and prosecuting policy can change more quickly than legislation.
124.The Lord Advocate also argued that such radical changes—whether it’s decriminalisation of drugs or the introduction of safe consumption facilities—should be introduced only after a “democratically accountable consideration of the policy issues”. The Lord Advocate added that it is “absolutely” the responsibility of Westminster or Holyrood to change the legal frameworks, rather than it being his responsibility to create legal “loopholes” to work around the existing law.
125.We support the innovative approaches to decriminalisation taken by police forces across the UK, but believe that statutory decriminalisation is a preferable solution which removes the legal ambiguities inherent in non-statutory approaches.
126.We also believe that decriminalisation should be implemented by elected and accountable politicians. Whilst we are encouraged to hear the Home Office minister tacitly supports de facto decriminalisation schemes in the UK, it is unclear to us why the Government has not implemented diversion as a UK-wide policy, and has chosen instead to leave this difficult issue to local police officials. It is also not clear why the UK Government is supportive of de facto decriminalisation, but will not support statutory decriminalisation. The UK Government must be clear on its policy and be accountable for its decisions.
127.We recommend that the UK Government decriminalises the possession of small amounts of drugs for personal use across the whole of the UK and should consult on how this could be rolled out in practice. As a transitionary approach, the Home Office should encourage all police forces across the UK to introduce diversion schemes. If the UK Government does not decriminalise drugs, this will only strengthen the case for the devolution of drugs laws.
128.We heard that decriminalising the possession of drugs for personal use would not legalise the supply of drugs and could allow resources to be freed up to target drug supply operations. For example, ACC Johnson, Police Scotland, argued that decriminalisation means law enforcement efforts can be focused on “the suppliers, the importers and those who are causing the harm”. Dr Tweed pointed to Portugal’s experience of using savings from decriminalisation to more aggressively tackle the supply chain, and claimed this shows that decriminalisation and law enforcement are not mutually exclusive.
129.The level of co-operation between UK and Scottish police forces in addressing the supply of drugs was raised several times by the Committee throughout our inquiry. In their written evidence, the National Crime Agency (NCA) told us that they have an “effective and successful relationship with our Scottish law enforcement partners” through its Organised Crime Partnership (OCP).
130.The NCA described the OPC, created in September 2018, as a “step change in our joint mission to identify and investigate those involved in serious and organised crime in Scotland”, and said that in the 11 months to March 2019, OCP investigations led to the arrest of 28 individuals, the recovery of 47kg of Class A drugs and 55 firearms, as well as the seizure of £138,990 cash. The NCA also highlighted the role of the OCP in disrupting the sale of drugs through social media sites, and its work to combat the smuggling of drugs into the UK through Scotland.
131.The Home Office minister also highlighted the importance of a strong relationship and intelligence sharing between Police Scotland, the NCA and Border Force. He said that while policing is a devolved matter, the link between Police Scotland and these national bodies were “good and strong” and that “if Police Scotland wanted to do more on supply […] we would be very supportive of that”. He also raised concerns that decriminalisation in one part of the United Kingdom and not in the other, would make tackling drug import and supply more difficult.
132.We welcome the high level of co-operation between the UK and Scottish law enforcement agencies to address the supply of drugs, as well as the Organised Crime Partnership which has strengthened joint efforts to combat drug supply. However, we are not convinced by the minister’s argument that decriminalisation, in Scotland or the whole of the UK, would undermine these efforts, as the decriminalisation of possession for personal use would not alter the illegality of organised crime groups supplying illicit drugs, which this joint work seeks to address. Decriminalising drugs could free-up resources which could be put into efforts to combat supply and import of drugs.
133.Some witnesses advocated going further than decriminalising drugs, by legalising them. This would make it legal to buy, sell and tax drugs. Canada and the Netherlands have taken this approach and have developed regulatory frameworks for the sale and taxation of cannabis. Dr Iain McPhee argued that legalisation allows for the regulation and control of drugs (which decriminalisation does not). He said:
If we are truly committed to reducing harm through a public health framework and challenging the criminalised elements, which stigmatise and discriminate against users, then we should be regulating and controlling and not leaving it to the hands of people who care very little about the consumers to whom they are the main vendors.
134.Dr McPhee argued that a substantial number of drug-related deaths are a result of the consumption of drugs which have been “cut” with unsafe substances, and that only legalisation fully allows for “standardisation and quality control”, which would reduce drug-related deaths. Law Enforcement Action Partnership UK (LEAP UK), supported this point, and called for legislation to be accompanied by “a range of regulatory models for all drugs that focus on quality control, child protection, and taxation to fund education and treatment services”. Such regulatory models would be designed to ensure the safety and quality of drugs which, under the current prohibition model, are often lacking “health and safety information, and are of unknown (and variable) strength and purity, increasing risk of overdose, infection and poisoning”. Transform told us that there are numerous examples of successful drug production and supply regulation models around the world, which the UK could learn from.
135.We heard that one of the benefits of legalisation over decriminalisation, is that legalisation takes drugs out of the hands of criminals. Jim Duffy argued that although decriminalisation removes the criminal penalties for drug possession, it does not remove the incentive for serious organised crime groups to traffic and trade illegal substances. However, if regulated drugs are available legally, it was argued that significant financial pressure would be put on criminal gangs, as revenue from drugs is diverted to state-funded services:
Last year, the state of Colorado sold $1 billion worth of recreational and medicinal cannabis […] that [is] $1 billion in total that did not go to criminals, that did not go to the black economy, that did not fund people trafficking, child prostitution, counterfeiting, all those other things that organised crime does.
We heard that the cannabis industry alone in the UK alone is worth £6 billion a year which, under a legalisation regime, could be diverted to treatment or drug trafficking enforcement services.
136.Finally, Dr Angus Bancroft argued that legalisation also has an advantage over decriminalisation in how it separates problematic drug markets, and “cuts out the tendency to move on to other drugs”:
One issue in the way in which people move from, say, Ecstasy to cocaine to an opioid will sometimes be that the person selling it also has that other drug for sale, so they are in the same place and they are available or they have other kinds of connections through that. One possibility for legalisation might be to separate that.
137.During evidence sessions some Members explored with witnesses concerns that legalisation would increase exposure to drugs, not address the root causes of problem drug use, and create a “gateway” effect to harder drugs. We also explored the possibility that legalisation might cause an increase in drug-related harm and fatalities, due to the perception that “because it’s legal, it’s therefore safe to take”. Dr McKeganey expressed such concerns, and opposed legalisation for the same reason that he opposed decriminalisation—namely, that it would “inevitably” result in increased drug use:
I say “inevitably” because those who were inclined to use those substances when they were illegal will clearly continue to use them when they become legal and those who were disinclined to use them when they were illegal will be more inclined to use them if they become legal.
Dr McKeganey added that he felt the “sheer increase” in the prevalence of drugs caused by legalisation would also generate “an increased range of problems”, including a “a very substantial” increase in the use of heroin. Dr McPhee recognised that legalisation may result in a short term “spike” in people trying drugs, but added that this spike may level-off in due course. Dr McKeganey also argued that the legalisation of drugs would create the “very real risk” of a commercial industry developing comparable to the UK’s alcohol and tobacco industries. However, Dr McAuley countered this point, arguing that legalisation does not increase the size of drugs markets. Drawing on international examples, Dr McAuley said:
It has certainly not increased the size of that market, which is a lot of what people perhaps thought the unintended consequence of […] legalisation would cause, that there would be much more people using drugs and much more people experiencing levels of harm. The evidence […] is the exact opposite.
138.Dr Ian Oliver shared many of Dr McKeganey’s concerns, and told us that the belief that legalisation would limit the potency of drugs and take them out of the hands of criminals is “naïve”, and demonstrates “no realisation that criminals will continue to operate, target young people in particular, and offer more potent drugs to all willing customers”. However, Dr Bancroft argued that legalisation has the opposite effect, by removing individuals’ contact with drug dealers, and thereby removing an opportunity for dealers to introduce people to harder drugs. Indeed, both Dr Iain McPhee, University of the West of Scotland, and Vicki Craik, Crew 2000, agreed with Dr Bancroft that legalising drugs would reduce harm. Witnesses also agreed that there are workable, evidence-based proposals, which draw on successful international examples of legalisation, for how a properly regulated drug market could operate in the UK.
139.Whilst we heard that the legalisation of drugs would deliver more benefits than decriminalisation, decriminalisation alone would be a radical departure from the Government’s current approach to drug policy. We therefore believe that the Government should focus on delivering decriminalisation.
285 Scottish Parliament Information Centre, , March 2017
291 European Monitoring Centre for Drugs and Drug Addiction,
295 Release ()
296 Transform ()
300 ; ;
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302 Health and Social Care Committee, , HC 143
303 Scottish Drugs Forum ()
307 Letter from the Home Office to Glasgow City Council, obtained by Committee team
308 UK Government and Parliament,
314 ; ;
315 ; ;
325 Policing Strategy Unit ()
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341 Release ()
350 National Crime Agency ()
351 National Crime Agency ()
352 National Crime Agency ()
357 Law Enforcement Action Partnership UK (LEAP UK) ()
358 Transform ()
359 Transform ()
373 Ian Oliver ()
Published: 4 November 2019