GOVERNMENT REPLY TO THE REPORT OF THE INDEPENDENT
INQUIRY INTO THE MISUSE OF DRUGS ACT 1971
1. The Government welcomes the report of the
Committee set up by the independent Police Foundation, which contributes
to the ongoing process of assessing the effectiveness of our drugs
laws and policies. Tackling drug misuse is a key priority for
this Government, and now being implemented through the ten year
National Strategy launched in 1998.
2. The Misuse of Drugs Act 1971 is the main legislation
controlling the misuse of drugs in this country and the legislation
underpins the Strategy. It is important to ensure that it continues
to serve its purpose. The Inquiry's report goes beyond legislative
proposals and it should be remembered that, while the United Kingdom
Government is responsible for the subject matter of the Misuse
of Drugs Act 1971, the devolved administrations are responsible
for prevention, education, treatment, rehabilitation and other
aspects of enforcement.
3. Following publication of the Inquiry's report,
the Government asked Keith Hellawell, the United Kingdom Anti-Drugs
Co-ordinator, to chair a committee to review its recommendations.
This committee's membership was drawn from across Government and
key agencies. Five meetings were held between 28 June and 30 August.
The committee recommended support of 24 of the recommendations,
rejection of 37 and referral of 20 for further consideration by
relevant Government departments and agencies.
4. The Government does not support the Inquiry's
recommendations on the re-classification of cannabis, ecstasy
and LSD. The Government announced this shortly after the publication
of the report. The reasoning is set out below. But recognising
that the consideration of so thorough a report would take some
time, the Government felt it was important not to allow possible
speculation about its attitude to these particular recommendations.
5. This memorandum responds to the recommendations
in chronological order except where obvious linkages make it sensible
to take a number of recommendations together.
Recommendation 1. The information research base
should be given renewed attention. In particular:
6. The Police Foundation is quite right to identify
the importance of a sound information and research base to inform
the National Strategy. It is a key priority of the Strategy to
improve our level of information and the robustness of the evidence
base. This will enable us to measure and monitor progress toward
the aims of the Strategy and make best use of our resources.
7. A major new research programme, funded mainly
through a ring-fenced allocation of £6million over three
years, was started in 1999/2000. Better and shared information
systems will be put in place to show more definitively what the
drug problems are and what works best against them. The primary
aim of the research programme is to track the progress of the
Strategy in terms of key performance indicators. In addition,
the devolved administrations and Government departments (as part
of their departmental policy research) also support the Strategy
objectives. For example, the Department of Health are investing
£2.4million over five years in a major new research initiative
into the prevention and treatment of drug misuse and £½
million into the research on Hepatitis C in drug misuse. Other
examples of progress, more from a Home Office perspective, include:
- The rolling out of the NEW-ADAM programme
of research into drugs-crime connections, involving eight locations
a year (New English and Welsh Arrestee Drug Abuse Monitoring,
with voluntary urine testing of suspected offenders).
- The initiation of substantial programmes of research
into prevalence estimation and drug use by vulnerable groups.
- The development of a programme of research into
the 'supply-side'; with initial reports due for publication next
year on (i) total annual consumption of drugs in volume and expenditure
terms and (ii) the 'middle-market' of the supply chain.
Recommendation 2. The present classification
of drugs in the Misuse of Drugs Act should be reviewed to take
account of modern developments in medical, sociological and scientific
Recommendation 3. The main classification
criteria should continue to be that of dangerousness.
Recommendation 4. The chronic health risks
from each drug should be kept under continuous review.
Recommendation 5. A model of three classes
offered by the Misuse of Drugs Act should be retained.
Recommendation 6. There should be clear criteria
for the future to govern additions to, and transfers between,
Recommendation 14. The Advisory Council for
the Misuse of Drugs should continue to be the body that has the
statutory responsibility for considering and making recommendations
to Ministers on the classification of new drugs and for keeping
existing classes under review.
Recommendation 15. Future reports from the Council
should clearly state its methods and findings on such matters.
8. The Police Foundation's recommendation that
the Advisory Council for the Misuse of Drugs (ACMD) should retain
the statutory responsibility for advising the Government on the
classification of new drugs is very welcome. ACMD was established
by the Misuse of Drugs Act 1971. It has served successive Governments
well in the intervening period and its members, who give their
time free of charge, bring an unrivalled depth of knowledge and
experience to the Council. The Chairman of this Police Foundation
Inquiry is among the list of distinguished previous members of
9. It is part of ACMD's statutory remit to keep
drug misuse under review and the Council has always been ready
to look at individual drugs (e.g. ecstasy in 1997) on a more proactive
basis when it believes this would be helpful.
10. The criteria for guiding the assessment of any
given drug was set out in a 1996 protocol agreed by the two sub-groups
of the Council that have responsibility for pharmacological and
epidemiological assessment of specific drugs. This year, and very
much in keeping with the Police Foundation thinking, ACMD has
been reviewing this protocol and considering whether it might
be improved, perhaps by drawing upon best practice elsewhere.
A special joint meeting of these two sub-groups took place at
the end of August and there were presentations from the European
Monitoring Centre for Drugs and Drug Addictions (EMCDDA) and colleagues
from Holland. Further meetings have trialed possible variants
and have helped to developed thinking. It is hoped that proposals
for a revised risk assessment protocol will be put to the full
Council of the ACMD during 2001.
11. The Government agrees with the Police Foundation's
conclusion that the main classification criteria should continue
to be that of dangerousness and that the model of three classes
as offered by the Misuse of Drugs Act should be retained. As the
Police Foundation's report recognises, assessments of the sort
that ACMD are required to make when considering the harmfulness
of drugs must contain an element of subjectivity, but the Government
and the Council agree that reports from the Council should clearly
Recommendation 7. Ecstasy and related compounds
should be transferred from Class A to Class B.
12. The Police Foundation correctly concludes that
ecstasy is less toxic and less addictive than heroin or cocaine.
But each of the three classes within the Misuse of Drugs Act will
necessarily encompass a range and, as the Police Foundation recognise,
it is right to consider a number of factors including the effect
of misuse on society and the question of prevalence. In assessing
any drug there are various risks to consider (eg toxicity, both
short and long term; risk of dependence and risks to society).
Drugs rarely rate a high or low risk in all categories and weighing
these respective risks is not a precise science, and there will
inevitably be some room for debate over classification.
13. All too frequently in recent years, families
and friends have had to cope with the tragic consequences of young
people taking ecstasy. Ecstasy was placed in Class A on the recommendation
of the Advisory Council on the Misuse of Drugs in 1977. In 1997
the Advisory Council convened a special meeting to discuss ecstasy
following a number of deaths. Council identified that ecstasy
posed very real risks of fits, seizures, mental disturbances and
death. It also identified very worrying pointers on the longer-term
risks to mental health. And we continue to hear disturbing research
evidence of the long-term effects. In the absence of any clear
recommendation from the Advisory Council to the contrary, the
Government believes that ecstasy should remain a Class A drug.
Recommendation 8. LSD should be transferred
from Class A to Class B.
14. LSD is an hallucinogenic drug and has powerful
effects on the mind. These can last as long as eight to twelve
hours. There is no way of stopping the "trip" once it
has started. A "bad trip" is impossible to predict and
can be terrifying. Users may be prone to accidents while they
are hallucinating and they experience flash backs, often some
considerable time after the event. The drug can complicate mental
problems such as depression, anxiety and schizophrenia. As with
ecstasy, the Government would accept that the acute risks of taking
LSD are less than for heroin or cocaine but has not seen any evidence
that would suggest that it is wrongly classified as a Class A
Recommendation 9. Cannabinols such as d-9
THC should be transferred from Class A to Class C.
Recommendation 13. Herbal cannabis and cannabis
resin should be transferred from Class B to Class C.
Recommendation 61. Cannabis should be transferred
from Class B to Class C of Schedule 2 of the MDA and cannabinol
and its derivatives should be transferred from Class A to Class
15. In 1979, the Advisory Council on the Misuse of
Drugs (ACMD) undertook a review of the classification of controlled
drugs and penalties under the Misuse of Drugs Act. It was, in
particular, the debate on the position of cannabis within the
international system of control that gave rise to the review.
ACMD recommended, as the Police Foundation notes in support of
their own recommendation, that cannabis should be transferred
from Class B to Class C. What the Police Foundation does not make
clear, is that this recommendation was by no means unanimous.
In his report to the then Home Secretary, the Chairman of ACMD
"Some members' appraisal of all the available
scientific evidence so far leaves them to conclude that some alleviation
of the penalties for unlawful possession could be contemplated
at the present time without undue concern about its encouraging
increased use a possible risk to public health. Others, having
regard to reports of current, although inconclusive, scientific
investigations are not satisfied that enough is known to recommend
action which would be widely regarded as implying that the risks
of using cannabis and cannabis resin are less serious than was
believed; and which would encourage increased use".
16. As the 1998 report by the House of Lords Select
Committee on Science and Technology "Cannabis: the Scientific
Medical Evidence" notes, new research on the health effects
of cannabis is regularly coming forward. For example, we are still
learning about the health risks associated with smoking cannabis,
including the risks of cancer. Existing scientific evidence, which
fuels doubts about the health risks associated with cannabis use,
persuade the Government that it would not be right to reclassify
cannabis at this moment in time. However, the Government will
keep the evidence under review and is ready to consider any further
recommendations from the Advisory Council in the future.
Recommendation 10. The Government should encourage
the development and manufacture of benzodiazepines in combination
with an antagonist, such as flumazenil, that would block the "high"
when used intravenously, but would not affect the therapeutic
response when used orally.
17. The Government welcomes any approach to medicines
that reduces their dangers without interfering with their therapeutic
benefits or adding to their side effects. We will raise this issue
with manufacturers, initially on an informal basis. However, our
initial impression is that it is likely that there will be a number
of problematic issues about the use of Flumazenil. For example,
people who have epilepsy should not take it.
Recommendation 11. Doctors should be encouraged
to prescribe the less abused benzodiazpines and non-benzodiazepine
18. The Government agrees with this and believes
that the spirit of this recommendation is included in guidance
currently issued by the Royal Pharmaceutical Society and the British
Recommendation 12. Buprenorphine (except when
in combination with Naloxone) should be transferred from Class
C to Class B.
19. The Government will seek the views of the Advisory
Council on the Misuse of Drugs on this recommendation.
Recommendation 16. The Government should study
the United States and the Netherland systems with a view to establishing
an effective early warning system in this country.
20. The Government shares the Inquiry's views on
the importance of an effective early warning system. But the Inquiry
does not appear to take account of the mechanisms already in place.
Routine forensic examination of customs and police seizures provides
excellent early intelligence on new synthetic substances and any
changes to trends in misuse. The Advisory Council on the Misuse
of Drugs is among the recipients of a quarterly report from the
Forensic Science Service.
21. The UK is also party to a joint action by the
Council of the European Union to set up a common mechanism to
facilitate timely action to introduce controls on new synthetic
drugs. Evidence that the UK system works in practice can be seen
from the references the UK made to this mechanism in respect of
the synthetic drugs MDBD and 4-MTA. The early UK identification
of these drugs led to prompt agreement to their control by Member
22. While the UK system does not rely solely on information
obtained from forensic analysis of police and customs seizures
(eg The National Poisons Information Service and hospitals have
important roles to play too), there is a need to ensure that all
these sources are pulled together and the information disseminated
promptly to those who need to know. This is something the Department
of Health is currently considering.
Recommendation 17. The Government should set up
a detailed and in depth examination of the relationship between
the Misuse of Drugs Act 1971 and the Customs and Excise Management
23. The Police Foundation Report suggests that the
present fragmentation of the law between the two Acts is unsatisfactory.
It further suggests that this may make co-operation between the
Police and Customs more difficult than is necessary or desirable,
but accepts that it has received no specific evidence on the matter.
In fact where differences exist, for example in the area of bringing
prosecutions, this has been addressed by the establishment of
protocols between the two enforcement agencies. However, the Government
accepts that this is an area that might benefit from a more in
depth examination and proposes to establish a working group including
the Police and Customs to look at the issue.
Recommendation 18. There should be a separate
offence of dealing, the main ingredient of which would be the
pattern of activity of illicitly transacting business in drugs.
It should be capable of being charged as a continuing offence.
Recommendation 19. The new offence of dealing
should be designated a trafficking offence for the purpose of
the Drug Trafficking Act 1994.
24. The Government believes that this recommendation
demonstrates a misunderstanding of how prosecutions are handled
in practice. The intention of recommendation 18 is to ensure that
the prosecution can show that a defendant has been dealing over
a period of time. Guidance was issued to Crown Prosecution Service
lawyers in 1997, which alerted them to the need to prefer sufficient
counts on the indictment to show the totality of the criminal
conduct involved. A new offence would not in the Government's
view take matters further and would only give the defence ammunition
to argue points of law.
Recommendation 20. 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 a Class A
drug) to another member or members of that group believing he
was acting, or had acted on behalf of the 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.
25. The Government understands the wish that lies
behind this recommendation, namely to ensure that a distinction
is made between small-scale peer group supply and "professional"
dealing. But the recommendation would create very significant
problems of definition. The Report provides no evidence to suggest
that in practice the courts are unable to distinguish across the
spectrum of the supply offence, but the Government will consider
further the possibility of a sample analysis of cases. If this
gives support to the Inquiry's concerns, the Home Secretary will
consider whether the Sentencing Advisory Panel might usefully
be asked to look at the need for guidance.
Recommendation 21. Maximum penalties for trafficking
offences under the Misuse of Drugs Act and Customs and Excise
Management Act should be amended as shown in Table 4.3 on page
67 of the Report.
Recommendation 22. The penalties for other trafficking
offences, such as money laundering and illicit traffic in precursor
chemicals, should be separately considered and, if necessary in
order to achieve consistency, brought into line.
Recommendation 65. The maximum penalty for trafficking
offences for Class C drugs, including cannabis, should be 7 years
imprisonment and/or an unlimited fine. Cannabis offences would,
like all such offences, continue to attract the confiscation powers
of the Drug Trafficking Act.
26. The Government rejects these recommendations.
Trafficking offences are the most serious offences connected with
drug misuse and it is right and proper that the courts should
have a wide discretion to sentence according to the variation
of circumstances likely to be encountered.
Recommendation 23. Drug offences should be designated
as a relevant category of offence for the purposes of Sections
80 and 81 of the Crime and Disorder Act 1998 and guidelines proposed
by the Sentencing Advisory Panel for consideration by the Court
Recommendation 24. The factors set out in Chapter
4, paragraph 43, should be taken account of in such guidelines.
27. The Inquiry appears to have misunderstood the
role of the Sentencing Advisory Panel. Offences are not designated
for the purposes of Sections 80 and 81 but are made the subject
of a referral to the Panel by the Court of Appeal, when it is
seised of a guideline case, or by the Home Secretary. The Panel
can also propose to the Court that guidelines should be framed
for a particular type of offence.
28. The Court of Appeal has already issued a range
of guidance on drugs offences. The Inquiry makes no mention of
this and no evidence is offered to show that this guidance is
not being followed. The Court of Appeal recently sought specific
advice from the Sentencing Advisory Panel, under Section 81 of
the Crime and Disorder Act 1998, in respect of offences involving
opium. This was duly issued in May of this year. The Government
is satisfied that broad guidelines already exist and that the
Court of Appeal will seek the views of the Sentencing Advisory
Panel where a need is identified.
Recommendation 25. Before further consideration
is given to confiscation of assets under civil law, steps should
be taken to strengthen and make maximum use of existing criminal
29. The Government believes that a twin track approach
is needed to make sure the confiscation laws work in an optimum
fashion. Civil recovery is intended to provide a reparative measure
- taking away from individuals that which was never legitimately
owned by them. Organised crime heads use their resources to keep
themselves distant from the crime they are controlling and to
mask the origin of their assets. This can make it extremely difficult
to carry out successful criminal investigations leading to prosecution.
The need to secure a criminal conviction to enable the removal
of unlawful assets can lead to a vicious circle, whereby assets
used to fund street and drug crimes are effectively out of reach
of the law and are available to be recycled to finance more crime.
Civil recovery aims to break this cycle by removing unlawfully
acquired assets from the system, thereby disrupting criminal activities.
Given the nature of criminal activity, it is essential that broadly
similar provisions apply throughout the United Kingdom. The Scottish
Executive is, therefore, working closely with the Government to
ensure that parallel measures are implemented in Scotland.
Recommendation 26. The responsibility for enforcement
of confiscation orders should lie with the Crown Court not with
the Magistrates' Courts.
30. This recommendation has been overtaken by the
recommendations of the Performance and Innovation Unit Report
of June this year "Recovering the Proceeds of Crime".
It is now proposed that in England and Wales a national confiscation
agency should be responsible for enforcement of all confiscation
orders that it obtains, i.e. in larger and more complex cases.
Smaller cases will remain with magistrates' courts to enforce,
as there is no machinery within the Crown Court to enforce financial
orders. The National Confiscation Agency will oversee all enforcement
Recommendation 27. The time limit set for payment
of the amount named in a confiscation order should be that which
seems reasonable to the court having looked into the circumstances
and heard and tested the arguments of prosecution and defence.
31. The Government proposes that a confiscation order
should normally be payable straight away, unless the defendant
can satisfy the court that time to pay is required, in which case
up to six months may be allowed. In exceptional circumstances,
this may be extended to a maximum of 12 months. The Government's
approach will ensure that confiscation orders are paid more promptly,
whilst retaining flexibility.
Recommendation 28. The recommendations in the
Home Office Consultation Paper for improving the effectiveness
of the Criminal Law system of confiscation should be followed
up except where they are overtaken by other recommendations, particularly
32. The Police Foundation Report is referring to
Chapter 2 of the 1998 report of the Home Office Working Group
on Confiscation. This is being taken forward within the implementation
of the PIU Report.
Recommendation 29. The new National Confiscation
Agency proposed by the Home Office should be set up with the overriding
remit of ensuring that the present criminal confiscation machinery,
reformed as we propose, achieves full efficiency.
33. The Government believes that full efficiency
will be achieved by implementation of the PIU recommendations.
Recommendation 30. A considerable investment in
recruitment and training of people with the requisite skills should
be made in most branches of the Criminal Justice System, in particular
the Police, Prosecution and Courts (including the Judges).
34. The new National Confiscation Agency will include
a Centre of Excellence in financial investigation to select, train
and accredit financial investigators, both for its own requirements
and those for the law enforcement agencies. The Centre of Excellence
will also be developing training modules for delivery to the judiciary
(in consultation and co-operation with the Judicial Studies Board),
the Crown Prosecution Service and other non-specialist law enforcement
Recommendation 31. It should be possible for the
courts to order the forfeiture of property other than land seized
by the police which was clearly about to be used in the commission
of a further offence.
35. We consider that our proposed reforms to criminal
confiscation, together with the introduction of civil recovery,
will have the desired effect of depriving criminals of their ill-gotten
Recommendation 32. The law should take full advantage
of the leeway left by the United Nations Conventions to deal with
the less serious situations in a non-punitive way.
36. The existing control continuum is already flexible.
Court is very far from being the first resort in cases involving
minor drugs offences.
Recommendation 33. The maximum penalty of imprisonment
albeit on a lower scale should be retained for Class A drugs.
Recommendation 34. In the case of Class B and
Class C drugs, the present custodial penalties should be removed
and the court should develop further the non-custodial responses
available to them.
Recommendation 36. The maximum penalties for possession
offences should be as set out in Table 5.2 on page 79.
37. The Government rejects the proposed rescheduling
of penalties. Retaining imprisonment as an option is both an incentive
to treatment and allows courts to consider a wide range of orders,
including community service. Courts have already developed non-custodial
methods of enforcement, and fines can and are considered for minor
Recommendation 35. As soon as the legislative
opportunity permits, the progressive repeal of the ability of
the courts to attach treatment conditions to probation orders
in drugs cases should be reversed.
38. The report misunderstands how probation orders
in relation to offenders with drug problems were used by the courts
in the past. The Drug Treatment and Testing Order (DTTO), which
apply to England and Wales only, addresses the same target group
which the 1A6 Probation Order which preceded it was intended to
address, but in fact has failed to do. The funding we have made
available for the DTTO, on current estimates, will pay for 6,000
orders per year, as opposed to approximately 1,700 1 A6 Orders
in 1997, (the last year for which figures were available). The
DTTO is basically very similar to the 1 A6 Order it superseded
but contains some innovative requirements (regular testing and
court reviews) to increase monitoring and enforcement.
Recommendation 37. Arrestability under Section
24 of PACE should be retained for possession offences involving
Class A and Class B drugs.
Recommendation 38. Possession of Class C drugs
is not an arrestable offence at present. This situation would
not change when cannabis is transferred to Class C.
Recommendation 39. In Scotland the present powers
of detention should be retained for possession of Class A and
Class B drugs but should not be extended to Class C drugs when
cannabis is transferred there.
Recommendation 40. The Police should develop procedures
for properly recording and documenting drug seizures that take
place on the streets.
39. These recommendations, which seek to address
the operational difficulties that would be caused by the Report's
recommendation for re-classification and reduction of penalties,
fall because of the Government's rejection of the underlying recommendations.
Recommendation 41. Paragraphs (a) and (b) of Section
8 (knowingly permitting or suffering supply and production) should
be retained subject to re-drafting designed to make it clear that
the main aim is to deter those who wilfully allow others to produce
or supply controlled drugs.
Recommendation 42. "Wilfully" should
be defined as meaning "not caring whether the unlawful production
or supply takes place or not".
Recommendation 43. A person should not be regarded
as acting wilfully merely by reason of his failure to disclose
confidential records or material in respect of the persons in
Recommendation 44. Section 8 should be extended
to include the new offence of Dealing recommended at 18 above.
Recommendation 46. Paragraphs (c) and (d) of Section
8 (knowingly permitting or suffering premises to be used for preparing
opium or for smoking cannabis or opium) should be repealed.
Recommendation 66. Permitting or suffering people
to smoke cannabis on premises which one owns or manages should
no longer be an offence under Section 8 of the MDA.
40. Section 8 of the Misuse of Drugs Act 1971 recognises
as a serious offence, the connivance of those in charge of premises
who allow the unlawful production or supply or consumption of
controlled drugs to take place there. Section 8 replaces a similar
section in the Dangerous Drugs Act of 1965 and was specifically
drafted to ensure that only a person with guilty knowledge is
caught by its provisions. As currently drafted it quite properly
requires those concerned in the management of premises to accept
responsibility for taking all reasonable steps that are readily
available to them to prevent drug dealing. It is not clear what
recommendations 41 - 43 would achieve. If they are designed to
protect the occupier who does not know about the illicit activity
or who, despite his best efforts, is unable to prevent it, the
amendment is unnecessary and makes the existing protection less
clear. If, alternatively, it is designed to limit the offence
to occupiers who positively encourage such use of their premises,
it represents a significant weakening of the Criminal Law in this
area. In any event, the Government believes that it would obfuscate
the law and clarity is a crucial element in drafting of criminal
41. The reference to opium clearly reflects the age
of this particular provision of the law. But the underlying reason
for distinguishing opium and cannabis smoking from other modes
of drug consumption (e.g. oral) was that it would be clearly discernible
that such an offence was taking place. The Police wish to see
this provision of the law extended to all controlled drugs. The
Government supports this wish and will examine the options for
amending the legislation accordingly. This examination will also
cover the scope for extending the protection from wrongful prosecution
for those who work with drug misusers. If it is concluded that
legislative changes will be effective, then these will be taken
forward when a suitable vehicle is found.
Recommendation 45. Maximum custodial penalty on
indictment for premises offences involving Class B drugs should
be reduced from 14 years to 7.
42. The Government rejects this recommendation and
believes that it is right that the courts should determine the
appropriate sentence within the broad scope that the law currently
Recommendation 47. It should be a condition of
their licenses that owners and managers of places of entertainment
take measures for the safety of drug takers.
43. The Government shares the Police Foundation's
concern about drug misuse in pubs and clubs. That is why the Public
Entertainments Licenses (Drug Misuse) Act 1997 (which came into
force on 1 May 1998) was introduced following consultation with
local authority associations, ACPO and representatives of the
club trade. This Act enables a local authority to revoke or not
to renew a public entertainment licence because there is a problem
relating to the supply or use of controlled drugs in connection
with the premises - and for closure to have immediate effect.
It also gives local authorities the power, as an alternative,
to impose new conditions on the licence. Best practice guidance,
also produced in partnership with the Local Government Association,
the British Entertainment and Discotheque Association and ACPO
was issued to support the legislation.
Recommendation 48. Educational material about
the main drugs and their risks, including the risks of driving,
should be widely available at entertainment venues.
44. The Government agrees. The Home Office, the Health
Education Authority (HEA) and the voluntary sector have all produced
useful factual advice about drugs and volatile substances. "DETR's
Road Safety Strategy "Tomorrow's Roads - Safer for Everyone"
published on 1 March 2000 acknowledges that the profile of the
issue needs to be raised to highlight the risks of driving whilst
impaired by drugs. DETR is considering how those risks might be
publicised and has a comprehensive ongoing research programme.
Good knowledge, appropriate targeting and effective enforcement
would make such publicity effective overall because it would be
seen to be authoritative and there would be a real threat of getting
caught. Any message would need to be targeted towards the precise
nature and extent of the problem and would need to give positive
advice informed by well-researched knowledge".
Recommendation 49. Section 9 of the Misuse of
Drugs Act (Offences relating to opium) should be repealed.
45. The Government sees the sense in this recommendation
and, subject to the views of the Advisory Council on the Misuse
of Drugs, this is something that might be addressed when next
a suitable legislative opportunity presents itself.
Recommendation 50. Section 9A of the Misuse of
Drugs Act (paraphernalia) should be repealed.
Recommendation 51. The exemption for hypodermic
syringes currently contained in Section 9A should for the avoidance
of doubt be inserted into Section 19. It should be extended to
46. Section 9A was added to the 1971 Misuse of Drugs
Act to catch the sale of drugs kits. These were being marketed
for the sale in a range of products such as Rizla papers, razor
blades and citric acid. Section 9A (2) exempted the supply or
offer to supply of hypodermic syringes. This provision enabled
needle exchanges to supply sterile needles to drug misusers. The
Government does not believe it would be sensible to repeal Section
9A. There may be a case for adding to the list of exemptions but
it is important that, as with hypodermic syringes, that there
is a clear argument on the grounds of harm minimisation. The Advisory
Council on the Misuse of Drugs has considered on a number of occasions
in the past ten years whether the exemption under Section 9A should
be extended to include other items of paraphernalia. There has
not been a clear consensus. However, in the light of the Police
Foundation's recommendations, the Government has asked the Council
for fresh advice, to be submitted after its next meeting on 31
Recommendation 53. The main need is for quality
control and close monitoring of the outcomes of stop and search.
The aim should be to have fewer stop and searches but a higher
proportion of them with successful outcomes.
47. The Government agrees that the focus should be
on the quality of stops and searches rather than the quantity.
In response to recommendations from the Stephen Lawrence Inquiry,
the Home Office commissioned a wide ranging programme of research
to help broaden understanding of stop and search and how it can
be improved both in terms of effectiveness and fairness. This
research included pilot projects to test the practical implications
of recommendation 61 of the Lawrence Inquiry that all stop and
searches be recorded and a copy of the record given to the person
stopped. Conclusions of the research are being discussed with
stakeholders in the minority ethnic community as well as the Police
and other interested organisations.
Recommendation 55. Cautioning should become a
statutory sanction, with guidelines laid down in Regulations.
Recommendation 56. The fiscal fine system should
be introduced in England and Wales for operation by the Crown
Recommendation 57. Out of court fines should only
be used for cases that would otherwise be prosecuted and should
not replace the caution in the kind of case for which cautions
are now used. That might be ensured under statutory cautioning
Recommendation 58. It should be made clear in
legislation that cautions, reprimands, warnings, compounds and
out of court fines should not be capable of being cited in court
as evidence of the character either of the defendant or of the
witness. Section 66(5) of the Crime and Disorder Act would need
to be amended accordingly. A similar change is needed to CEMA's
provisions on compounding.
Recommendation 59. Records of cautions, reprimands
and warnings for drug possession offences should continue to be
kept on the Police National Computer.
Recommendation 60. The Secretary of State should
include information on drugs cautions, reprimands or warnings
in criminal records certificates only in the most exceptional
48. The Inquiry endorses an earlier recommendation
of the 1993 Royal Commission on Criminal Justice to place cautioning
on a statutory basis. The reasoning behind this recommendation
was to allow for national guidelines to increase consistency between
Police forces. Although there has been no legislation in relation
to adults since that time, the Home Office Circular and two sets
of guidelines from ACPO have been issued. Cautions for juveniles
have been placed on a statutory basis in the Crime and Disorder
Act by way of Final Warnings Scheme. The position of juveniles
was distinguished by their being significantly more likely to
receive multiple cautions. Although the national guidelines have
improved matters, there is still evidence of inconsistency, which
might arguably be more effectively addressed by statute rather
than further guidance. This is something the Government is considering
but this process would be better informed when we have a clear
idea of how the juvenile provisions have worked in practice. The
Government is not persuaded that a fiscal fine system, such as
applies in Scotland (which does not have a system of cautions),
49. Government does not share the Inquiry's view
that cautions should not be capable of being cited in court as
evidence. The Inquiry recognises that there is a clear need for
the Police to have access to a record of previous cautions when
making case disposal decisions on subsequent offences, and for
the courts to have access when sentencing. The existing cautioning
guidelines emphasise that the fact that a caution will be recorded
and used in these ways must be spelled out to an offender when
a caution is administered. The Government have accepted that there
is a separate problem relating to the stigma attached to possessing
a caution; for example when asked to confirm the existence of
a criminal record by a prospective employer. We have consulted
on proposals to apply the provisions of the Rehabilitation of
Offenders Act 1974 to cautions on the basis that they should become
spent immediately. The only obstacle to this change is finding
a suitable legislative vehicle.
Recommendation 62. The possession of cannabis
should not be an imprisonable offence.
Recommendation 63. Prosecution of offences of
cannabis possession should be the exception and only then should
an offence, if it results in a conviction, incur a criminal record.
An informal warning, a formal caution, a reprimand or warning
in the case of those aged 17 or under or a fixed out of court
fine should be the normal range of sanctions.
50. Custody acts as an important backstop to ensure
that defendants appear in court for a range of offences and as
a way of helping to enforce other penalties such as fines or community
sentences. Police powers of arrest for drugs possession, which
neither they nor the Government wish to see abolished, are also
dependent on these offences being imprisonable. Where imprisonment
is imposed, the courts in each case has thought it justified.
In these circumstances it would be wrong for the court to be denied
use of that which they regard as a proportionate punishment. The
practical implications of recommendation 62 were identified by
Dennis O'Connor, now Chief Constable of Surrey, and a member of
the Inquiry. In practice, as the report acknowledges, almost no
one is given an immediate custodial sentence solely for the possession
of cannabis unless there is evidence of persistent flouting of
Recommendation 64. The cultivation of small numbers
of cannabis plants for personal use should be a separate offence
from production and should be treated in the same way as possession
of cannabis, being neither arrestable nor imprisonable and attracting
the same range of sanctions. Cultivation of cannabis for personal
use under Section 6 and production under Section 4 should be mutually
51. The Government does not believe that this would
be a sensible way forward. It would pose very significant problems
of definition and there is no evidence that the Government is
aware of that the courts are not capable of distinguishing the
circumstances of any individual case.
Recommendation 67. Statutory sentencing guidelines
should include the vicinity to schools, psychiatric services and
prisons as aggravating factors for the purposes of sentencing
for trafficking offences.
52. Existing Court of Appeal guidance allows for
aggravating circumstances. The Government believes that decisions
on this sort of matter are best left to the courts. Being more
specific and including this within the statutory framework, as
the Police Foundation Report suggests, would provide very real
difficulties of definition.
Recommendation 68. Cannabis and cannabis resin
should be moved from Schedule 1 to Schedule 2 under the Misuse
of Drugs Act Regulations thereby permitting supply and possession
for medical purposes. If there is to be any delay in adopting
this recommendation pending the development of a plant with a
consistent dosage, we recommend a defence of duress of circumstances
on medical grounds for those accused of the possession, cultivation
or supply of cannabis.
53. The Government's policy on the medicinal use
of cannabis remains as set out in its response to the 1998 report
of House of Lords Select Committee on Science and Technology:
namely that it would be premature to amend legislation to allow
the prescribing of cannabis before the quality, safety and efficacy
of a medicinal form the drug has been scientifically established
and a marketing authorisation issued by the Medicines Control
Agency. This is the procedure that all prospective new medicines
have to go through. If clinical trials into cannabis are successful
and lead to a medical preparation which is approved by the Medicines
Control Agency, the Government has made it clear that it would
be willing to amend the Misuse of Drugs Regulations to allow the
prescribing of such a medicine. Guidance to the Police and Crown
Prosecution Service enable consideration to be given, in any particular
case, as to whether a prosecution in all the circumstances is
in the public interest.
Recommendation 70. There should be a very substantial
reallocation of resources and particularly an increase in the
provision of services for adolescents, women, people from minority
ethnic communities and people with mental health problems.
54. The Government's forward expenditure plans, as
announced this year by The Chancellor of the Exchequer, will mean
expenditure on the root causes of drug misuse will significantly
increase to some £996million by 2003-2004. An additional
£100 million has been made available for drug misuse in Scotland.
This represents a major new investment in resources to underpin
the delivery of the Government's challenging targets for tackling
drug misuse. The new funding will be largely focused on treatment
and prevention initiatives, in order to enhance the Government's
proactive stance against drug misuse. Extra provision for drugs
treatment over the next three years will underpin the work of
the new National Treatment Agency and pooled treatment budget.
In addition there will be more effective co-ordination of community
based prevention work.
Recommendation 71. Where a response is sought
to problem drug use, as opposed to the crime related to it, treatment
in prisons should always be considered a second best option, and
sentencers should not be attracted to it as a solution.
55. The Government has announced plans to establish
a National Treatment Agency in response to concerns about the
speed with which additional treatment capacity can be brought
and the way that treatment services are currently commissioned.
We want the National Treatment Agency to make a difference by
setting standards of treatment provision and commissioning, performance
monitoring and developing and tackling variations in treatment
standards and availability. But it is also important to use the
opportunity provided by the Criminal Justice System to identify
those people within it with the drug misuse problems and get them
into early treatment. Arrest referral schemes, Drug Treatment
and Testing Orders and the Prison Service Counselling Assessment
Referral Advice and Through Care Services (CARATS) are good examples
of such initiatives.
Recommendation 72. More far reaching research
is needed to provide a better understanding of the precise dynamics
and causal links in the drugs crime relationship and better evidence
about the factors that influence treatment effects. There is a
particular need to evaluate the cost effectiveness of different
interventions, in order to inform future decisions on distribution
of overall drugs expenditure.
56. As already mentioned, the Government recognises
the importance of a sound research base and has made significant
money available for research in support of the National Drugs
Strategy. But the Inquiry is right to identify the importance
of these specific areas, which are being addressed through the
following pieces of research:
- The drugs-crime relationship is being assessed
through the NEW-ADAM programme. The latest report, Home Office
Research Study 205, which was published in August 2000, included
authoritative measurement over time of changes in drug use and
offending, in two locations (Nottingham and Sunderland).
- Evidence about treatment effects is being gathered
through the NTORS research programme, which the Department of
Health is continuing to support, and also through a study published
by the Home Office in August, concerned with methadone maintenance
(Home Office Research Findings No.120).
- The cost effectiveness of different interventions
is receiving heightened attention. For instance, the on-going
evaluation of the effectiveness of arrest referral includes an
economic component. Also, the study of methadone maintenance,
just mentioned, included a cost effectiveness component.
Recommendation 73. A statutory framework and guidelines
covering the conditions that may be attached to a caution should
be part of the legislation that would put cautioning of those
over 17 on a statutory basis. In particular:
(i) the police should be given statutory powers
to attach conditions to a caution, including the power to charge
the offender with the original offence if the conditions are not
(ii) the power to attach conditions should be
supported by statutory guidelines making it clear what sort of
conditions are permissible and how compliance should be assessed;
(iii) the police should be given powers to release
offenders on police bail while arrangements for treatment are
made; if such arrangements are not made the offender will be charged
for the offence.
57. As the Police Foundation recognise "caution
plus" schemes provide an alternative to prosecution. Along
with Arrest Referral Schemes and DTTOs they provide a criminal
justice intervention opportunity to get drug misusers into contact
with treatment services. The Police Foundation Report correctly
identifies that the schemes are not statutory and vary between
police force areas. In order to evaluate the different schemes
in operation and to determine best practice, the Drug Prevention
Advisory Service at the Home Office has commissioned research
by South Bank University to evaluate three schemes in current
operation (Lincolnshire, Derbyshire and Tower Hamlets). An evaluation
report is expected shortly. When this report is available and
has been considered, the Government will be in a better position
to decide on the future of "caution plus" schemes and
how they should operate.
Recommendation 74. It should be made clear (by
amending PACE if necessary) that further questioning to establish
willingness to undergo treatment is permissible after the evidence
to support a charge has been obtained but it should take place
only with the suspect's agreement.
Recommendation 75. The relevant PACE code should
be re-drafted so as to draw a clear distinction between questions
to establish guilt and questions designed to establish
an offender's willingness to undergo treatment. The code could
then go on to lay down at which point each type of questioning
could take place.
58. Last year the Government announced that a total
of £20million would be provided over the three years from
1999 to 2002 to ensure that by the end of that period all police
forces in England and Wales operate a face to face Arrest Referral
Scheme to identify problem drug misusers and encourage them to
take up appropriate treatment. Rollout began in July 1999 and
already 40 of the 43 police forces in England and Wales have joined
the scheme: 22 forces are fully operational.
59. Detailed guidance on setting up effective Arrest
Referral Schemes was sent to all police forces, in a manual produced
by the Drug Prevention Advisory Service; Drugs Interventions
in the Criminal Justice System. A copy of this guidance can
be obtained free of charge from the Drugs Prevention Advisory
Service. This guidance covers the requirements of the Police and
Criminal Evidence Act 1984 (PACE) and the Codes of Practice made
thereunder. The guidance suggests, to ensure a proper distinction
between the task of bringing the possibility of arrest referral
to the attention of the suspect and the questioning of that person
regarding his or her involvement in an offence under investigation,
that it should be the Custody Officer who brings arrest referral
to the attention of the suspect, as part of the booking in procedures.
It is early days in the rollout of the Arrest Referral Scheme
which includes monitoring arrangements to evaluate effectiveness.
If experience shows that the requirements of PACE and the Codes
of Practice are adversely impinging on delivery of arrest referral,
the Government will of course look at the need to amend this legislation.
Recommendation 76. Urgent consideration should
be given to extending the licensing system under the Misuse of
Drugs Act so that doctors in private practice and NHS doctors
who prescribe privately have to be licensed if they wish to prescribe
any Class A drug to an addict. Such licenses should be based on
criteria which include the doctor's training handling specialist
60. The Government agrees that the existing limited
licensing provisions for doctors treating addiction should be
extended. A public consultation exercise was conducted earlier
this year proposing the following changes:
- A licence requirement for prescribing any
controlled drug in Schedule 2 or 3 of the Misuse of Drugs Regulations
1985, with the exception of Methadone liquid or mixture on an
- A licence requirement for prescribing any controlled
drug in Schedules 2, 3 or 4 in injectable form.
61. The effect would be to place the licensing requirement
on both NHS and private prescribing for any injectable controlled
drugs, on private prescribing for all Schedule 2 and Schedule
3 controlled drugs in whatever form, but to leave the NHS prescribing
of Methadone liquid or mixture unaffected. The criteria for the
issue of prescribing licenses will include points identified by
the Department of Health Working Group as essential pre-requisites
for any doctor applicant, namely an appropriate level of clinical
competence, completion of training, the suitability of the clinical
environment and arrangements for effective liaison with specialist
services. Clinical competence will be assessed in terms of the
three skill levels identified in the Department of Health document
entitled Drug Misuse and Dependants - Guidelines on Clinical Management.
Recommendation 77. A National Register of private
prescriptions should be set up and arrangements made to scrutinise
62. Retail pharmacists are required to keep private
prescriptions for two years where Drugs Branch Inspectors and
Police Chemist Inspecting Officers can see them. Pharmacists favoured
by private drug addict patients are well known (and rarely found
outside London), and information therefore is readily retrievable.
In these circumstances a National Register seems unnecessary.
Recommendation 78. The existing tribunal system
should be abolished.
63. We agree. No reference to a tribunal has been
made since 1994. The system is outdated, slow and possibly defective
in terms of forthcoming Human Rights legislation. It is expected
that cases of irresponsible prescribing of controlled drugs will
be dealt with effectively by the revised Medical Council procedures.
Recommendation 79. The licensing system and rights
of appeal should be under the control of Directors of Public Health.
64. Directors of Public Health already have an important
role in recommending (or otherwise) the grant of existing licenses.
In the proposed extended licensing scheme it is intended that
this role should be significantly developed, both in terms of
determining the suitability of applicants and considering local
needs. But operating the system and taking accountability for
it will properly remain with the Home Office.
Recommendation 80. We support the recommendation
by the British Medical Association in 1997 for "a national
comprehensive, confidential information system to provide up to
date prescribing information on individuals, accessible to practitioners,
and other prescribers, available out of hours, including weekends".
65. The Government agrees it is a sensible to take
reasonable steps to limit the risk of multiple prescriptions.
But the BMA proposal raises many issues, including significant
costs. The previous system failed to deliver useful operational
information because of poor compliance by doctors in relation
to notifying details to the system. The proposed extended licensing
scheme will lead to the setting up of more practical, local arrangements
for information sharing.
Recommendation 81. We urge the Government to give
urgent and sympathetic consideration to the report of the Royal
Pharmaceutical Society on services to drug misusers and particularly
to the recommendations listed in paragraph 39 and chapter 8.
66. The report of the Royal Pharmaceutical Society
of Great Britain (RPSGB) makes a number of recommendations which
seem worthwhile in terms of the contribution community pharmacists
can make to the delivery of an effective treatment service for
drug misusers. The Government are currently considering possible
amendments to the Misuse of Drugs Regulations to permit computer
generated prescriptions for Schedule 2 and 3 Controlled Drugs
and for controlled drug registers to also be maintained on computer
as an alternative to the current hand-written requirement. The
RPSGB proposals in relation to pharmacists amending prescriptions
are understandable, but the Government wishes to be certain that
the proper balance is struck to avoid improper prescribing. We
are seeking the views of doctors.