Untitled Document

Drugs Bill - Committee Stage: 9.2.05

Despite much discussion in its passage through the committee stage, few ammendments were made of signifigance.

The Government came in for much criticism at Committee for bringing a Bill so weak on detail, and so reliant on details to be decided elsewhere which could not be examined by the Committee. For example, there was unhappiness that the scale of amounts that would be considered as evidence of supply could not be explored, nor that the Regulations that would prevent Landowners with Magic Mushrooms on their properties from being prosecuted were available.

The Committee rejected proposals to return Cannabis to Class B, and to add Khat to the list of controlled drugs. There was also a rejection of extending the testing on arrest proposals to cover Class B drugs.

However the Committee did vote to extend the Aggravated Supply clause to make it an offence to supply near a school even if the person was unaware that it was a school.

As one Committee Member pointed out, this would mean that two people in an alley beside the back of a school would be guilty of aggravated supply if they passed a spliff. The other concern about this clause is that all examples of school supply - two sixteen year olds sharing a spliff on the playing fields for example - will be treated more harshly than to adults doing same in a public place.

We'll be following the Bills ongoing progress and updating information here.

Full text of debate at: http://www.commonsleader.gov.uk/output/page777.asp

Charles Clarke on drugs: Abstinence, no tolerance, no decriminalisation and don't expect civil rights for drug users:

Second reading of the Drugs Bill: some worthy contributions but some ominous feathers in the wind.

The Second reading of the Drugs Bill took place on 18th January 2005. Before a less-than-packed commons, the dogged, the rabid, and the woefully ill-informed took turns not to listen to each other, and failed to discuss the Drugs Bill.

Sterling efforts were made by Paul Flynn (Newport, West) (Lab), Dr Brian Iddon (Bolton, South East) (Lab), John Mann (Bassetlaw) (Lab) and Jon Owen Jones (Cardiff, Central) (Lab/Co-op).

Mann highlighted, repeatedly, that analysis of hundreds of allegations of drugs supply outside school had been investigated in Bassetlaw and had been found to be baseless. Yet despite this, various speakers disregarded his evidence and continued to maintain the belief that this was a routine event.

Iddon made sterling efforts to explain the need to expand the range of pharmacotherpaies, including the need to look at LAAM and the issue of racemic methadone. But before a house that included Stephen Pound (Ealing, North) Lab who admitted "I know little of magic mushrooms. To be honest I thought they were a cartoon invention" such interventions as Dr. Iddon's were unfortunately pearls before swine.

Paul Flynn made sterling efforts as ever to prevent an evidence base to challenge prohibition. But Charles Clarke and others made it clear that they had made decisions and were not interested in pursuing this route.

Indeed, if anything Charles Clarke seemed to be even less open to discussion then his predecessor. Little was to sway him, not even a shaky grasp of economic theory:

Of the price of drugs he said "it is true that the price is too low in some cases, which is to do with the balance between supply and demand. I shall say something about that in a moment."

Unfortunately he didn't, or he may have turned economic theory on its head and proved that low prices were an indicator of high demand rather than the traditionally-held view that the opposite was usually the case.

However, no such confusion when it came to "drug abusers" who he said "threaten the civil liberties of the law-abiding citizen," hence he argued, the state taking on more powers to prevent drug use.
So what does Clarke's tenure at the Home Office hold? Well if the tone of his contributions to the debate are anything top go by, little that we'd cheer:

Education: agreed that the move should be away from "provision of information and harm reduction to drug prevention."

Decriminalisation: not on the cards, given that Clarke considers it "the exact opposite of the right approach." And in case the point was lost on any voters he stressed "I am wholly against, without qualification, legalising drugs." So not much scope for an informed debate there then.

Abstinence: Clarke really showed his hand here, with worrying implications for harm reduction. He said "Abstinence is obviously the way to proceed…I do not think that the various regimes should be based on tolerance."

Recreational and non-problematic use "there have been…interventions [in the debate]…that suggest tolerance and understanding of people who use drugs for their own pleasure, or whatever they do. I do not share that view in any respect whatsoever."

Drug Testing in Schools: Clarke abandoned the careful position of the DfES on drug testing in schools and said he viewed it as a "necessary weapon…we positively enourage it."

As the Bill heads to committee stage, there are a number of worrying changes that might be in the pipeline. A number of MPs were keen to see Khat become a controlled drug.

Several MPs were arguing vociferously for cannabis to be reclassified back to B and it seems likely that there will be pressure to see this happen at committee stage.

It was a debate typified by half-facts and dodgy assertions; one can only hope that some sense prevails at committee stage. It seems we can't expect it from Charles Clarke.

The full debate during the Second Reading can be found at this link: http://www.publications.parliament.uk/pa/cm200405/cmhansrd/cm050118/debtext/50118-05.htm#50118-05_head1

Drugs Bill
A Response from KFx

In December 2004, the Government published their Drugs Bill. The bill was drafted prior to Mr. Blunkett's departure from the Home Office. While his successor, Charles Clarke, has publicly stated that he will take forward his predecessor's agenda, we will have to wait and see just how much he will stick with this Bill as presented.

This clause inserts a new section 4A into the Misuse of Drugs Act 1971 and stipulates the circumstances which a court must treat as aggravating factors in respect of the offence of supply of a controlled drug. It also covers the supply of drugs near a school.

Critique:
This is a headline-grabber, little more. At present, courts can look at mitigating or aggravating factors prior to sentencing. The present clause does not create a new offence of "aggravated supply" but requires a court to consider supply near a school (which is in use) as an aggravating factor, and use of under 18s as couriers in the same way. So the only change is that courts now have a statutory obligation to consider such factors.

In the Regulatory Impact Assessment (RIA) the Home Office asserts that around 1% of offences could be construed as "aggravated." This is based solely on anecdotal evidence, and the Home Office offers no analysis of police or court reports to support this assertion.

The Home Office goes on to suggest that "aggravated supply" will apply in maybe 63 cases per year and will result in an average increase in sentence of two months!

The aggravating factor of supply near a school requires the prosecution to demonstrate that the supplier was aware (or could reasonably be aware) that the premises in question was a school.

However, there is no clear definition of "vicinity" and so it creates a grey area as to what distance from a school constitutes "vicinity."

No requirement as to knowledge applies in the case of alleged use of couriers under the age of 18. It is therefore foreseeable that a person could be considered to be guilty of aggravated supply were the courier to be 17, even if the supplier believed the person to be 18 or older.

KFx Response:
We do not believe that the proposed legislation adds substantially to the judicial process. We believe that a correctly conducted trial would, in the normal course of things, take account of aggravating and mitigating circumstances.

If the Government insists on proceeding with this legislation we recommend that the following safeguards be introduced:
· That the term "vicinity" be defined
· That a requirement to demonstrate that an alleged supplier "knew" or "could reasonably have known" that a courier was under 18 be introduced
· That the Government adhere to the recommendations of the Home Affairs select committee and produce a similar category of "peer supply" which the courts would be obliged to consider as a mitigating factor.

It is an offence under the Misuse of Drugs Act 1971 to possess a controlled drug with intent to supply it to another. This clause in amends section 5 to create a presumption of intent to supply where the defendant is found to be in possession of a particular amount of controlled drugs.

Critique:
The proposal here is that the Home Secretary will draw up a list of "prescribed amounts" which will be added to the Misuse of Drugs Regulations. Possession of quantities greater than the "prescribed amount" will automatically be considered proof of intent to supply a controlled drug, unless evidence to the contrary is provided.

The quantities in question will be drawn up in consultation with the ACMD but Parliament will be required to endorse the final regulation.

The Government has long avoided drawing up such a list of prescribed amounts. In the past, drug legislation reformers have argued that such a measure should be drawn up to define what constitutes "personal possession." The Government refused to do so on the grounds that defining such amounts would provide a "cut off," meaning that as long as people possessed below the "prescribed amount" they would only be prosecuted for possession. The fear on the part of Government was that suppliers would therefore, routinely carry the "prescribed" amount, reducing the risks of being charged with supply.

It is hard to see how the above proposals do not create the same risk; if a court must consider that an amount above the "prescribed" amount is proof of intention to supply, then logically possession of an amount below this will be the amount considered to be for personal possession.

Unless the thresholds for "prescribed use" are set to am adequately high level, some people will be erroneously convicted for intent to supply. Both recreational and dependent users do by drugs in bulk to reduce costs and ensure stability of availability. For a dependent heroin user, a month's supply could exceed 30gms of heroin and so a threshold below this would leave such users at risk of wrongful prosecution.

KFx response:
We would suggest that there be a proscribed amount which would equate with personal possession. We believe that it is for the courts to establish if a person's intent was to supply a drug using available evidence and as such the establishment of set quantities that equal proof of intention are not helpful.

This clause amends section 55 of the Police and Criminal Evidence Act 1984, which provides for an intimate search of a person where it is suspected that the person may have a Class A drug concealed on him.

Clause 5: X-rays and ultrasound scans: England and Wales
This clause enables a police officer to authorise an x-ray or ultrasound scan (or both) of a person suspected of swallowing a Class A drug, where the person has been arrested for an offence and is in police detention.

Critique:
We welcome the restraints that apply to the use of X-ray and Ultrasound; we assume that this would mean that the use of "portable" x-ray equipment as used in Lewisham in October 2004 would not be lawful and that the future use of such equipment to search for drugs will become unlawful.

We are concerned that a number of "new" techniques have been developed and implemented by the police which are of dubious legality under PACE. This includes the assertive use of sniffer dogs against people to provide grounds for a search, and the increasing use of vapour-trace machines, especially in pub and club settings.

KFx Response:
We would like to see greater clarity in these situations, including:
· Guidance on the use of sniffer dogs in public settings, and the establishment that the use of a sniffer dog on a person without consent is unlawful. We consider that the use of a sniffer dog, as with the use of any other vapour or other detecting equipment requires the suspect's informed consent.

· Guidance on the use of vapour-trace machinery: failure to submit to a vapour or swab test in a public place should not be considered, in its own right, grounds for a search. We want to see this written in to PACE alongside other revisions to police powers to search.

This clause makes a number of amendments to the Police and Criminal Evidence Act 1984 (PACE) to allow for the introduction of drug testing of persons after arrest. The existing provisions for testing after charge remain. The new provision will apply to persons aged 18 and over.

This power is linked to the subsequent requirement for those who test positive for heroin or cocaine to attend a mandatory initial assessment. See below for further details.

Clause 8: extended detention of suspected drug offenders
This clause will allow a court to remand a prisoner to the custody of a police officer where it is suspected that the prisoner has swallowed drugs to conceal evidence and avoid prosecution. Currently the police may detain a person in police detention under the Police and Criminal Evidence Act 1984 for a maximum of 96 hours prior to charge. This is not necessarily a sufficient period of time for swallowed evidence to be recovered.

Under this clause, a person could be detained for up to 192 hours ( 8 days) to wait for drugs to pass through after they have been swallowed. However, in the RIA assessment, the Home Office acknowledges that only limited numbers of people could be held due to the restricted nature of such detention facilities and estimates that 100 people per year would be thus held.

The RIA takes in to account court costs but makes no assessment of the financial costs to the police of the additional 9,000 hours of detention time this could accrue.

We are also concerned that such a measure would allow a more extended period to interview the suspect: we would want protection written in to the legislation to ensure that such extended detention is solely used for drugs to be excreted and is not used as an opportunity for prolonged interviews.

Clause 9: Initial assessment following testing for the presence of class A drugs

This clause introduces a new discretionary power for the police to require persons who have tested positive for a specified class A drug under to attend an initial assessment of their drug misuse.

Clause 10: Follow-up assessment
This clause provides that a police officer must, when imposing a requirement to attend an initial assessment under clause 9, also require the person to attend a follow-up assessment and must inform the person that this second requirement will cease to have effect if he is informed at the initial assessment that he is no longer required to attend the follow-up assessment.

Clause 11: Requirements under sections 9 and 10: supplemental
This clause imposes a number of obligations on police officers where they require a person to attend an initial assessment under clause 9, or both an initial assessment and a follow-up assessment under clause 10.

Clause 12: Attendance at initial assessment
This clause places a duty on the person conducting the initial assessment to inform the police if the person concerned fails to attend or remain for the duration of that assessment.

Clause 14: Attendance at follow-up assessment
This clause places a duty on the person conducting the follow-up assessment to inform the police if the person concerned fails to attend or remain for the duration of that assessment.

Clause 15: Disclosure of information about assessments
This clause provides that information obtained as a result of the initial assessment or follow-up assessment may not be disclosed without the written consent of the person concerned except in the case of information sharing with those involved in the conduct of the initial assessment and follow-up assessment.

Clause 16: Samples submitted for further analysis
This clause provides that a person will no longer be required to attend an initial or follow-up assessment if, before he attends that assessment, a further analysis of the sample taken reveals that it was negative.

Clause 17: Relationship with the Bail Act 1976 etc.
This clause provides that a requirement to attend either an initial assessment or a follow-up assessment ceases to have effect if, before he has complied with the requirement in question, the person is charged with the offence in respect of which the drug test was taken and is granted bail by a court on the condition that he undergo a relevant assessment and/or participate in follow-up under the Bail Act 1976.

Clause 18: Orders under this Part and guidance
This clause provides that an order made by the secretary of state amending the age at which persons may be required to attend an initial assessment and a follow-up assessment may make provision where appropriate in respect of persons under the age of eighteen, may make different provision for different police areas and must be approved in draft by both Houses of Parliament.

Clause 19: Interpretation
This clause defines a number of terms that are used in Part 3 of the Bill.

Critique:
This is one of the most substantial shifts in policy and practice within the bill, and the one with the most substantial ramifications for both users and the field.

Essentially, everyone who is suspected of a trigger offence or where there are suspicions of drug use will be tested for the presence of drugs on arrest.

Where this test proves positive, a person will be obliged to attend an "initial assessment" with an "initial assessor."

Unlike traditional arrest referral scheme, attendance for an initial assessment is mandatory and failure to attend and complete an initial assessment is an imprisonable offence.

Should the initial assessment indicate that it is appropriate; the person will then be obliged to attend a "follow-up assessment." Again, failure to attend a follow up is an imprisonable offence.

The outcome from the follow-up assessment should be the development of a care-plan.

We welcome the idea that all offenders who have an identified drug related issue should be able to access support and treatment services rapidly. However, we cannot endorse the coercive nature of the model proposed.

We believe that existing arrest referral processes - offering support and input from an independent worker at the point of arrest - has been productive. We believe that a coercive process is less likely to result in an honest and therapeutic engagement between drugs worker and user.

The RIA is flawed, working on the basis that only 5% of people required to attend an initial assessment will fail to attend this appointment. We would anticipate that the DNA rate will be significantly higher than 5%, and there will be a drop-out rate before the initial assessment and again before the follow-up assessment.

The maximum sentence for failure to attend an initial or follow-up assessment would be initially 3 months but would go up to 51 weeks when changes to penalties within the Criminal Justice Act 2003 come in to force.

The implementation of this strategy will require a substantial increase in spaces for assessment workers attached to drug projects or other agencies.

Clause 20: Intervention Order
This clause amends the Crime and Disorder Act 1998 (the "CDA") in relation to Anti-social Behaviour Orders (ASBOs) and provides for a new order which can be made alongside an ASBO when drug misuse has been a cause of the behaviour that led to the ASBO being made.

An Intervention Order can be made where "antisocial behaviour" is considered to be related to drug use. The court can attach an Intervention Order to the antisocial behaviour order which will then require the person to attend activities designated by the court.
The Intervention Order will reflect the opinions of a "suitably qualified assessor" such as a drugs worker. Failure to attend and fulfil the requirements of the order would be an offence carrying a £1000 fine.

The RIA guesstimates that 100 such orders will be made each year and that there will be only 10 breaches.

We welcome any process that improves and increases access to treatment interventions. However, we are concerned that the coercive nature of the Intervention Order has a negative impact on the therapeutic relationship between drugs worker and client. It seems perverse that, on the one hand a client may finally have the chance to engage with a counsellor but that the counsellor will be obliged to report the client if they fail to attend an appointment.

However, we remain more concerned by the imposition of ASBOs on people with a substance misuse problem and in comparison to this, the development of Intervention orders seems comparatively benign.

This clause inserts into Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 a fungus of any kind that contains the drug Psilocin or an ester of that drug.

It is no surprise that the Government has decided to change this legislation, but it is disappointing that rather than pursue a licensed scheme or look at reclassifying and rescheduling mushrooms, they should remain a class A drug.

If the Government proceeds with this piece of legislation, land-owners who know that hallucinogenic mushrooms are growing on their land may be committing an offence if they fail to remove them.

According to Transform, the Government intends to create space within the Regulations to cover this situation but no reference is made to this in the Bill.

Bizarrely, the RIA does not foresee any additional court costs - even though anyone found in possession of fresh magic mushrooms will become liable to prosecution. The Home Office appears to believe that once this comes in to force people will simply cease to possess magic mushrooms.

We appreciate that hallucinogenic mushrooms can have a negative impact on mental well-being, especially amongst people prone to poor mental health. However, we consider such mushrooms to be consider mushrooms considerably less hazardous than either LSD, Ecstasy or amphetamines. As such it would seem more appropriate to reclassify mushrooms to class C, and, as with anabolic steroids, remove the penalties for personal possession.

We believe that a better response would be:
· To reclassify and reschedule whole magic mushrooms to Class C, schedule 4(ii)
· To classify extracted psilocin and psilocybin as class B schedule 1 drugs.
· To agree a retailers code of conduct including maximum quantities for single sales, age restrictions, and warning wordings or packaging.

Prior to the bill's publication, the Home Office had made reference to a collection of proposals which, fortunately, did not make it in to the final bill. This included a proposal to make it an offence to have controlled drugs in the blood-stream.

However, there are more than enough half-baked, ill-conceived, inadequately costed measures as the bill stands. In a functional democracy, a series of well-conducted debates in Parliament would reveal the failures of the this bill. However, given the current failures of our parliamentary democracy, it seems unlikely that such a debate will take place. Consequently our already-flawed drugs legislation will be augmented by further clauses.

The Government appears keen to take this legislation forward prior to the General Election. By appearing to pass tough, anti-drug legislation, the Government is once again seeking to garner votes. But a close examination of much of the proposed bill reveals attention-grabbing measures for popular consumption, and a missed opportunity to revise outdated and obsolete legislation.

Schedule 2(6) Repeals Section 38 of the Criminal Justice and Police Act 2001.

We welcome this repeal, but would note that the Home Office introduced this piece of legislation in haste, without consultation, on the run up to a general election in a cynical attempt to garner votes. An entire election later, the Government decides to scrap this piece if legislation.

We also think that this repeal does not go far enough and would recommend:
· Repeal of Sections 8(c) and 8(d) of the Misuse of Drugs Act 1971
The Government created a ludicrous inequality by creating a situation where the penalty for possession of cannabis was reduced, and a presumption against arrest for personal possession was created. However, housing providers were left in the unenviable position of being obliged to prevent cannabis use on site. While some regions have pursued an approach of negotiating "Cannabis Protocols" with the police, this is not an ideal response. It would have been preferable to remove section 8(d) of the MDA altogether. Given the Government proposes to repeal Section 38 of the Police and Criminal Justice Act 2001 it would have seemed sensible and fair to repeal section 8(d) at the same time.

Schedule 2(7) relates to the Antisocial Behaviour Act (Power to close premises) and empowers a constable to enter any premises to issue a closure notice, using force if necessary.

The reality is that, given the attendant risks of entering such a property it would be foolhardy for a single constable to enter such a property and so this power would require a sufficiently large number of policy enter to issue the notice.

Effectively what this means is that the service of a closure notice could now be accompanied by several police officers putting the door through and entering the property "solely" for the purpose of affixing a notice to a prominent site.

Given some Police forces' misuse of these powers, it seems highly unlikely that, once in, the police would restrict their actions solely to serving the closure notice.

We would expect to see some additional safeguards attached to this power and so recommend:

· The legislation be amended to ensure that any other police actions beyond serving the notice be considered unlawful and any evidence thus garnered or charges brought shall be considered inadmissible.

A missed opportunity:
A drugs bill was a golden opportunity to address some of the long-overdue revisions to the Misuse of Drugs Act 1971 and related legislation.

Amongst other changes we would have advocated for the following:
· Changes to the legislation on Storage of Controlled Drugs
The Home Office has been aware for over five years of the need to revise the MDA to allow the legitimate storage of prescribed controlled drugs in care settings. Charles Clarke was amongst those who agreed that such a measure was required.
· Further revision to paraphernalia legislation
We would have welcomed further changes to the Paraphernalia legislation to make it lawful to distribute a wider range of harm-reduction resources including the distribution of foil, crack smoking equipment and other equipment.

The Government has ceased to consult properly and honestly with stakeholders when developing drugs policy and legislation. Little in the current bill reflects the opinions or views of the Home Affairs Select Committee, or seems to reflect recent considerations by the ACMD. Instead it seems to be an agenda led by the Home Office, driven by its obsession with the folk-devil of antisocial behaviour. This is twinned with some of the ideas secretly generated by the Forward Strategy Unit and the "blue sky thinking" on drugs led by John Birt. In January 2004, proposals from the FSU leaked to the media included the following: a greater emphasis on enforced treatment, and looking at a regime that orders imprisonment or treatment for anyone testing positive for heroin.

Looking at who was consulted prior to drafting the bill is indicative of how much the Government is drafting legislation in isolation, and failing in its social and professional obligations to consult:

The Explanatory notes and the RIA make repeated reference to "experts" or "anecdotal information" and all too frequently there is no evidence base to support the assertions.

There is the anecdotal assertion that suppliers are targeting school children - whereas the DoH's own research says that more than 70% of school-children first obtain drugs from their peers.

There is also the assertion by unnamed "experts" that the Magic Mushroom market cannot be expected to self-regulate: indeed experience to date (and internationally) would suggest the opposite.

Given the importance of effective and planned drugs legislation, we strongly urge the Government to resume effective and informed consultation with the all sectors of the drugs field -recreational and dependent users, youth workers, drugs workers so that effective and balanced legislation can be developed.

Colossal sums of money have been spent over the past few years on "enforced" treatment. A number of existing agencies have increased massively in size on the back of winning contracts o deliver this enforced treatment. They have expanded in terms of staff and in terms of money. To put it bluntly, they have profited handsomely from the new orthodoxy of drugs and crime.

Increasingly, these organisations have become dependent on Government money. Beholden to the Home Office or the NTA , they are increasingly required to toe the party line, not challenge, not contradict.

This has led to the dominant paradigm - the inextricable link between drugs and crime, and that treatment (including enforced treatment) works.

In a field which was once typified by diverse opinions and a willingness to challenge, there are now few truly independent voices. Most have agreed to take the Home Office silver in order to survive. New organisations have sprung up solely to deliver the Government agenda.

Now, in the face of the Drugs Bill, a small number of these bodies have started to express their concern about the further increase on the "criminal" aspect of drugs rather than the care and health aspects. They are starting to question the direction and slant of the Government Agenda.

The real acid test, though, will come at tendering time. Will these same agencies be unwilling to take on the role of Initial Assessors and undertake intital and follow-up assessments? Will they refuse to report people who fail to comply with an Intervention Order? Will they continue to provide tacit (or active) support to the "War on Drugs" through their unwillingness to speak out loudly, publicly and unequivocally to challenge this slide to the right?

Conclusion:
The Government has produced a rushed, thin bill which fails to address some of the real needs of the field whilst pandering towards the drugs and crime agenda. Whilst it will undoubtedly serve the Government well at the ballot box, we are not convinced that it will improve the quality of interventions or reduce drug use or drug related harm in the UK.
KFx: December 2004

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Drug News Archive sep 04 - sep 05	Drug News: Archive: September 04 - September 05 This area contains news and developments on drugs. It will include legislation, policy, strategy and other drugs news. As well as reporting on what is going on this section will also provide some analysis and commentary, looking at the real implications of these developments. The articles are arranged with the most recent at the start, and older material at the bottom. Use the "quick finder" section below to jump to specific areas. Material dating to before 10/04 has been archived; please go to the Drug News Archives to view this material. All information relating to SECTION 8 has been moved to a new section HERE.
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Archive: 09/04 - 09/05
Archive 09/03 - 09/04
Archive 05/02 - 09/03
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		Quick Finder
	DEFRA, Drug Litter and Section 8 5.12.05, Updated 15.12.05 Post Shipman Proposals and Response 18.9.05 Drugs Bill Enacted 23.4.05 Crackdown - excesses of Home Office-driven policing 9.2.05 Drugs Bill - Committee Stage 9.2.05 Drugs Bill - Second Reading in Parliament 8.2.05 Drugs Bill - What it covers and a response from KFx 28.12.04 An Au revoir to Mr Blunkett 28.12.04 Drugs and Gambling - two contradictory approached can't both be right! 7.11.04 That Metropolitan Police campaign against drug supply 7.11.04
	DEFRA, Drug Litter and Section 8 15.12.05 Following an intervention from KFx, DEFRA has agreed to reword the relevant section of the report. Remaining copies of the document are to be pupled, and the document henceforth will only be available as a download. 5.12.05 DEFRA produced a generally superb document about Drug Litter, but then messed it up by mis-stating the legal situation regarding Section 8. KFx had contributed to an early draft of the report, but had not seen the final version before it went to print. We welcome lots of the recomendations of the report, especially its rejection of blue lights and support for public sharps bins. But we have taken issue with the Section 8 part. We wrote to DEFRA as follows: "I recently read a copy of the DEFRA publication; "Tackling Drug Literature - Guidance and Good Practice." I contributed to the preparation of this document and provided some feedback on an early draft in April 2005. On looking through the final print version (which I wasn' asked to review,) I was suprised and extremely concerned to read the following boxed section on page Seven: "The Misuse of Drugs Act 1971 and housing services Section 8(d) of the Misuse of Drugs Act 1971 was amended by Section 38 of the Criminal Justice and Police Act 2001 to extend its scope beyond cannabis and opium to all controlled drugs. However, the amendment was never actually brought into force. During the consultation exercise it was clear that professionals working in the treatment and harm reduction sector felt that the amendment might leave them open to prosecution. The Drugs Act 2005 included a repeal of s.38 . The repeal commenced in the summer of 2005. In effect section 8 (d) has remained unaltered. Providing sharps boxes or needles for users in itself does not constitute 'knowingly allowing' under section 8 (d). If a hostel or day centre is allowing other behaviour that involves use or supply of controlled drugs, then it is possible that prosecution could result. However, supplying needles alone cannot constitute grounds for charges being brought unless it were accompanied by other behaviour involving actual use or supply. Letting users inject un-prescribed drugs on the premises is likely to be considered as 'knowingly allowing' under the terms of this section of the law. However, there is no risk of prosecution from simply providing users with sharps nor from providing opportunities to return them safely." The first above paragraph is accurate. The second paragraph is however hugely inaccurate and massively misleading. You say "If a hostel or day centre is allowing other behaviour that involves use or supply of controlled drugs, then it is possible that prosecution could result." Certainly, if an organisation were allowing supply, prosecution would be feasible under Section 8(b). If smoking of cannabis or prepared opium were taking place, then prosecution would be feasible under section 8(d). But as section 8(d) ONLY covers cannabis or prepared opium, allowing the USE of other drugs (e.g. tolerating the injection of heroin) is NOT prohibited by section 8. Had Section 8 been ammended by Section 38, then it would have been illegal to tolerate use of heroin on site. But as this amendment was never enacted and as it has since been repealed, no offence existsof allowing use on site. So when you say "Letting users inject un-prescribed drugs on the premises is likely to be considered as 'knowingly allowing' under the terms of this section of the law," this is wholly erroneous. "knowing allowing" injecting of heroin is contrary to which section of Section 8? None. Part of the reason why this error is so worrying and so frustrating is that numerous housing providers routinely exclude drug users from provision for allowing using on site. They do so because they labour under the erroneous belief that if they fail to do so they risk prosecution. The amendment to Section 8 was repealed precisely because the Home Office recognised the good work of housing providers and harm reduction services that worked with ongoing users. So it is hugey unhelpful when a Government Department publishes material that misrepresents the legal position and creates further confusion. Clearly, given the scale of this legal error and the prominence that it has been given in the document, some correction is urgently required. I hope to hear from you soon regarding this matter, and ideally reassuring me that the document will be withdrawn while a corrected version is produced. I am sure that you will need to check this with the Home Office and other departments but I would appreciate a rapid response. Due to the seriousness of this error, and the potential ramifications for thousands of housing providers, I'm hoping for rapid action and trust that a formal complaint to DEFRA will not be required at this stage." As of 5th December, DEFRA have done no more than acknowledge concerns and we will will update as and when there are further developments. The DRUG LITTER report is at: http://www.defra.gov.uk/environment/localenv/litter/pdf/drugrelatedlitter.pdf
	No ID - No Methadone? - Proposed changes to Drugs Regulations The Home Office has launched a public consultation on proposals to make changes to the Misuse of Drugs Regulations. These proposed changes follow on from the Fourth Report of the Shipman Inquiry. To read the Proposals in full, please go here The low-key launch of the consultation at the end of July may mean that it escaped the attention of key agencies. We feel that the proposed changes may have some important ramifications for the Drug Treatment and social care field and would urge agencies to respond to the consultation. The proposed changes are intended to improve the prescribing, audit trail, and safe handling of prescribed controlled drugs. They include proposed changes to the Misuse of Drugs Regulations 2001. The proposals have been drawn up after consultation with the ACMD and a number of other agencies exclusively drawn from medical disciplines. Unfortunately, this list does not appear to include the National Treatment Agency, Drugscope, Homelesslink nor any other agency primarily concerned with the needs of drug users engaging with treatment providers. We are concerned that this has meant that some of the proposals could negatively impact on access and adherence to treatment. We are also disappointed that the Home Office has not used this revision as an opportunity to clarify the legal situation relating to the storage of controlled drugs in non-medical settings. Paragraph 15: Controlled Drug Prescriptions Proposal: Prescriptions for controlled drugs to carry a unique identification number so prescriber can be identified All prescriptions for controlled drugs to carry a patient identifier number (NHS Number) to identify double scripting Effectively, this proposal represents a return to a "register" of addicts. Within this proposal, all users prescribed controlled drugs will be recorded and identifiable within a central register. A key concern must relate to homeless and transient patients who do not currently have, or do not know their NHS numbers. The proposals note a need to consider the "obligations on prescribers and dispensers faced with patients who are unable or unwilling to supply their NHS number." We would go further than this and propose that given the risk of further excluding people who are dependent on drugs from treatment, those engaged in the treatment of drug dependency should be exempted from this requirement. We would suggest that this exemption should be time-limited as follows: "Prescribers treating people for dependency on controlled drugs will need to ensure reasonable efforts are taken to ascertain an NHS number. However, in order to ensure access and continuity of treatment, obtaining such a number need not happen prior to commencing treatment but should take place within the first three months of treatment." Paragraph 22: Dispensing controlled drugs: Proposal: requirement for dispenser to ask for the name, address and some form of personal identification of people collecting Schedule 2 controlled drugs. This proposal is mediated by a proposal to ensure that Pharmacists still have discretion to dispense where a person has no form of identification. We are concerned that this proposal needs more careful attention to ensure that people being treated for drug dependency, especially those who are homeless or transient, are not unfairly treated by this proposal. Many such patients will have no formal documentation to prove identity, and those who are homeless or in temporary accommodation may struggle to prove their address. In order to facilitate dispensing to such patients, we would propose the following: Patients attending agencies for drug treatment to be issued with an ID card which includes patient ID number and photograph, which will be an agreed form of identification at local pharmacists. This will be made available at no cost to people attending treatment. Such a system would be extended to patients receiving treatment from GPs within a shared-care scheme. Paragraph 27: Controlled Drugs in the Community We have contacted the Home Office on previous occasions requesting clarification of the regulations relating to the storage of prescribed controlled drugs in non-medical settings. It has been our ongoing concern that the storage of prescribed controlled drugs by hostels, day centres and other allied professionals is not robustly legal. We have brought these concerns to the attention of successive Home Secretaries and have been assured that the issue would be addressed when parliamentary time allowed. We have documented our concerns relating to the current legal position in detail in the KFx guidance document "On Storage." We have appended this to our submission to the Home Office. In order to enhance the safe handling of controlled drugs in the community we would like to make the following proposals: " That hostels and day centres be given the authority under the Misuse of Drugs Regulations to store prescribed controlled drugs on behalf of Service Users, and return such drugs to the named patient. " That while such services should be given this authority, they would not be obliged to store such prescribed drugs for service users or residents. " Organisations who wish to store controlled drugs would be required to demonstrate that they can operate to agreed standards including: Storage facilities Record keeping Staff references Joint working with prescribers The provision would be audited by the Pharmacy Inspectorate who would furnish a Certificate of Compliance, authorising the storage of such controlled drugs. Conclusion: Whilst it is essential that there are effective strategies in place to monitor the use of prescribed controlled drugs, it is essential that such measures do not have a disproportionately negative impact on patient care. Where the patients in question are receiving their controlled drugs as part of a package of treatment for drug dependency, it is imperative that access and continuity of treatment is not reduced as a consequence of changes to the Misuse of Drugs Regulations. We hope that this submission highlights these concerns and that they will receive serious consideration as part of the consultation process. Kevin Flemen KFx September 2005
	And here's your new Drugs Act 23.4.05 In the dying days of the Parliament, the Drugs Bill, which was being debated in the Lords, was rushed through the last stages of the 'democratic' process and received Royal Assent, passing on to the Statute Book. The process was a travesty of democratic process. The Drugs Bill had been widely criticised for its inadequacies. It had been castigated on human rights grounds and the Joint Parliamentary Human Rights Committee was particularly scathing in their criticism. http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/47/4702.htm The Conservatives were broadly supportive of the legislation. Predictably the primary changes they wanted to see made were tougher sanctions and penalties, and so, given Conservative support and Labour backing, it seemed likely that the Bill would be passed. As time ran short, the Bill could well have foundered before the dissolution of Parliament, especially if the Lords had done their job and given the bill the scrutiny it deserved. However, with the sort of backroom deals that typify contemporary politics, the Bill was passed in the so-called 'wash-up' period. The Tories had been keen to see the Drugs Bill ammended to include moving cannabis from Class C back to B. This is something that Charles Clarke is privately keen to see, but publicly would be tantamount to a labour party policy U-turn. In order to stall such a U-turn whilst pacifying the Tories and securing the passage of the Drugs Bill, Clarke agreed to refer the reclassfication of cannabis back to the ACMD and seek their advice on the subject. This face-saving formula placated the Tories, secured the passage of the Drugs Bill and, possibly, leaves the way forward for Clarke to reclassify cannabis if the ACMD makes such a recomendation. Much of the Drugs Act 2005 cannot come in to force straight away, as it requires subsequent legislation, guidance or changes to regulations. The following sections will not be instantly available: Mushrooms containing psilocin: these will all become Class A drugs, whether prepared or not. However, additional guidance or wording is required to ensure that landowners who merely have mushrooms growing on their land are not committing an offence. This clause will not come in to force until such a wording is agreed. Initial assessments and follow-up assessments: this new power means that the police can require any arrestee who tests positive for Class A drugs to attend an initial assesment and, where required, a follow-up assessment. However, these new developments cannot take place until funding is released to pay for the assessors and these will need to be recruited. It seems likely that this development will curtail, if not spell the end of arrest referal schemes as they are supplanted by these mandatory assessments. Given their vocal opposition to the Drugs Bill, we assume that Turning Point will refuse to bid for any of the new contracts to undertake assessment and would not be so hypocritical as to condemn the Bill whilst actually receiving funds to deliver aspects of it. Presumption of intent to supply: This section will mean that people found in possession of quantities of drugs exceeding the "proscribed amount" will automatically be considered to be intending to supply those drugs. These quantities have yet to be decided and need to be approved by parliament. This section cannot come in to force until then. The only shiny jewel in all this sewage is that the amendment to Section 8 by Section 38 of the Police and Criminal Justice Act is repealed by the Drugs Act 2005. So a piece of legislation that Charles Clarke saw fit to pass to garner votes in the last election is repealed by a piece of legislation to garner votes in this one...plus ca change.
	When Crackdown goes OTT Amidst much fanfare and column inches, the Home Office launched Crackdown on 12th January 2005. The Home Office press release said "Operation Crackdown is being co-ordinated by ACPO and the Home Office. It will involve 32 police forces in England and Wales, focusing on closing drug dens, disrupting local drug markets, seizing illegal firearms and bringing dealers to justice. A key part of the campaign will be working closely with communities." The Home Office appeared to hope that such a high profile campaign, on the run up to a general election, would provide much needed media coverage and reinforce the impression of a Home Office tough on crime and tough on drugs. However, we have been hearing worrying tales of excess, especially in the closure of so called "drug dens." The word from the Home Office has clearly been that they expect the Police to use the new powers provided by the Antisocial Behaviour Act to close premises. But in some areas, where crack houses are few and far between, the Police appear to have struggled to find proper drug dens. So increasingly any drug user is finding themselves at risk of a closure order - even if they are not "drug dens." So squats are being emptied using these powers and people who are drug dependent and living with their families are being warned that they may be summarily removed from their properties. We have received independent information from Wiltshire and from Hackney of such misuse of these powers, and it seems likely that such occurrences are taking place else where. Drugs and housing advisors concerned about misuse of the powers should advise concerned service users of the following: the property in question must be associated with Class A drug use AND nuisance or disorder; there must be evidence of both. If the property is not associated with nuisance or disorder it should be possible to challenge an application for a Closure order. The property MUST be the subject of a properly-issued Closure Notice. If a closure notice has not been served properly, a closure order cannot be issued. Increasingly the police will want to serve a closure notice on an individual; otherwise it will be posted to the house and affixed to a door. The Closure Notice will specify the Date, Time and Place of the Court Hearing that will determine if a Closure Notice will be issued. You will have to act very quickly. If the occupier or tenant wished to challenge a closure order they will need to attend court and should get legal representation as soon as possible. It is essential that this is done very rapidly as from the point of Closure Notice, a Closure Order will be sought and issued within 24 hours. With legal representation, the occupier or tenant should attend court and apply for an adjournment; this should be allow for proper submissions to be prepared and submitted. The court can grant a period of adjournment for up to 14 days. The occupier and legal team should return to court and provide grounds to challenge the application for a closure order. This could include: demonstration that the property is not associated with Class A drug use. This could be supported by evidence of drugs workers, housing support workers, evidence from drug treatment projects etc evidence that the property is not associated with disorder or nuisance: this could come from supporting evidence from other neighbours, evidence from Housing Support workers, diary to demonstrate that nuisance is caused by others, etc proposals that other approaches will resolve the nuisance or disorder: this include a willingness to attend treatment, agreement to exclude visitors who cause nuisance, or willingness to change behaviour that is causing nuisance. other submissions that support the contention that the issuing of a closure order is not an appropriate response. If a Property is closed, the person will be homeless. It is ESSENTIAL at this point that they do NOT surrender their tenancy at this point as they may be considered intentionally homeless. They should continue to seek legal advice, and make a decision as to whether they wish to take further action. They can apply to the court for the Closure Order to be discharged, but would have to demonstrate to the court's satisfaction that the nuisance or disorder would not recur. Given sufficient legal back-up and a strong case, there may be scope to mount a legal challenge to a closure order, but this will require extensive legal support and resources. If you are squatting remember, these powers were intended to close properties associated with Class A drug use and serious nuisance. Squatters who are using drugs recreationally and are not causing disorder or serious nuisance should NOT be on the receiving end of such closure orders. It is important that efforts are made to challenge misuse of such powers in the courts. Remember: ACT QUICKLY: GET LEGAL ADVICE: GET AN ADJOURNMENT: PREPARE A CASE. FOR A PDF Document on this subject click HERE
	Drugs Bill - Committee Stage: 9.2.05 Despite much discussion in its passage through the committee stage, few ammendments were made of signifigance. The Government came in for much criticism at Committee for bringing a Bill so weak on detail, and so reliant on details to be decided elsewhere which could not be examined by the Committee. For example, there was unhappiness that the scale of amounts that would be considered as evidence of supply could not be explored, nor that the Regulations that would prevent Landowners with Magic Mushrooms on their properties from being prosecuted were available. The Committee rejected proposals to return Cannabis to Class B, and to add Khat to the list of controlled drugs. There was also a rejection of extending the testing on arrest proposals to cover Class B drugs. However the Committee did vote to extend the Aggravated Supply clause to make it an offence to supply near a school even if the person was unaware that it was a school. As one Committee Member pointed out, this would mean that two people in an alley beside the back of a school would be guilty of aggravated supply if they passed a spliff. The other concern about this clause is that all examples of school supply - two sixteen year olds sharing a spliff on the playing fields for example - will be treated more harshly than to adults doing same in a public place. We'll be following the Bills ongoing progress and updating information here. Full text of debate at: http://www.commonsleader.gov.uk/output/page777.asp Charles Clarke on drugs: Abstinence, no tolerance, no decriminalisation and don't expect civil rights for drug users: Second reading of the Drugs Bill: some worthy contributions but some ominous feathers in the wind. The Second reading of the Drugs Bill took place on 18th January 2005. Before a less-than-packed commons, the dogged, the rabid, and the woefully ill-informed took turns not to listen to each other, and failed to discuss the Drugs Bill. Sterling efforts were made by Paul Flynn (Newport, West) (Lab), Dr Brian Iddon (Bolton, South East) (Lab), John Mann (Bassetlaw) (Lab) and Jon Owen Jones (Cardiff, Central) (Lab/Co-op). Mann highlighted, repeatedly, that analysis of hundreds of allegations of drugs supply outside school had been investigated in Bassetlaw and had been found to be baseless. Yet despite this, various speakers disregarded his evidence and continued to maintain the belief that this was a routine event. Iddon made sterling efforts to explain the need to expand the range of pharmacotherpaies, including the need to look at LAAM and the issue of racemic methadone. But before a house that included Stephen Pound (Ealing, North) Lab who admitted "I know little of magic mushrooms. To be honest I thought they were a cartoon invention" such interventions as Dr. Iddon's were unfortunately pearls before swine. Paul Flynn made sterling efforts as ever to prevent an evidence base to challenge prohibition. But Charles Clarke and others made it clear that they had made decisions and were not interested in pursuing this route. Indeed, if anything Charles Clarke seemed to be even less open to discussion then his predecessor. Little was to sway him, not even a shaky grasp of economic theory: Of the price of drugs he said "it is true that the price is too low in some cases, which is to do with the balance between supply and demand. I shall say something about that in a moment." Unfortunately he didn't, or he may have turned economic theory on its head and proved that low prices were an indicator of high demand rather than the traditionally-held view that the opposite was usually the case. However, no such confusion when it came to "drug abusers" who he said "threaten the civil liberties of the law-abiding citizen," hence he argued, the state taking on more powers to prevent drug use. So what does Clarke's tenure at the Home Office hold? Well if the tone of his contributions to the debate are anything top go by, little that we'd cheer: Education: agreed that the move should be away from "provision of information and harm reduction to drug prevention." Decriminalisation: not on the cards, given that Clarke considers it "the exact opposite of the right approach." And in case the point was lost on any voters he stressed "I am wholly against, without qualification, legalising drugs." So not much scope for an informed debate there then. Abstinence: Clarke really showed his hand here, with worrying implications for harm reduction. He said "Abstinence is obviously the way to proceed…I do not think that the various regimes should be based on tolerance." Recreational and non-problematic use "there have been…interventions [in the debate]…that suggest tolerance and understanding of people who use drugs for their own pleasure, or whatever they do. I do not share that view in any respect whatsoever." Drug Testing in Schools: Clarke abandoned the careful position of the DfES on drug testing in schools and said he viewed it as a "necessary weapon…we positively enourage it." As the Bill heads to committee stage, there are a number of worrying changes that might be in the pipeline. A number of MPs were keen to see Khat become a controlled drug. Several MPs were arguing vociferously for cannabis to be reclassified back to B and it seems likely that there will be pressure to see this happen at committee stage. It was a debate typified by half-facts and dodgy assertions; one can only hope that some sense prevails at committee stage. It seems we can't expect it from Charles Clarke. The full debate during the Second Reading can be found at this link: http://www.publications.parliament.uk/pa/cm200405/cmhansrd/cm050118/debtext/50118-05.htm#50118-05_head1 Drugs Bill A Response from KFx In December 2004, the Government published their Drugs Bill. The bill was drafted prior to Mr. Blunkett's departure from the Home Office. While his successor, Charles Clarke, has publicly stated that he will take forward his predecessor's agenda, we will have to wait and see just how much he will stick with this Bill as presented. What the Bill Proposes: Part 1: Supply of controlled drugs Clause 1: Aggravated supply of controlled drug This clause inserts a new section 4A into the Misuse of Drugs Act 1971 and stipulates the circumstances which a court must treat as aggravating factors in respect of the offence of supply of a controlled drug. It also covers the supply of drugs near a school. Critique: This is a headline-grabber, little more. At present, courts can look at mitigating or aggravating factors prior to sentencing. The present clause does not create a new offence of "aggravated supply" but requires a court to consider supply near a school (which is in use) as an aggravating factor, and use of under 18s as couriers in the same way. So the only change is that courts now have a statutory obligation to consider such factors. In the Regulatory Impact Assessment (RIA) the Home Office asserts that around 1% of offences could be construed as "aggravated." This is based solely on anecdotal evidence, and the Home Office offers no analysis of police or court reports to support this assertion. The Home Office goes on to suggest that "aggravated supply" will apply in maybe 63 cases per year and will result in an average increase in sentence of two months! The aggravating factor of supply near a school requires the prosecution to demonstrate that the supplier was aware (or could reasonably be aware) that the premises in question was a school. However, there is no clear definition of "vicinity" and so it creates a grey area as to what distance from a school constitutes "vicinity." No requirement as to knowledge applies in the case of alleged use of couriers under the age of 18. It is therefore foreseeable that a person could be considered to be guilty of aggravated supply were the courier to be 17, even if the supplier believed the person to be 18 or older. KFx Response: We do not believe that the proposed legislation adds substantially to the judicial process. We believe that a correctly conducted trial would, in the normal course of things, take account of aggravating and mitigating circumstances. If the Government insists on proceeding with this legislation we recommend that the following safeguards be introduced: · That the term "vicinity" be defined · That a requirement to demonstrate that an alleged supplier "knew" or "could reasonably have known" that a courier was under 18 be introduced · That the Government adhere to the recommendations of the Home Affairs select committee and produce a similar category of "peer supply" which the courts would be obliged to consider as a mitigating factor. Clause 2: Proof of intention to supply a controlled drug It is an offence under the Misuse of Drugs Act 1971 to possess a controlled drug with intent to supply it to another. This clause in amends section 5 to create a presumption of intent to supply where the defendant is found to be in possession of a particular amount of controlled drugs. Critique: The proposal here is that the Home Secretary will draw up a list of "prescribed amounts" which will be added to the Misuse of Drugs Regulations. Possession of quantities greater than the "prescribed amount" will automatically be considered proof of intent to supply a controlled drug, unless evidence to the contrary is provided. The quantities in question will be drawn up in consultation with the ACMD but Parliament will be required to endorse the final regulation. The Government has long avoided drawing up such a list of prescribed amounts. In the past, drug legislation reformers have argued that such a measure should be drawn up to define what constitutes "personal possession." The Government refused to do so on the grounds that defining such amounts would provide a "cut off," meaning that as long as people possessed below the "prescribed amount" they would only be prosecuted for possession. The fear on the part of Government was that suppliers would therefore, routinely carry the "prescribed" amount, reducing the risks of being charged with supply. It is hard to see how the above proposals do not create the same risk; if a court must consider that an amount above the "prescribed" amount is proof of intention to supply, then logically possession of an amount below this will be the amount considered to be for personal possession. Unless the thresholds for "prescribed use" are set to am adequately high level, some people will be erroneously convicted for intent to supply. Both recreational and dependent users do by drugs in bulk to reduce costs and ensure stability of availability. For a dependent heroin user, a month's supply could exceed 30gms of heroin and so a threshold below this would leave such users at risk of wrongful prosecution. KFx response: We would suggest that there be a proscribed amount which would equate with personal possession. We believe that it is for the courts to establish if a person's intent was to supply a drug using available evidence and as such the establishment of set quantities that equal proof of intention are not helpful. Part 2: Police powers relating to drugs Clause 3: Drug offence searches This clause amends section 55 of the Police and Criminal Evidence Act 1984, which provides for an intimate search of a person where it is suspected that the person may have a Class A drug concealed on him. Clause 4: Drug offence searches: Northern Ireland Clause 4 makes provision equivalent to clause 3 for Northern Ireland. Clause 5: X-rays and ultrasound scans: England and Wales This clause enables a police officer to authorise an x-ray or ultrasound scan (or both) of a person suspected of swallowing a Class A drug, where the person has been arrested for an offence and is in police detention. Clause 6: X-rays and ultrasounds scans: Northern Ireland Clause 6 makes provision equivalent to Clause 5 for Northern Ireland. Critique: We welcome the restraints that apply to the use of X-ray and Ultrasound; we assume that this would mean that the use of "portable" x-ray equipment as used in Lewisham in October 2004 would not be lawful and that the future use of such equipment to search for drugs will become unlawful. We are concerned that a number of "new" techniques have been developed and implemented by the police which are of dubious legality under PACE. This includes the assertive use of sniffer dogs against people to provide grounds for a search, and the increasing use of vapour-trace machines, especially in pub and club settings. KFx Response: We would like to see greater clarity in these situations, including: · Guidance on the use of sniffer dogs in public settings, and the establishment that the use of a sniffer dog on a person without consent is unlawful. We consider that the use of a sniffer dog, as with the use of any other vapour or other detecting equipment requires the suspect's informed consent. · Guidance on the use of vapour-trace machinery: failure to submit to a vapour or swab test in a public place should not be considered, in its own right, grounds for a search. We want to see this written in to PACE alongside other revisions to police powers to search. Clause 7: Testing for presence of class A drugs This clause makes a number of amendments to the Police and Criminal Evidence Act 1984 (PACE) to allow for the introduction of drug testing of persons after arrest. The existing provisions for testing after charge remain. The new provision will apply to persons aged 18 and over. Critique: This power is linked to the subsequent requirement for those who test positive for heroin or cocaine to attend a mandatory initial assessment. See below for further details. Clause 8: extended detention of suspected drug offenders This clause will allow a court to remand a prisoner to the custody of a police officer where it is suspected that the prisoner has swallowed drugs to conceal evidence and avoid prosecution. Currently the police may detain a person in police detention under the Police and Criminal Evidence Act 1984 for a maximum of 96 hours prior to charge. This is not necessarily a sufficient period of time for swallowed evidence to be recovered. Critique: Under this clause, a person could be detained for up to 192 hours ( 8 days) to wait for drugs to pass through after they have been swallowed. However, in the RIA assessment, the Home Office acknowledges that only limited numbers of people could be held due to the restricted nature of such detention facilities and estimates that 100 people per year would be thus held. The RIA takes in to account court costs but makes no assessment of the financial costs to the police of the additional 9,000 hours of detention time this could accrue. We are also concerned that such a measure would allow a more extended period to interview the suspect: we would want protection written in to the legislation to ensure that such extended detention is solely used for drugs to be excreted and is not used as an opportunity for prolonged interviews. Part 3: Assessment of misuse of drugs Clause 9: Initial assessment following testing for the presence of class A drugs This clause introduces a new discretionary power for the police to require persons who have tested positive for a specified class A drug under to attend an initial assessment of their drug misuse. Clause 10: Follow-up assessment This clause provides that a police officer must, when imposing a requirement to attend an initial assessment under clause 9, also require the person to attend a follow-up assessment and must inform the person that this second requirement will cease to have effect if he is informed at the initial assessment that he is no longer required to attend the follow-up assessment. Clause 11: Requirements under sections 9 and 10: supplemental This clause imposes a number of obligations on police officers where they require a person to attend an initial assessment under clause 9, or both an initial assessment and a follow-up assessment under clause 10. Clause 12: Attendance at initial assessment This clause places a duty on the person conducting the initial assessment to inform the police if the person concerned fails to attend or remain for the duration of that assessment. Clause 13: Arrangements for follow-up assessment This clause sets out the arrangements for a follow-up assessment. Clause 14: Attendance at follow-up assessment This clause places a duty on the person conducting the follow-up assessment to inform the police if the person concerned fails to attend or remain for the duration of that assessment. Clause 15: Disclosure of information about assessments This clause provides that information obtained as a result of the initial assessment or follow-up assessment may not be disclosed without the written consent of the person concerned except in the case of information sharing with those involved in the conduct of the initial assessment and follow-up assessment. Clause 16: Samples submitted for further analysis This clause provides that a person will no longer be required to attend an initial or follow-up assessment if, before he attends that assessment, a further analysis of the sample taken reveals that it was negative. Clause 17: Relationship with the Bail Act 1976 etc. This clause provides that a requirement to attend either an initial assessment or a follow-up assessment ceases to have effect if, before he has complied with the requirement in question, the person is charged with the offence in respect of which the drug test was taken and is granted bail by a court on the condition that he undergo a relevant assessment and/or participate in follow-up under the Bail Act 1976. Clause 18: Orders under this Part and guidance This clause provides that an order made by the secretary of state amending the age at which persons may be required to attend an initial assessment and a follow-up assessment may make provision where appropriate in respect of persons under the age of eighteen, may make different provision for different police areas and must be approved in draft by both Houses of Parliament. Clause 19: Interpretation This clause defines a number of terms that are used in Part 3 of the Bill. Critique: This is one of the most substantial shifts in policy and practice within the bill, and the one with the most substantial ramifications for both users and the field. Essentially, everyone who is suspected of a trigger offence or where there are suspicions of drug use will be tested for the presence of drugs on arrest. Where this test proves positive, a person will be obliged to attend an "initial assessment" with an "initial assessor." Unlike traditional arrest referral scheme, attendance for an initial assessment is mandatory and failure to attend and complete an initial assessment is an imprisonable offence. Should the initial assessment indicate that it is appropriate; the person will then be obliged to attend a "follow-up assessment." Again, failure to attend a follow up is an imprisonable offence. The outcome from the follow-up assessment should be the development of a care-plan. We welcome the idea that all offenders who have an identified drug related issue should be able to access support and treatment services rapidly. However, we cannot endorse the coercive nature of the model proposed. We believe that existing arrest referral processes - offering support and input from an independent worker at the point of arrest - has been productive. We believe that a coercive process is less likely to result in an honest and therapeutic engagement between drugs worker and user. The RIA is flawed, working on the basis that only 5% of people required to attend an initial assessment will fail to attend this appointment. We would anticipate that the DNA rate will be significantly higher than 5%, and there will be a drop-out rate before the initial assessment and again before the follow-up assessment. The maximum sentence for failure to attend an initial or follow-up assessment would be initially 3 months but would go up to 51 weeks when changes to penalties within the Criminal Justice Act 2003 come in to force. The implementation of this strategy will require a substantial increase in spaces for assessment workers attached to drug projects or other agencies. Part 4: Miscellaneous and General Clause 20: Intervention Order This clause amends the Crime and Disorder Act 1998 (the "CDA") in relation to Anti-social Behaviour Orders (ASBOs) and provides for a new order which can be made alongside an ASBO when drug misuse has been a cause of the behaviour that led to the ASBO being made. Critique: An Intervention Order can be made where "antisocial behaviour" is considered to be related to drug use. The court can attach an Intervention Order to the antisocial behaviour order which will then require the person to attend activities designated by the court. The Intervention Order will reflect the opinions of a "suitably qualified assessor" such as a drugs worker. Failure to attend and fulfil the requirements of the order would be an offence carrying a £1000 fine. The RIA guesstimates that 100 such orders will be made each year and that there will be only 10 breaches. We welcome any process that improves and increases access to treatment interventions. However, we are concerned that the coercive nature of the Intervention Order has a negative impact on the therapeutic relationship between drugs worker and client. It seems perverse that, on the one hand a client may finally have the chance to engage with a counsellor but that the counsellor will be obliged to report the client if they fail to attend an appointment. However, we remain more concerned by the imposition of ASBOs on people with a substance misuse problem and in comparison to this, the development of Intervention orders seems comparatively benign. Clause 21: Inclusion of mushrooms containing Psilocin etc. as Class A drugs This clause inserts into Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 a fungus of any kind that contains the drug Psilocin or an ester of that drug. Critique: It is no surprise that the Government has decided to change this legislation, but it is disappointing that rather than pursue a licensed scheme or look at reclassifying and rescheduling mushrooms, they should remain a class A drug. If the Government proceeds with this piece of legislation, land-owners who know that hallucinogenic mushrooms are growing on their land may be committing an offence if they fail to remove them. According to Transform, the Government intends to create space within the Regulations to cover this situation but no reference is made to this in the Bill. Bizarrely, the RIA does not foresee any additional court costs - even though anyone found in possession of fresh magic mushrooms will become liable to prosecution. The Home Office appears to believe that once this comes in to force people will simply cease to possess magic mushrooms. Response from KFx We appreciate that hallucinogenic mushrooms can have a negative impact on mental well-being, especially amongst people prone to poor mental health. However, we consider such mushrooms to be consider mushrooms considerably less hazardous than either LSD, Ecstasy or amphetamines. As such it would seem more appropriate to reclassify mushrooms to class C, and, as with anabolic steroids, remove the penalties for personal possession. We believe that a better response would be: · To reclassify and reschedule whole magic mushrooms to Class C, schedule 4(ii) · To classify extracted psilocin and psilocybin as class B schedule 1 drugs. · To agree a retailers code of conduct including maximum quantities for single sales, age restrictions, and warning wordings or packaging. Prior to the bill's publication, the Home Office had made reference to a collection of proposals which, fortunately, did not make it in to the final bill. This included a proposal to make it an offence to have controlled drugs in the blood-stream. However, there are more than enough half-baked, ill-conceived, inadequately costed measures as the bill stands. In a functional democracy, a series of well-conducted debates in Parliament would reveal the failures of the this bill. However, given the current failures of our parliamentary democracy, it seems unlikely that such a debate will take place. Consequently our already-flawed drugs legislation will be augmented by further clauses. The Government appears keen to take this legislation forward prior to the General Election. By appearing to pass tough, anti-drug legislation, the Government is once again seeking to garner votes. But a close examination of much of the proposed bill reveals attention-grabbing measures for popular consumption, and a missed opportunity to revise outdated and obsolete legislation. Amendments and Repeals: Notably, the legislation Bill includes the following amendments and repeals: Schedule 2(6) Repeals Section 38 of the Criminal Justice and Police Act 2001. Critique: We welcome this repeal, but would note that the Home Office introduced this piece of legislation in haste, without consultation, on the run up to a general election in a cynical attempt to garner votes. An entire election later, the Government decides to scrap this piece if legislation. Responses from KFx We also think that this repeal does not go far enough and would recommend: · Repeal of Sections 8(c) and 8(d) of the Misuse of Drugs Act 1971 The Government created a ludicrous inequality by creating a situation where the penalty for possession of cannabis was reduced, and a presumption against arrest for personal possession was created. However, housing providers were left in the unenviable position of being obliged to prevent cannabis use on site. While some regions have pursued an approach of negotiating "Cannabis Protocols" with the police, this is not an ideal response. It would have been preferable to remove section 8(d) of the MDA altogether. Given the Government proposes to repeal Section 38 of the Police and Criminal Justice Act 2001 it would have seemed sensible and fair to repeal section 8(d) at the same time. Schedule 2(7) relates to the Antisocial Behaviour Act (Power to close premises) and empowers a constable to enter any premises to issue a closure notice, using force if necessary. The reality is that, given the attendant risks of entering such a property it would be foolhardy for a single constable to enter such a property and so this power would require a sufficiently large number of policy enter to issue the notice. Effectively what this means is that the service of a closure notice could now be accompanied by several police officers putting the door through and entering the property "solely" for the purpose of affixing a notice to a prominent site. Given some Police forces' misuse of these powers, it seems highly unlikely that, once in, the police would restrict their actions solely to serving the closure notice. We would expect to see some additional safeguards attached to this power and so recommend: · The legislation be amended to ensure that any other police actions beyond serving the notice be considered unlawful and any evidence thus garnered or charges brought shall be considered inadmissible. A missed opportunity: A drugs bill was a golden opportunity to address some of the long-overdue revisions to the Misuse of Drugs Act 1971 and related legislation. Amongst other changes we would have advocated for the following: · Changes to the legislation on Storage of Controlled Drugs The Home Office has been aware for over five years of the need to revise the MDA to allow the legitimate storage of prescribed controlled drugs in care settings. Charles Clarke was amongst those who agreed that such a measure was required. · Further revision to paraphernalia legislation We would have welcomed further changes to the Paraphernalia legislation to make it lawful to distribute a wider range of harm-reduction resources including the distribution of foil, crack smoking equipment and other equipment. Additional Comments Whatever happened to consultation? The Government has ceased to consult properly and honestly with stakeholders when developing drugs policy and legislation. Little in the current bill reflects the opinions or views of the Home Affairs Select Committee, or seems to reflect recent considerations by the ACMD. Instead it seems to be an agenda led by the Home Office, driven by its obsession with the folk-devil of antisocial behaviour. This is twinned with some of the ideas secretly generated by the Forward Strategy Unit and the "blue sky thinking" on drugs led by John Birt. In January 2004, proposals from the FSU leaked to the media included the following: a greater emphasis on enforced treatment, and looking at a regime that orders imprisonment or treatment for anyone testing positive for heroin. Looking at who was consulted prior to drafting the bill is indicative of how much the Government is drafting legislation in isolation, and failing in its social and professional obligations to consult: The Explanatory notes and the RIA make repeated reference to "experts" or "anecdotal information" and all too frequently there is no evidence base to support the assertions. There is the anecdotal assertion that suppliers are targeting school children - whereas the DoH's own research says that more than 70% of school-children first obtain drugs from their peers. There is also the assertion by unnamed "experts" that the Magic Mushroom market cannot be expected to self-regulate: indeed experience to date (and internationally) would suggest the opposite. Given the importance of effective and planned drugs legislation, we strongly urge the Government to resume effective and informed consultation with the all sectors of the drugs field -recreational and dependent users, youth workers, drugs workers so that effective and balanced legislation can be developed. Watch the money go round? Colossal sums of money have been spent over the past few years on "enforced" treatment. A number of existing agencies have increased massively in size on the back of winning contracts o deliver this enforced treatment. They have expanded in terms of staff and in terms of money. To put it bluntly, they have profited handsomely from the new orthodoxy of drugs and crime. Increasingly, these organisations have become dependent on Government money. Beholden to the Home Office or the NTA , they are increasingly required to toe the party line, not challenge, not contradict. This has led to the dominant paradigm - the inextricable link between drugs and crime, and that treatment (including enforced treatment) works. In a field which was once typified by diverse opinions and a willingness to challenge, there are now few truly independent voices. Most have agreed to take the Home Office silver in order to survive. New organisations have sprung up solely to deliver the Government agenda. Now, in the face of the Drugs Bill, a small number of these bodies have started to express their concern about the further increase on the "criminal" aspect of drugs rather than the care and health aspects. They are starting to question the direction and slant of the Government Agenda. The real acid test, though, will come at tendering time. Will these same agencies be unwilling to take on the role of Initial Assessors and undertake intital and follow-up assessments? Will they refuse to report people who fail to comply with an Intervention Order? Will they continue to provide tacit (or active) support to the "War on Drugs" through their unwillingness to speak out loudly, publicly and unequivocally to challenge this slide to the right? Conclusion: The Government has produced a rushed, thin bill which fails to address some of the real needs of the field whilst pandering towards the drugs and crime agenda. Whilst it will undoubtedly serve the Government well at the ballot box, we are not convinced that it will improve the quality of interventions or reduce drug use or drug related harm in the UK. KFx: December 2004 To download this document as a PDF click HERE To view the Drugs Bill go HERE To view the Explanatory notes go HERE To view the Regulatory Impact Assessment (RIA) go here To see what Drugscope and Turning Point have said go HERE For the Transform website and their response (forthcoming) go HERE
	The Decline and Fall of David Blunkett We had been in the process of writing a piece about David Blunkett and the vendetta against perceived antisocial behaviour. However, overtaken by events, his removal from power has come, not from pursuing a series of draconian and punitive measures against refugees, asylum seekers, economic migrants, people suspected of terrorism, drug users and young people. Instead it came from the hubris of believing that, while the state had every right to stick its nose in to the private lives of its citizens, he was entitled to privacy while he conducted illicit trysts. Mr Blunkett has overseen a Home Office that has eroded civil liberties to a greater extent than any other peace-time Government. Traditional rights - including property rights, right to free assembly, freedom of speech and freedom of movement have all been stripped away. Not because of someone's offending behaviour - but because of unproven allegations that behaviour could be considered "antisocial." Other rights, including Habeas Corpus have been ignored and as his last act before resigning, he has introduced the prospect of ID cards on spurious , anti-terrorist grounds. While we do not hold out massive hope that any successor will adopt a more even handed approach, we are not in the least saddened to see the back of Mr Blunkett, one of the few people to make Michael Howard look relatively liberal! Image from Banksy: http://www.banksy.co.uk/
	Spinning Wheel Blues Inconsistent policies on drugs and gambling demonstrate Government confusion on both habits. Amidst all the sound and fury regarding the Government's plans to reform gambling, few commentators have spotted the obvious comparison between Government's approach to gambling and to drugs. Simon Jenkins, writing in the Evening Standard, was one of the few. He noted "If any law is in urgent need of reform, it is the thus ineffective 1971 Misuse of Drugs Act. It does far more harm to minors than do fruit machines. Yet Ms Jowell and her colleagues will touch it." Looking at the arguments put forward by the Government in support of it's reforms of gambling, one would be hard put to fault exactly the same arguments if put forward for drugs reform. In an article, again in the Standard, Tessa jowell defended her bill thus: "if adults nake the rational informed decision to gamble, they should be allowed to do so. They should be encouraged to do it in places tha are crime free and properly regulated. Above all else, children should be protected from the temptation to gamble." A key thrust of the Govenment's thinking is that a lack of control has created greater risk to young people. The arrival of high-prize gaming machines in venues used by young people exposes them, the argument goes, to temptation and risk. A licensed and regulated market would remove these machies from these arenas, and limit them to venues where only adults would access them. If one substitutes "use drugs" for "gambling" in Jowell's argument, the argument is all but identical to the arguments put forward by drug policy reformers. Fear has been expressed, both in terms of drugs and in terms of gambling that proposals to change the law will result in an increase in problem gambling and gambling addiction. Here, Jowell offers a different analysis, and again one that is wholly appliable to the drugs field. She argues: "to judge an entire industry by the people who can be addicted by its product is similar to closing down every pub in the country because of the lif story of an alcoholic. It is not possible to close down an industry and prohibit people from what they consider a pleasure because of the tragedy of a few." Again, these are sentiments that most drug reformers would recognise and applaud. After this, however, the Government's approach to gambling and the vision of the drugs reform lobby go in sharply different directions. While the current spin put on the Gmablig reform is one of "protection through regulation," the other is one of "profit through expansion." The licensing and development of larger casinos, the facillitation of local authority licensing and the projected profits for local and state profits are aspects which demand an increase in the number of gamblers and, by association the number of problem gamblers. This is where the approach to gamblig and to drugs part company. Drug reform proposes control and safety through license and regulations. A key model is distribution through medical routes for some drugs and controlled and regulated markets for others, notably cannabis. Most drug reformers would abhor an approach which saw big corporations take over this market and actively recruit new users. The Government is, on the one hand, right to think that regulation is safer than a absence of safeguards. This applies to drugs as much as gambling. But to then actively promote and expand such a market would be indefensible to both too.
	The Met ain't so pretty either: The new metropolitan Police campaign that uses the images of drug-dependent women to highlight the dangers of drug use is grotesque. The images themselves are disturbing and distressing, but they are not new. They have been circulating on the internet, and the Nimby-wesbsite "Crack Cocaine in Camden" has had a link to the images for a couple of years. Pictures of three women are used; Roseanne Holland, Melissa Collara and Penny Wood. Holland is believed to be dead, Collara was not contactable and Wood is in treatment. So the Met are exploiting the images of three tragic women. Depersonalised and exposed to the shocked looks of public they disintegrate before our eyes. UK arrest pictures could not have been used as it would breach confideniality. But the Met have no such qualms about scooping images off the net and using them. They are exploitative, breach decency and ultimately they are ineffective. The images are as much a condemnation of the US war on drugs, and the failure of the US penal and treatment system as they are of the drugs themselves. Collara was arrested 18 times in three years. Where were the interventions, the opportuities to engage with both harm reduction and with treatment. Holland was arrested at least five times in eight years. Collara had (according to the Daily Mirror) been sexually abused and had lost her mother at an early age. She was engaged in drug use and prostitution. But despite repeated arrests, the help she so badly needed was clearly slow in coming. Ultimately it was not that the "system" got it right for her but one police officer who viewed her as a person needing help rather than a criminal. The failure of the war on drugs is manifest. The failure of the criminal justice system that failed these women is written across each face. And the failure of a policy that makes needle exchange illegal and fails to offer adequate education past "just say no" is etched across these billboards. In the good old days of drugs education, the police used to use the gore fest "Better off dead" to scare would-be users away with footage of autopsy - again of a dead female user. Thirty years later they are using the same approach - but with new images. But where do they go next? More shocking images? More gore? As any body with any media-awareness knows, this process is ultimately self-defeating. We become inured to horror, harder to shock. We cease to care or even notice and the images cannot touch us. The effects of crack can be extremely damaging; but ill-considered advertising can damage us too. And this damage is so much less obvious. KFx November 2004 Click on poster for full size image!