KFx Drug News Archive09.05

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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