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Easy as A, B, C: Three Problems with UK Drug Law

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About The Author

Peter Lennon (Joint Editor-in-Chief )

Peter Lennon recently completed the LPC at the University of Sheffield, and is a future trainee of Mills & Reeve LLP. Before law, Peter studied History at Selwyn College, Cambridge. His main areas of interest are corporate law, administrative law, and legal policy. Outside the law, Peter enjoys writing, cooking, and pretending to know about football.

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If you want to understand a society, take a good look at the drugs it uses.

Bill Hicks

Following a general election dominated by Brexit, immigration, and the economy, it is perhaps unsurprising that drugs and other social issues took a back foot in 2017. Of the three major parties, only the Liberal Democrats devoted significant space in their manifesto to the issue, delivering a damning critique (and promising reform) of the War on Drugs. In contrast, the Conservatives said little and offered no more than functional tweaks to the current policy (in line with Theresa May’s history as Home Secretary) while Labour said even less, despite Jeremy Corbyn’s personal history of supporting cannabis decriminalisation from the backbenches.

Decriminalisation – particularly of cannabis – is by far the most active political football in this area in both traditional and social media. Its progress is aided, no doubt, by the fact that it conforms well to partisan politics: older and conservative voters are more likely to oppose decriminalisation, while younger and more progressive voters are more likely to support it. There is no need to add to the mountain of arguments and evidence provided for and against that particular policy: for Keep Calm Talk Law, Rebecca von Blumenthal has already discussed the matter in some depth in relation to cannabis, while Jessica Johnson offered insight on the alternatives to criminalisation.

Instead of re-treading the same ground, this article focuses on three other issues in the realm of drug law that should provoke thought for those of a legal bent  all without any further mention of legalisation.

Drug Law - What is it Good For?

When considering why drug laws exist, the obvious answer might be, “to prosecute drug users”, in much the same way the answer to the question “why do we have criminal laws?” might be “to prosecute criminals”. This is technically correct, but law students giving that answer under exam conditions should not expect see their grades skyrocket. After all, the question of why certain chemical substances have been deemed not just unfit for human consumption but punishable by the state – up to and including the point of depriving a person of their liberty – is more complex than that.

Most of the UK’s current drug laws originate from the Misuse of Drugs Act 1971 (MDA 1971), the preamble of which provides a possible explanation:

An Act to make new provision with respect to dangerous or otherwise harmful drugs and related matters, and for purposes connected therewith.

So, why are certain drugs provided for in the MDA 1971, and others not? Because these drugs are ‘dangerous or otherwise harmful’. Whom are they harmful to? Primarily, those who consume them. This is an important point that should not be glossed over: unlike many other criminals, those who contravene the MDA 1971 are usually harming themselves by their actions. They hold a dual role; they are the perpetrator of the act and victim of the harm.

At the same time, these substances are also clearly ‘dangerous or harmful’ to members of the public by the same means as alcohol: disorder, drunken affrays, and driving under the influence. So, the goal of public protection might be added as another function of drug laws.

This can be combined with a third long-held objective: the reduction of the overall circulation of drugs in the UK, particularly through organised crime. Though it is highly debatable whether the UK’s laws have worked in this regard, this is a matter outside the scope of this article, the focus of which is on the objective of drug laws.

That objective is evidenced rather simply in the MDA 1971: the penalties for importing and supplying drugs are universally higher than those for possessing them. The law takes a harsher view of drug dealers than drug users, and that distinction has grown wider since new sentencing guidelines were passed in 2012. Following a public consultation which found the public supported harsher-than-current sentences for large-scale importers, but more lenient sentences for small-scale importers and basic possession, the recommended sentences for basic possession were steeply reduced.

These, then, are the three identifiable objectives for the current slate of drug laws:

  • Protecting drug users from the harm these drugs cause.
  • Protecting non-users from harm relating to drug use.
  • Preventing/reducing the circulation and supply of drugs in the UK.

This may not be an exhaustive list, but these three policy objectives are worth bearing in mind in any discussion of current drug laws.

Problem 1: “Legal” Highs

The first problem is a technical one. The MDA 1971 provides a list of substances, in three schedules (Class A, B, and C), which are deemed harmful enough to require legal sanctions. The list is positive and definitive. If a substance is on the list, it is illegal. If it is not, it is not. This is a problem when said substances are largely accidents of chemistry, and any number of chemical combinations may produce substances with similar appearances, effects, and dangers – but different compositions.

This is the problem that has confronted the government in recent years with the rise of so-called legal highs, also known as “new psychoactive substances” (NPSs). As the name suggests, they are new and novel, and therein lies the legal problem. While it should be stressed that statistics show that the death toll from legal highs pales in comparison to heroin or cocaine, it has seen a steady up-tick in recent years, and the use of NPSs has grown noticeably. Confronted with mounting pressure and tabloid panic, the government attempted to deal with NPSs under the MDA 1971 and ran headlong into the obstacle outlined above: amending “the list” by legislation simply cannot keep pace with an innovative chemist making slight adjustments to circumvent that list.

The government’s solution was, at least in theory, a sound one: rather than a positive list of banned substances, they would institute a blanket ban on psychoactive substances with exemptions made for those substances with a long history of legal use – alcohol, tobacco, caffeine – or a reasonable purpose in mind, such as medical use or scientific study. Instead of islands of illegality in a sea of legal substances, the law would create islands exempted from an illegal sea. This line of thinking became the Psychoactive Substances Act 2016 (PSA 2016).

The early failures of the PSA 2016 are a good illustration in how sound ideas can come unstuck upon meeting reality. Early on in the drafting, the government was forced to make amendments after outcry among the LGBT+ community over the proposed outlawing of “poppers”, a muscle relaxant used particularly by gay men. Later in the legislative process, members of the government’s own Advisory Council on the Misuse of Drugs (ACMD) were warning that the provisions within would be unenforceable in a court of law, much as a similar law in the Republic of Ireland in 2010 has resulted in few prosecutions and ever-increasing rates of use.

Furthermore, from a statutory interpretation perspective, there seems to be little issue of clarity in Section 2(1) of the PSA 2016:

In this Act “psychoactive substance” means any substance which-

(a) is capable of producing a psychoactive effect in a person who consumes it, and

(b) is not an exempted substance.

The problem is not one of law, but science. As the ACMD were quick to point out, there is no proxy test that could prove (beyond reasonable doubt, as is required in the criminal courts) that a substance would produce a “psychoactive effect” in a person. The government’s proposed in vitro tests (for instance, using samples of human tissue in a laboratory environment) are not enough: the only definitive proof of a “psychoactive effect” is effectively for a person to take the substance and see what happens. There are any number of reasons why this is not recommended practice for a courtroom setting.

As recently as August 2017, two of the first contested prosecutions under the Act collapsed in the Crown Court – one in Southwark and one in Taunton – in what the BBC described as the “laughing gas cases”. While recorded judgements are not available from the Crown Court, the defence – and the resulting decisions – presumably rested on the classification of nitrous oxide as a medical product despite it also being used recreationally by hundreds of thousands of people every year.

Ultimately, the issue of so-called “legal highs” demonstrates the fundamental difficulty of legislating on such a broad category as “drugs”. If the government wished to institute a blanket ban on tobacco, advisable or not, they would have little technical difficulty. Legislating on drugs, however, is an effort hamstrung almost immediately by problems of definition, the readiness of the market to invent new and novel substances the instant older ones are outlawed, and the persistent need to preserve certain activities – social drinking, coffee drinking, or over-the-counter medication – against a blanket ban.

Problem 2: The Dual Role of Users

If legal highs present a technical problem, then the dual role of drug users presents a legal, almost jurisprudential one: how should the law treat a drug addict? Are they the perpetrator of a crime, the victim of a harm, or perhaps more confusingly, both?

It is one of the oddities of English law that possession and supply of proscribed substances is illegal, but taking them is not. This is perhaps comparable to the status of prostitution in the UK, bound up as it is with concerns over human trafficking and exploitation of those who are – technically speaking – the “wrongdoer” in the situation. Under the Sexual Offences Act 2003, the act of prostitution remains completely legal in the UK. Solicitation for the purposes of prostitution, however, is illegal – as is causing, inciting, controlling, or paying for it.

While drug use and addiction is certainly stigmatised in the UK, the legal and criminal machinery in place is geared towards turning an addict into a functional member of society, not locking them away as society might, say, a murderer. Political disagreements tend to be over the method, not the aim: both Conservative and Labour manifestos in 2017 agreed that the impetus should be towards reform of individuals, not moralistic punishment.

It has already been noted that the new Sentencing Guidelines introduced in 2012 reinforced this perception by widening the gap between punishments for basic possession and punishments for supply and import. This was the result of a public consultation by the Sentencing Council. It was based, in other words, on a societal notion that if someone is to shoulder the responsibility for the harm done by drugs (again and worth reiterating: primarily to drug users) it should be drug dealers, particularly large-scale importers, rather than recreational users.

However, once the law is “in the wild”, it may grow and evolve in the way that the English common law infamously does. For instance, it seems that the public at large has a fairly well defined idea of who a drug dealer is, and why they should be punished: they are an individual profiting from, and to some extent pushing, the harmful drug habits of others.

But while this definition appears in common English to have a great deal of overlap with supply offences, it appears that the common law does not treat them as synonymous. Indeed, in the case of R v Ibrahima [2005] EWCA Crim 1436, the Court of Appeal confirmed that “supply” does not require a commercial basis - that is, the offence of supplying drugs is not synonymous with selling drugs. Logically extended, the act of passing a joint may fulfil the criteria of a “supply”. In fact, this is exactly the determination reached by the Crown Court in R v Moore [1979] Crim LR 789.

Another strange development arising out of common law is the absence of a duty of care on the part of drug suppliers – specifically with regards to deaths as a result of the drugs they supply. The law provides that a person can commit manslaughter by the failure to rectify a dangerous situation which they caused and were aware of. This is the ratio of R v Miller [1982], in which a vagrant was charged with arson after he failed to extinguish a building fire that was started by his lit cigarette. However, not only does the law not recognise this duty with regards to supplying drugs, the common law has explicitly decided against it. In R v Kennedy [2007], the House of Lords decided that supplying and aiding in the administration of heroin was not an “unlawful act” for the purposes of manslaughter because, in Lord Bingham’s words:

The criminal law generally assumes the existence of free will… generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act…

In other words, the House of Lords prioritised the drug user’s autonomy (and the responsibility for his own actions) over the broader notion of holding drug suppliers responsible for the harm their products cause. It is worth noting that the correctness of that decision is not in question. It might raise the question as to whether a drug addict is truly making a “free, deliberate, and informed intervention” of the kind Lord Bingham describes, or the argument  that respecting the victim’s autonomy (and presumably punishing him appropriately had he lived) is not mutually exclusive with holding the supplier responsible for the consequences of his actions, but regardless, the decision in R v Kennedy [2007] is not at issue.

The important point is that common law decisions relating to drugs do not always follow the neat lines of policy and societal beliefs outlined above. Both policy guidelines and public opinion consider that the law should provide severe penalties for those profiting from drugs, and fairly lenient penalties for those using them. Yet here we have case law that unfairly deems the social user in R v Moore [1979] Crim LR 789 to be a supplier, and that finds the drug dealer in R v Kennedy [2007] to bear no responsibility for the death of a man he provided and helped to administer heroin. The great strength of the common law – its flexibility – is also the very thing that makes it an ungainly tool for achieving policy objectives by prescribed means. Errant judicial decisions – be they on laughing gas or a heroin overdose – can derail efforts to give the law a unified thrust.

The lesson for lawyers is that the law – although the centre of their particular universe – is in reality just a tool, a method of approaching problems. It does not provide answers in and of itself. Neither statute nor common law has yet produced a satisfactory answer to one of the key issues of legislating around drugs: the nature of addiction, the dual role of the addict as perpetrator and victim, and the extent to which two competing policy considerations (individual responsibility versus a desire to combat the drugs trade) should be prioritised.

Problem 3: Sentencing Under Austerity

An unspoken practical problem underlies everything that has been discussed so far. The law does not operate in a vacuum, and as is often the case, the most problematic question may not be what, or why, but how? Just as the value of the PSA 2016 can be questioned because it presents police and prosecutors with an almost impossible task (proving “psychoactivity”), it is also possible to question the value of a sentencing regime which relies on a system already stretched to bursting point.

Against a backdrop of austerity and budget cuts, British prisons are undergoing a prolonged – and surprisingly quiet – crisis. As reported by the BBC, staffing numbers have fallen by almost a third since 2010, a number of prisons have been closed, and yet the number of prisoners continues to increase as it has since the 1990s. The prison system is stretched thin, and there is scope for another article entirely on the prevalence and easy availability of both drugs and legal highs in British prisons: in 2016 alone, the Prison Service confiscated 225kg of drugs from prisoners, likely just a fraction of the full amount in circulation. This is not a suitable environment for rehabilitating drug users.

This is not news. As Luke Vaz has argued for Keep Calm Talk Law, there are cogent arguments against the mechanics of the current prison system, and many would certainly argue that prison does not have a place in the rehabilitative process. To an extent, the legal system agrees: the majority of drug offences, at least for possession, do not receive a custodial sentence. Community orders, rehab programs, and fines – the under-appreciated workhorse of the British legal system – are all far more common.

How problematic, then, that the same funding cuts which are leading to the prisons crisis are also impacting substance misuse services. In 2010, the Coalition government dismantled the National Treatment Agency (NTA), as well as transferring responsibilities for the budgets and organisation of substance use services to local authorities, whose own budgets have been slashed year after year. Add to this the government’s cuts to overall public health spending and the current crisis state of the NHS, and the picture becomes bleaker still: in 2016, a report by the Blenheim charity found that 38% of community drug services and 58% of residential services reported decreases in funding the previous year, and it was feared some local authorities were unable to provide community-based alternatives to custodial sentences, further increasing pressure on the prisons. The increasing unsuitability of the prison system has not been balanced out by an improvement in rehab services: the two are declining in tandem, leaving the criminal justice system unfit for purpose when it comes to drug offences.


This article is not, in truth, about drug law. It deals with it extensively, but is not about it. As a policy statement, it falls short; as an argument it offers few answers, only highlights problems. If there were easy answers to these problems, they would have ceased to be problems some time ago.

What this article seeks to do is to make lawyers – students and practitioners alike – think about the law in a wider context. It seeks to highlight some of the problems inherent in the English legal system, by taking a simple and (it is hoped) fairly unobjectionable proposition – “the law should take steps to protect people from the harm of (at the very least) hard drugs like heroin and cocaine” – and showing some of the problems that have arisen, particularly those arising from a narrow, intent focus.

The boom in NPSs, for instance, shows the need to future-proof legislation, and demonstrates how old statutes may be rendered ineffectual in a relatively short period of time. After all, the MDA 1971 is not an aged Victorian statute, but a product of the 1970s. However, the government’s ham-fisted attempt at a solution raises another point of discussion: how effective can legislation be when the English system demands it be drafted by those who have no knowledge of how the legal system operates, or the subject matter they legislate on?

Likewise, the cases of R v Ibrahima [2005] EWCA Crim 1436 and R v Kennedy [2007] help illustrate that the law is not a monolith. English law is a complex, organic, and at times contradictory beast, with decisions sometimes hinging on technicality, interpretation, or a particular judge’s moral sensibilities. Entirely legally valid judgements may arise that contradict the public’s sense of the law, the policymaker’s intention, and even each other. The practical question of how goes further and points out that, much as lawyers may wish to disagree, the law is not always of paramount importance if the criminal justice system is not practically fit to execute it.

When the law is examined with a narrow focus, it is possible to lose sight of context. It is important to remember that the law is not an end unto itself. The law is a tool, a language, a method of doing things and context is vital to make sure it is doing those things effectively. The legal system is rendered ineffectual if society lacks the capacity to enforce its rules and carry out its sentences, and for anyone with a legal interest, the efficacy of the law should be of just as much concern as its content.

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Tagged: Criminal Law, Drugs, Medical Law & Ethics, Prisons

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