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Submission from Transform Drug Policy Foundation to the Home Office Consultation on Clause 2 of the the Drugs Act 2005 Click here to read details of the consultation and clause 2 (pdf format)
Summary: Transform is deeply concerned about the process by which this clause has been developed and implemented: • There was no formal external consultation whatsoever on this clause before the Bill was passed • The ACMD was not consulted on this clause before it was passed, to consider whether it was wise, justified or legal • The Regulatory Impact Assessment of this clause was desperately inadequate • Numerous submissions made to the Home Office by leading centres of expertise on drug policy and law were universally critical – all were ignored • Having initially been ignored, NGOs are now expected to provide consultation advice on a Bill that they had already universally rejected • Transform is aware of no single NGO or other drug policy advisory body that had called for such measures to be implemented – but widely mooted policy alternatives (including a new offence of ‘social supply') were not considered • Parliament and NGOs were expected to judge this clause without any indication of how it would operate in practice • The passing of the Bill in the wash up week meant it failed to receive proper parliamentary scrutiny in the Lords The result is a piece of legislation that is unwanted, unnecessary, unworkable, and likely to create increased costs to the criminal justice system and harms in the form of and miscarriages of justice. Transform will therefore not be commenting on the specifics of quantities associated with a presumption of guilt for intent to supply. We will be restricting our comments to a critique of the policy and the process by which such a counterproductive and ill thought out policy came into law. Transform believe that lessons have not be learnt from the fiasco around reform to section 8 of the Misuse of Drugs Act – another example of where consultation on an ill thought out piece of ‘tough on drugs' populism was belatedly called after the legislation was passed. We hope that this counterproductive clause will go the same way and never be implemented.
• There was no formal external consultation whatsoever on this clause before the Bill was passed The Drug Bill RIA mentions no consultation undertaken internally or externally on this clause (1). Transform is unclear where the idea or support for this clause come for, and with whom, if anyone, the clause was discussed before the Bill was drafted by the Home Office . This appears to be a clear breach of the cabinet office code of practice on consultation (2). • The ACMD was not consulted on this clause before it was passed, to consider whether it was wise, justified or legal Although presumably the ACMD will be asked to comment on threshold quantities (in relation to the criteria outlined in the consultation letter) Transform is not aware that they were consulted in the development or drafting of the original clause. Whilst Transform has reservations about the functioning of the committee (not least that its deliberations are not public) it would seem obvious given their advisory remit on such matters that such a policy development be referred to their substantial body of expertise for consideration, rather than asking for comment on details after such a significant shift had already become law. • The Regulatory Impact Assessment of this clause is desperately inadequate Just over two pages of consideration are given to this clause, a total of 707 words. Comparing it to the checklist for good practice in RIAs provided by the National Audit Office (3) or the Cabinet office (4) reveals just how hopelessly inadequate it is. • No detail is provided for the reasoning behind the clause • No details are given of any consultation process (presumably because there was none – see above) • Alternative policies are not considered (see below) • Costs, harms and concerns (including human rights issues) raised by NGOs before the final RIA was drafted are ignored • Arguments are stated as fact without any evidential support (notably that increased arrests of dealers will reduce drug supply – something that all available evidence, including Home Office research and No10 strategy unit analysis shows to be incorrect). It is, by any standards, a unacceptably poor piece of work to put in the public domain. • Numerous submissions made to the Home Office by leading centres of expertise on drug policy and law were universally critical – all were ignored We note that a series of briefings produced in the run up to the Drugs Bill 2005's parliamentary scrutiny were produced by a range of leading independent centres of expertise in the drugs and criminal justice field. We urge the Home Office in the strongest terms to revisit these briefings - which demonstrate a remarkable consensus in condemning this clause as both unnecessary and unworkable (links are provided below). These included: • Drugscope (representing over 900 member organisations in the drugs field) and Turning Point (the UK 's leading treatment agency) making a series of detailed criticisms of clause 2 (5): .
• Release, the leading centre of drug law expertise, produced a similarly detailed briefing making many of the same points:
• The Law Society also provided a further detailed critique concluding:
Transform submitted its own detailed briefing produced for the Government consideration and parliamentary scrutiny of the Drugs Bill (8) in early 2005, providing yet another detailed critique of clause 2. We refer you to this briefing (the relevant section is annexed below) along side those provided by our colleagues here by way of commentary on the clause itself and its multitude of problems. The Transform Drugs Bill briefing was circulated to policy makers in the Home Office , was cited in both Commons and Lords debates on the Bill and on more than 17 occasions during the Standing Committee sessions. • Having initially been ignored, NGOs are now expected to provide consultation advice on a Bill that they had already universally rejected Little wonder that there is barely concealed anger amongst many in the drugs field about the way the Drugs Act has been developed and implemented. For many It is an uncomfortable echo of the way in which the reforms to section 8 of Misuse of Drugs Act were barrelled through Parliament without any regard for the views of experts in the field.
Transform can only assume that the process of policy development was led by informal discussions with some Police (perhaps understandably annoyed that some alleged dealers had got away with a possession charge), or that it was simply a piece of pre election populist decision making devised because it sounded ‘tough on dealers'. More galling for those who have spent considerable energy in thinking about this issue is that the widely mooted policy alternative, the introduction a new offence of ‘social supply', suggested by Drugscope, Turning Point, the Police Foundation Inquiry report (1999) and (in a slightly different form) the Home Affairs Select Committee inquiry report (2002) was completely ignored and not included in the consideration of policy alternatives required by the RIA. It should also be pointed out that the Home Affairs Select Committee Inquiry report ‘The Government's Drug Policy: is it working?‘, specifically rejected the move toward a presumption of guilt for intent relating to fixed quantities (9). • Parliament and NGOs were expected to judge this clause without any indication of how it would operate in practice Many of the briefings submitted on this clause (see footnotes 5-8) note that it is difficult to comment on impact of the new law because the thresholds were not available. This is not the chicken and egg situation it may appear. It is clear that the functioning of the clause is dependent on the quantity tariffs established. None were provided with the original Bill, even in the form of the suggested quantities for this consultation, to allow a judgement to be made. This again presents a situation where key considerations on whether a policy is necessary, or even potentially illegal, are being made after it has passed into law (even if not yet commenced). For example, The Joint Parliamentary Committee on Human rights notes that: "We are unable to reach a definitive view on compatibility [of clause 2 with the ECHR] because the prescribed amount which triggers the applicability of the statutory assumption is not on the face of the Bill but will be contained in regulations to be made by the Secretary of State”
The Bill was barrelled through Parliament in the final days of the wash-up week shortly before Parliament was dissolved for the General Election. As many parlimentarians pointed out this meant that the Bill did not receive the scrutiny it deserved, and it was passed as a result of backroom horsetrading over which Bills would stand or fall. Many principled and pragmatic objections from both opposition and Government backbenchers in both houses were overruled and a deeply flawed Bill was passed with undue haste.
Annex: Commentary on Clause 2 of the Drugs Bill (now Drugs Act) from Transform's 2005 briefing. The full briefing, including a broader critique of the Bill, can be read here; http://www.tdpf.org.uk/TransformresponseDrugsBill2.pdf 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 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, reversing the burden of proof so that the onus is on the defendants to establish they are not dealers. • As with the proposed drug testing on arrest there are legal problems raised by this proposed reversal of the evidential burden. The Human Rights act 1998 (article 6) states clearly that: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. If enacted this clause would reverse the burden of proof, meaning that individuals are presumed guilty until they prove themselves innocent (see appendix 2). • The Home Office RIA claims that ‘drug dealers use the defence of personal possession or bulk buying when arrested/charged with drug supply offences' . Whilst this doubtless true in some situations, it is also the case, unacknowledged by the Home Office RIA, that these defences are sometimes used truthfully. Therefore, the result of implementing this legislation will be an increase in wrongful convictions of individuals guilty of nothing more than possession for personal use, yet convicted for intent to supply and facing a likely prison term for a crime they have not committed. • This would be a miscarriage of justice; a significant ‘cost' (not mentioned in the RIA) and, Transform believes, sufficient reason alone to reject this clause in its entirety. Such wrongful convictions will have precisely the undermining effect on public confidence in the CJS that the Home Office claims this measure is seeking to reduce. • The fact is that the Crown Prosecution Service makes informed judgements on whether to prosecute an individual for intent to supply based on a variety of evidence. This will include not only the quantity of the given drug, but also the presence of cash, weighing equipment (scales), bags for drug sales, witness and forensic evidence and so on. Judges, magistrates and juries can similarly use this evidence to make informed judgments. • This clause proposes to remove this element of informed judgement from the equation and make the prosecution and sentencing process completely arbitrary, based only on a set of numbers devised by the Home Office. In the RIA (on the subject of magic mushrooms ) the Home Office states that ‘sentencing is a matter for the courts' - a sentiment that clearly has not informed this clause. • Much of this debate is entirely theoretical. Legal experts have advised Transform that the ability of prosecutors to activate a presumption of guilt (for intent to supply) is severely limited by the wording and technical detail of the Bill. The Bill calls for the following to be inserted into the Misuse of Drugs Act: “If it is proved that the accused had an amount of a controlled drug in his possession which is not less than the prescribed amount, the court or jury must assume that he had the drug in his possession with the intent to supply it” However it also calls for the following text to be included immediately after: “Subsection (4A) above does not apply if evidence is adduced which is sufficient to raise an issue that the accused may not have had the drug in his possession with that intent.” • What this caveat means is that if evidence is adduced then the presumption of guilt (of intent to supply) will not be triggered. Defence lawyers will inevitably use this caveat (presumably included to try and make the Bill compliant with the Human Rights Act) to avoid the presumption of guilt by producing some such evidence - simply, for example, in the form of testimony from the defendant. The effect will be that this ‘tough' measure will in practice rarely, if ever, be deployed. • One of the benefits of this particular clause noted by the Home Office RIA is that increasing prosecutions of dealers will reduce the availability and use of drugs. There is no evidence offered to support this contention, whilst a great deal exists to contradict it. Research by the Home Office itself shows quite clearly that increased arrests of dealers do not have any measurable effect on availability or use (which continue to increase), a proposition supported in some detail by a recent unpublished report from the Number 10 Strategy Unit. The reality is that for every dealer arrested there is a queue of willing replacements all to eager to profit from the lucrative illegal markets created by prohibiting goods that are in huge demand. The true picture is one of systemic failure that, in contrast to the Home Office claims, serves to undermine confidence in the Criminal Justice System and undermine police morale. • The Joint Committee on Human Rights Report on the Bill notes that: "We are unable to reach a definitive view on compatibility [with the Human Rights Act] because the prescribed amount which triggers the applicability of the statutory assumption is not on the face of the Bill but will be contained in regulations to be made by the Secretary of State. Bearing in mind the seriousness of the offence of possession with intent to supply, it will be important that there is a sense of proportion in the amounts which are prescribed by regulation as triggering the statutory assumption"(10). 1.http://www.homeoffice.gov.uk/documents/ria-drugs-bill-1204?view=Binary (pages 16 -17) 2. http://www.cabinetoffice.gov.uk/regulation/docs/consultation/pdf/code.pdf 3. http://www.nao.org.uk/publications/nao_reports/01-02/0102329checklist.pdf 4. http://www.cabinetoffice.gov.uk/regulation/ria/ria_guidance/index.asp 5. http://www.drugscope.org.uk/wip/7/PDFS/drugsbrief2.pdf (pages 2-3) 6. http://www.release.org.uk/news/drugs_bill%20final.pdf (pages 4-5) 7. http://www.justice.org.uk/images/pdfs/drugsbillsrl.pdf (pages 4-5) 8. http://www.tdpf.org.uk/TransformresponseDrugsBill2.pdf (pages 8-9) 9. The Home Affairs Select Committee 2002 report on UK drug policy recommends specifically that: “We are not persuaded that an intent to supply should be presumed on the basis of amounts of drugs found; we therefore recommend that the offences of simple possession and possession with intent to supply should be retained without alteration (paragraph 77).” And “We recommend that a new offence is created of "supply for gain", which would be used to prosecute large scale commercial suppliers (paragraph 83).” 10.http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/47/4702.htm
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