Does ANYONE know about clause 2 of the Drugs Act being axed?

The New Statesman's Human Rights Q&A column by their legal expert Sadakat Kadri (a barrister from Doughty Chambers) comments this week on a question put to him about cannabis law enforcement:

"Every now and then, I start to panic that the police are about to smash my door down. It’s weird, since they never have, but if they did, hypothetically, and happened to find some cannabis, what would it mean? The drug laws always seem to be changing. It’s doing my head in."

Kadri's response is sensible stuff, but unfortunately he has missed a recent update on Clause 2 (concerning possession/intent to supply thresholds) of the recent Drugs Act 2005, leading to a mistake in his answer. He states that:

"The Drugs Act 2005 stipulates that if someone is caught with more than a certain amount of cannabis, juries must find him or her guilty of intending to supply it - a crime punishable by 14 years imprisonment. The threshold remains undecided, but John Reid is reportedly thinking of setting it at five grams. Clearer heads may yet prevail, but a fifth of an ounce will otherwise become conclusive proof of dealing. Your fears, though somewhat delusionary, therefore have a basis in reality, and it would be prudent to minimise the weight of cannabis in your possession at any given time."

Whilst the advice about minimising the amount you are in possession of makes sense, this has always been the case and isn’t affected by the Drugs Act 2005 since the situation regarding the thresholds (Clause 2 of the Act) has actually changed again recently when the clause was quietly shelved back on the 13^th of October.

The Drugs Act 2005 does contain the thresholds clause, but as Khalid points out, the quantities that would move a possession offence to an intent to supply offence, controversially, weren’t specified at the time of its passing into law). There was an external consultation convened on these thresholds in March 2006, nearly a year AFTER the law was passed. In response to the consultation pretty much everyone asked said that the idea of thresholds was stupid in theory, and unenforceable in practice.

To anyone cunning enough to have scrutinised the Drugs Bill 2005 BEFORE it became law this was no surprise. Even though there was – outrageously - no official consultation on the clause before it became law, many experts had none the less advised that it was a very bad idea. Among those ignored were:

Drugscope (representing over 900 member organisations in the drugs field) and Turning Point (the UK 's leading treatment agency):

“We oppose Clause 2, Proof of intention to supply a controlled drug, and call for it to be removed.”

“In our view this is an unnecessary complication of the law and takes away court discretion.”

Release, the UK’s leading drug law advisory service, produced a similarly detailed briefing making many of the same points:

“We are fundamentally opposed to this provision which we consider to be unnecessary and unworkable”

The Law Society also provided a further detailed critique concluding:

“The presumption will therefore have little legitimate effect, but may allow miscarriages of justice to occur”

Transform also submitted its own detailed briefing produced for the Government consideration and parliamentary scrutiny of the Drugs Bill in early 2005, providing yet another detailed critique of clause 2.

Anyway, the consultation paper has now been published, and it’s a pretty good document as it goes, albeit arriving the wrong side of the law being enacted. The upshot of its analysis, lurking at the end of the report is a short statement to the effect that the clause is not being commenced because everyone said it was daft. So the thresholds will not be implemented after all.

The Government’s non-commencement this clause was met by almost total media silence, the only coverage I came across was a brief mention in the Guardian on the day it was published. This silence was largely due to some rather clever spin on the Government’s part (blogged on briefly here), which managed to distract attention away from the issue with an announcement about Methamphetamine being reclassified as Class A. So effective were the Governments efforts for this story to not be reported (because it makes them look like the policy was ill thought out and passed with undue haste – which it was) that not even the New Statesman’s ‘legal expert’ had heard about it, and if a top lawyer didn’t know what the law was, what hope is there for anyone else?

This media silence was in striking contrast to the huge kerfuffle that broke out when the proposed thresholds were initially announced, with tabloid headlines screaming about it being legal to carry 2000 spliffs worth of cannabis, ten wraps of cocaine, and so on.

There’s various lessons to be learnt from this sorry saga:

1. That consultations on law changes are best undertaken BEFORE the law changes take place (You’ll excuse the gratuitous use of capitals again, but what seems so obvious to most, apparently isn’t so obvious in the Home Office). For the record Transform’s briefing on the flawed process by which this clause came to be enacted is here . Lessons have clearly not been learnt from the almost identical farrago with reforms to section 8 of the Misuse of Drugs Act a couple of years back.
   
   
2. Policy and Law changes should not only be consulted on properly (as per the Government’s own guidelines on such changes), but they should also be subject to a proper Regulatory Impact Assessment (as per the Government’s own RIA guidelines), which this clause also mysteriously managed to avoid. Moreover, policy and law changes should pass into the law following proper Parliamentary scrutiny and debate, not as the result of party horse trading on Bills in the ‘wash-up week’ before a General Election, as was the case here.
   
   
3. That the Government can’t be trusted to bring peoples attention to changes in policy that might put them in a bad light, but can be relied upon to trumpet ill-thought out knee-jerk policy changes on drugs if the tabloids are likely to report it as being ‘tough on drugs’ (note: it doesn’t matter if the law change actually ever occurs as long as the headlines are secured – see also: random drug testing and sniffer dogs in schools).
   
   
4. That the media can’t be trusted to check through long nerdy Government documents and report on complex policy issues in an intelligent way, (even following up on stuff they have already run as headline news), especially when there are much sexier stories about scary sounding drugs like methamphetamine .
   
   
5. And finally, given all of the above, it is down to you folks in the drugs field, boring enough to have read this far, to hold the Government and media to account when they are completely incompetent, or otherwise fail in their responsibilities, which is unfortunately quite often.