Monday, September 22, 2008

Why George Michael shouldn't cop a plea for drugs

Yesterday I took a call from Gemma Wheatley at the Daily Star to comment on the fact that George Michael had been treated ‘too leniently’, after being cautioned for drug possession. I didn’t ask where Gemma had got hold of Transform, but she obviously didn’t know what we do. After informing her that I couldn’t say anything against Michael’s caution, I said I’d call her back.

The fact that he had been arrested in a toilet reminded me of the famous court case when three notable men were arrested for consensual sex offences, that in no small measure, led to the Wolfenden Committee being set up, and ultimately the repeal of the law banning homosexual sex.

The quote I gave them was: “Forty years ago George Michael could have been arrested for having consensual gay sex in private. One day when drugs are legally controlled and regulated, he will no longer be criminalised for possession of drugs.”

Suffice to say they didn’t use it, preferring instead retired judge Keith Matthewman QC: “I cannot understand how or why someone in his position and with his previous record could be let off with a caution.”

The link between the decriminalisation of gay sex and the legalisation and regulation of drugs is worthy of comparison.

To quote from “FREE THE BUGGERS”–Britain & the Wolfenden Report

"In 1953 John Barrington Douglas-Scott-Montagu, known as Lord Montagu, 27, third Baron Montagu of Beaulieu, an old Etonian and ex-Grenadier Guards officer best known for his vintage car museum at his historic Hampshire home, Palace House at Beaulieu, was arrested for “gross indecency” with two teenage Boy Scouts. In a sensational week-long court case, Montagu was tried together with his cousin, Michael Pitt-Rivers, and Peter Wildeblood, the 31-year-old diplomatic correspondent of the Daily Mail. All three defendants were convicted. Pitt-Rivers and Wildeblood were sentenced to 18 months in prison, and Lord Montagu was given a year.

As the Great Purge continued, the Conservative Party government appointed a Committee on Homosexual Offences and Prostitution. Named to head it was Sir John Wolfenden, a private school headmaster and veteran of government committees on education and youth.”

This report eventually led to the Sexual Offences Act 1967 that began to decriminalise gay sex.
However, again to quote from ‘Free the Buggers’:

“Crucially, as The Guardian went on to point out, “While sex may have been legal, most of the things that might lead to it were still classified as ‘procuring’ and ’soliciting.’ ‘It remained unlawful for two consenting adult men to chat up each other in any non-private location,’ Tatchell says. ‘It was illegal for two men even to exchange phone numbers in a public place or to attempt to contact each other with a view to having sex.’ Thus the 1967 law established the risible anomaly that to arrange to do something legal was itself illegal.”
The situation remained tenuous for more than two decades. Tatchell’s research shows that in England and Wales in 1989, consensual homosexual relations between men over the age of 16 resulted in 3,500 prosecutions, 2,700 convictions, and 380 cautions. Between 40 and 50 men served time in prison.

“Most alarmingly,” Tatchell wrote, “1,503 men were convicted of the gay consensual offence of ‘gross indecency’ in 1989, compared with 887 in 1955. In other words, there were over one and a half times more guilty verdicts in 1989 than in the mid-1950s when male homosexuality was still totally illegal and Britain was gripped by a McCarthyite-style anti-gay witch-hunt.”

Another decade and a half would pass before the reforms of Tony Blair’s government would allow British gays to feel reasonably free from persecution.

There are clear links between the criminalisation, stigmatisation and discrimination of gay men and producers, suppliers and, particularly, users of drugs defined as illegal. It is no surprise that Peter Tatchell is a supporter of legalisation and regulation of drugs.

The point I’d like to make here is that it took public conviction, in both senses of the word, to bring the issue to a head. Had the numerous men who were charged been given the option of a caution and accepted it, there would have been no case and no defendents prepared to publicly defend their sexuality.

Every time a drug user accepts a caution, they accept their guilt and effectively collude with a discriminatory, unjust and inhumane law. The police can enforce the law with total impunity to the extent that they know most users will accept a caution. Before the change in UK law on homosexual sex, gay men were guilty in the eyes of the law. Whilst some drugs are criminalised, the same will be true of illegal drug users, suppliers and producers. For those with the courage of their convictions, hasn't the time come to throw caution to the wind and defend ourselves against bad law?


Anonymous said...

The Parallel drawn here is also very useful when applied to the argument "legalisation and regulation will never happen".

When I talk to people and come up against such a response (be it from someone pro or anti drug use) I find it useful to point out that forty years ago, it was also inconceivable that two men who were in love could have their relationship recognised by the state in the form of a civil partnership.

We are already seeing an increase in the number of people (politicians especially) "coming out" about prior drug use, each time this happens there is less and less guilt associated with it.
Perhaps one day, functional drug users can hold their heads high.
(the annual Pride march might be a hard one to organise though)

Anonymous said...

For those with the courage of their convictions, hasn't the time come to throw caution to the wind and defend ourselves against bad law?

Hmmm, yeah, good idea.

Trouble is several people have tried this approach over the past 10 years or so and suffered greatly as a result.

Remember, as things are now even medical supply of cannabis is punishable, medical necessity is no excuse in this country, unlike Holland.

The big difference with the sexual revolution is basically - apart from a short setback under the last Tory government - politicians didn't oppose it as some kind of mission from god as they have done with drug law reform.

We've had too many martyrs over the past few years, we don't need any more.

Anymore good ideas?

Steve Rolles said...

thats a bit defeatist Derek - Danny is only throwing an idea out their for discussion.

You are right, of course, that there have been a number of people who have defended themselves on drugs charges, on principled grounds, and ended up with hefty sentences, with little seemingly being achieved. I would suggest this was because they went about it the wrong way, undertook it reactively, and took the wrong legal advice - usually defending themselves without the relevant knowledge and support. If this was better thought out and planned with the right know how, it is quite possible that legal cases could force change in ways that politicians are are too cowardly to contemplate at the moment, even the ones convinced of the rightness of the cause. The courts have often been the driver of substantive legal reform, as Danny rightly points out. There are examples in drug law reform as well, such as the decriminalisation of personal use in Italy. Bigger challenges obviously lie ahead in the UK - but its not useful to write them off.

We aren't going to change anything in the short term by winning over the old-school tories likely to be in charge for the next 5 or 6 years, or, lets be honest, with smokey bears picnics.

Anonymous said...

Rubbish! George Michael has committed an offence, the police under the lack of authority which characterises the Met chief of police, have failed to act.

Sunshine Band said...

I like the idea of not accepting cautions - but as has been said, be sure you use an argument that hits the target. I am working on a defence alleging maladministration of the misuse of drugs act giving rise to a discrimination under Art 14 of the HRA of drug property Art 1 Protocol 1 and within the ambit of Arts 8 and 9.

Sunshine Band said...

That should read Protocol 1 article 1

By the way anonymous; these offences are in themselves wrongful laws under the express purposes of the Misuse of Drugs Act 1971. Whilst crack is a drug that presumably warrants controls over its property rights, nevertheless the law is in such shambles concerning its lack of rational evidence for scheduling that legally the whole administration of the act is in dire need of review.

Anonymous said...

Derek, are you referring to specific cases where individuals have refused a caution and suffered greatly. If so, can you reference them.
I'm not saying that there aren't any, just that I don't know of them.

Anonymous said...

I had the profound privilege of representing myself in court on production charges in January 2005. I drew the homosexual analogy re discrimination only to be met with 'homosexuality is not a choice like drug use'. I had yet to fully understand what the ECHR had said in paragraph 41 of the Dudgeon case! I have learned from my mistake! I now understand the nuances of a properly argued Article 14 'discrimination' case within the ambit of other Convention rights, of which Sunshine Band speaks! I am very pleased that Transform appear to have embraced this aspect of their remit! Policy must be implemented with the four corners of the law! The SSHD and the ACMD must understand their decision making powers and the laws which regulate them, i.e. HRA 1998, common law, MDA 1971 s1 & 31, inter alia, and they must give effect to them! Fiat lux! Cx