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UK Drug Report 2000
Evidence to Home Affairs Select Committee on Drug Policy November 01

·Cannabis & the gateway hypothesis

·Cannabis & health

·Cannabis legislative options

·Drugs and Crime, what are the links?

·International and domestic law

·Members Survey

International Law and National Decision Making:
Possession and Supply

Annex E

A review paper prepared for DrugScope's submission to the Home Affairs Select Committee.

Dr Nicholas Dorn, DrugScope.

Headlines

  • The international drug conventions require the UK and other signatory states to establish as criminal offences acts of drug possession 'subject to its constitutional principles and basic concepts of law'.

  • The historic development of an international requirement for criminalisation of drug possession (not use) has been hesitant and is accompanied by qualifications and 'get out' clauses. Even today, some signatories prohibit (make illegal) drug possession but either make it punishable civilly (more properly expressed as 'administrative measures') or not at all.

  • The following evidence, based on and extending the comparative legal study, European Drug Laws: the room for manoeuvre(1), suggests that the legal concept that is most relevant in considering this issue in the UK is proportionality. Parliament could take the view that, for some acts of possession for personal use that are currently criminal offences, the harms averted by criminalisation do not outweigh the impacts of criminalisation on individuals proceeded against. Parliament could equally decide to leave this decision to the law enforcement sector as at present. Either course of action would be compliant with the international conventions.

  • Consideration of the legal status of possession for personal use cannot be taken in isolation. For proportionality of proposals to be assessed in the round, implications of decriminalisation of possession in the context of drug supply also have to be addressed.

International Conventions and Drug Use

1. Drug use per se is not a criminal offence in the UK or in many other European countries. Indeed it was never the primary purpose of the international drug conventions to criminalise drug use per se, only to prohibit it.(2) As Alison Jamieson has observed, in the systems of international control that emerged in the beginning of the twentieth century, with the Shanghai Commission in 1909, the Hague Opium Convention of 1912 and Single Convention of 1961:

2. 'Whilst the prohibition of drug use was thus an original component of international drug control, during the first decade of the century it was a marginal issue, and referred more to ban on consumption by minors and the closure of "dens of vice". [...] The prevailing feeling was that anything concerning the freedom of the individual or the exercise of police powers were matters for individual states, and that the primary objectives of the international agreements were to ensure supplies of narcotic drugs for medicinal and scientific purposes and to prevent illicit diversion. [...] The 1972 Protocol to the 1961 Convention strengthened controls over production and traffic and emphasised treatment and rehabilitation as alternatives to punishment for offenders.' (Jamieson, 2001, page 220)

3. In the 1971 Convention, there is widening of substances for control to include many drugs that are entirely synthetic - amphetamine for example. The 1988 Convention then does two things, focussing respectively on suppliers and on drug users. On supply, it strengthens international cooperation against drug traffickers through extradition, mutual legal assistance, transfer of criminal proceedings and the criminalisation of money laundering and of diversion of precursor chemicals.

Drug Possession

4. In the second dimension, control of drug use, the 1998 Convention does nothing to change the situation: drug use has to be limited, prohibited and/or made illegal (the wording varies) but it need not be criminalised. However, the 1988 Convention does require that for drug possession, each signatory state shall, 'subject to its constitutional principles and basic concepts of law [...] establish a criminal offence'.

5. So, possession for personal use has to be made a criminal offence - as long as that is compatible with states' constitution and legal order. What this means for the UK will be addressed in a moment. However it should be noted that the convention requires the establishment of a criminal offence rather than any particular pattern of enforcement - a fact that finds national reflections in various ways, for example in warnings and cautioning in the UK, and through judicial, prosecutorial and/or police policies, guidance notes or practices in most other European states.

The UK Position

6. On supply, the UK has been to the fore in the timing and intensity of responses against drug trafficking and related offences (and is amongst those EU member states in 2001 pressing for greater convergence of penalties for trafficking).

7. On the user, the UK established as criminal offences the possession of drugs including heroin, cocaine, amphetamine and cannabis: use is not criminalised, possession is. Unlike some other European countries, the UK has not taken advantage of the 'get-out clause' of the 1988 Convention, 'subject to [the state's] constitutional principles and basic concepts of law'. Indeed, so far there seems to have been little debate on this point, although few would nowadays take the archaic position that the UK has no constitutional principles or basic concepts of law.

Proportionality is the Key

8. The question arises - could the UK rely upon such principles and concepts to justify repeal of those sections of the Misuse of Drugs Act that criminalise possession for personal use?

9. There are three possible constitutional and legal tests of whether criminalisation of drug possession meets standards of what is acceptable in any properly developed legal order. These tests are: (1) legal certainty (are the sanctionable acts clearly defined?); (2) procedural rights (including fair trail and access to an independent appeal)(3) and (3) proportionality (is the impact on individuals justified by achievement of wider social objectives?). Briefly, we suggest that:

  • Although English case law on drug possession is very complex, in general it seems that drug possession can be clearly enough defined for the purpose of legal certainty (which may not be the case in a few other legal systems, eg that of France). There are therefore no grounds for challenge on the basis of legal certainty.

  • In general, procedural rights in relation to drug possession offences seem reasonably well established in the UK, buttressed by the recent incorporation of the European Convention on Human Rights into UK law. There are therefore no grounds for challenge on the basis of procedural rights either.

  • If there is a doubt, it is around whether criminalisation of drug possession is always proportional to the harms thereby averted. Were it to review all the various forms of evidence having a bearing on proportionality, Parliament could take the view that for some acts of possession that are currently criminal offences, on balance the harms averted by criminalisation did not outweigh the impacts of criminalisation on individuals proceeded against. Equally, however, Parliament might be content to retain the criminal offence and leave it the discretion of the law enforcement sector, as at present.

10. Importantly the question of proportionality does leave the possibility of challenge to current laws open to those who argue that sections of the Misuse of Drugs Act should be repealed as they contradict the UK's legal principle of proportionality.

A political as well as legal question

11. Overall formal tests of what is acceptable in any properly developed constitutional and legal order do not seem decisive as far as criminalisation of drug possession is defined. So the question - still usefully defined in terms of proportionality - is returned from the international legal sphere to the domestic political sphere.

Would a UK policy to decriminalise possession require changes in International Law?

12. The answer is no. Due to the aforesaid constitutional qualification, in effect the assessment of the pros and cons of criminalisation/ decriminalisation of possession (for personal use) is left to national constitutional arrangements and the specifics of national legal systems (just as is the question of enforcement of law in practice).(4).Where international law is open to national interpretation, which is certainly the case here, national policy decisions that are well reasoned are relatively invulnerable.

13. What might be required is clear articulation of those aspects of UK 'constitutional principles and basic concepts of law' which, as a signatory to the 1998 Convention, the UK would rely upon in decriminalising possession.

14. Elsewhere, DrugScope in its evidence to the Select Committee sets out some pointers, as far drug use is concerned (focussing on proportionality vis-a-vis the public goods of health, acquisitive crime, the economy and costs to the Exchequer). There are however possible questions of the impacts of decriminalisation upon international and domestic drug trafficking and other forms of serious and organised crime and hence upon public security.

Drug trafficking and organised crime: consequences of decriminalisation of possession?

15. Any consideration of the proportionality of controls at the level of the user needs to take on board the possible impacts of policy at other levels, notably in relation to organised crime. Hence a particular and quite difficult question arises: with decriminalisation where would users get the drugs, and what would be implications for drug trafficking and organised crime?

16. There seem to be three theoretical options:

17. 1) Production and trafficking to be legalised, there could then be a commercial or state-run trade. At first glance the possible consequences at the level of drug supply appear favourable ie. traffickers exit in favour of legal supply. On consideration, however, it seems likley that drugs like most other commodities would be subject to Value Added Tax, and possibly to duty (we imagine that purveyors of alcohol and tobacco would be keen to see this, leaving aside the Exchequer). Thus to some extent incentives to smuggling would remain and we cannot say that legalisation of the trade would take drugs totally away from organised crime. Furthermore, legalisation of trafficking would be absolutely at odds with the international conventions and would be out of kilter with wider commitments to international cooperation on organised crime, money laundering, etc. It would require a state;


a) to propose to other signatories quite radical changes not only to the international drug conventions but also to many other international agreements which touch upon drug trafficking and
b) to be successful in arguing the case for these changes.

18. It is not an option likely to attract UK support.

19. 2) 'large scale' trafficking would remain criminalised, small-scale production or cultivation for personal use (and possibly for non-monetary supply to friends) would be decriminalised. Focusing on cannabis cultivation for personal use, decriminalisation would attract criticism from the INCB. Nevertheless it is a position already arrived at by a small number of countries (e.g. Italy, Spain and the Netherlands). This approach would reduce (rather than remove) 'big' trafficking. In principle, only some drugs can be home produced or home cultivated (cannabis, mushrooms etc) and, even in relation to those drugs, most or many users would not be in a position to avoid recourse to the illicit market. A consequential problem, experienced by the Netherlands from the 1980s onwards, would be a degree of uncertainty and possibly something of an enforcement vacuum in sections of the market between the user and remaining 'big' trafficking. According to one view, such a vacuum provided the conditions in which small time criminals could mature into big time criminals, capitalising through drugs, and then being able to stay in that sector and/or move on to other sectors of organised crime, corruption etc (ref Fijnaut). Such an enforcement vacuum needs to be avoided if decriminalisation of possession is not to have unacceptable consequences for serious and organised crime. Considering proportionality, legislators could see the prospect of such consequences as an unacceptable risk. This, together with the requirement for legal certainty (see above), would imply a need for very clear legal delineation of the acceptable (or at least decriminalised) limits of 'self supply'. This would have to be discussed and defined as part of the task of establishing the proportionality of any policy proposals on how, under decriminalisation of possession, the person would get their drugs.

20. 3) Continued criminalisation of all acts - production, cultivation, preparation, sharing - that are necessary precursors to possession for personal use. This would mean that, for every person possessing a drug, there would remain one or more persons who commit a trafficking offence (the possessor who cultivates or produces or imports the drug or, alternatively, those who supply it). This would avoid some of the problems stated above but it produces the contradiction that a decriminalised act necessitates other acts that are criminal. From the point of view of proportionality, this might be an acceptable balance and, in practice, one could envisage the possibility that acts of self-supply, whilst remaining crimes, could come to be responded to by warnings or cautions or at the most small fines.

21. What these points illustrate is that consideration of the legal status of possession of drugs for personal use cannot be taken in isolation from questions of supply. For proportionality of proposals to be fully assessed, the implications for supply have to be addressed. This may make the options to be appraised more numerous and more complex but is inescapable if serious consideration is to be given.

1 European Drug Laws: the room for manoeuvre, edited by Nicholas Dorn and Alison Jamieson, with contributions by an international legal research by an international team, Yann Bisiou (France), Tom Blom (the Netherlands), Lorenz Böllinger (Germany), Maria Luisa Cesoni (Italy), José Luis de la Cuesta and Isidoro Blanco (Spain), and Josef Zila (Sweden), published in London by DrugScope 2001.
2 Cf European Drug Laws.
3 For some commentators another principle, that of privacy and respect for family life as defined in ECHR, has potential for drug possession. However, as dealt with generally in the jurisprudence of the Strasbourg court, the right to privacy is not absolute and impacts on others still have to be weighed in the balance - as must be the right of states to prohibit and indeed criminalise acts within the usual framework of proportionality, legal certainly, etc. Thus the fact that an act might take place in private (or be a part of one family life and/or religion) may have to be taken into account but will generally not be a decisive factor from the point of view of ECHR. (ref)
4 The historical record shows that national decisions not to criminalise - as undertaken in diverse different ways in some European countries (in Italy by legislation following a referendum, in Spain by judicial interpretation, in the Netherlands by prosecution guidelines - may be criticised by the International Narcotics Control Board. However, the INCB is aware of the constitutional/legal limitation in the Conventions; the regulatory powers given to it are weak; and not being a judicial body it lacks the capacity to adjudicate, being able only to express an opinion. See European Drug Laws: the room for manoeuvre, entered into evidence for the Select Committee by DrugScope.

 
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