paper prepared for DrugScope's submission to the Home Affairs Select
Nicholas Dorn, DrugScope.
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
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.
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.
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.
Conventions and Drug Use
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:
'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)
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
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'.
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
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).
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.
is the Key
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?
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:
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.
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.
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
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.
political as well as legal question
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.
a UK policy to decriminalise possession require changes in International
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.
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
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.
trafficking and organised crime: consequences of decriminalisation
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?
There seem to be three theoretical options:
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.
It is not an option likely to attract UK support.
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.
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.
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.
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
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.
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