Tide Effect

4. The UK Policy Vacuum

The current policy around cannabis in Britain is a messy patchwork of legislation intermittently enforced. It places political posturing above public health and tabloid values above humane ones.

Cannabis is classified as a Class B drug under the Misuse of Drugs Act 1971. Drugs are classified ‘according to their accepted dangers and harmfulness in the light of current knowledge’, with Class A regarded as the most harmful and Class C the least.1

Governments of whichever political hue use these classes, in theory at least, to help set out their overall drugs policy. Cannabis has always been Class B except for a five-year period between 2004 and 2009 when it was downgraded to Class C before being reclassified as Class B. This was an episode itself emblematic of politics taking and discarding scientific evidence as it saw fit: in other words, of making the facts fit the theory rather than vice versa. Jacqui Smith, who was Home Secretary during the reclassification process, has since admitted as much. ‘Knowing what I know now, I would resist the temptation to resort to the law to tackle the harm from cannabis,’ she said. ‘Education, treatment and information, if we can get the message through, are perhaps a lot more effective.’ 2

Responsibility for developing and enforcing drugs strategy lies primarily with the Home Office, which in itself is a statement of purpose: that this is a matter of public order rather than public health.

The current government strategy is based around three main pillars:

  • reducing demand, particularly among vulnerable youths and/or those involved in the criminal justice system.
  • restricting supply by tackling the organised crime gangs which supply drugs through importing them from abroad or growing/manufacturing them on British soil.
  • building recovery in communities through public health facilities and an attempt to understand and tackle the wider social circumstances which propel people to use drugs in the first place.

Even the most cursory knowledge of British politics is enough to assess that all three of those pillars are built on very shaky ground.

"law enforcement is always fighting an uphill battle in restricting supply"

Two million cannabis users alone shows that demand is widespread. The rise in hydroponic factories in the UK, plus well-established criminal routes from the continent (used to smuggle not only drugs but also people), means that law enforcement is always fighting an uphill battle in restricting supply. And the social deprivation wrought on thousands of poorer communities across the land is not something which can be fixed with a few headline-grabbing initiatives.

Criticism of failure across all three of these areas is both wide and deep: it spans all kinds of stakeholders and goes back a long way. More than half the British public believe that current policies are ineffective 3 – a figure which rises to three-quarters among MPs alone. 4

A Police Foundation report as far back as 2000 concluded that ‘such evidence as we have assembled about the current situation and the changes that have taken place in the last 30 years all point to the conclusion that the deterrent effect of the law has been very limited’ – a point reinforced six years later by the conclusions of the Science and Technology Select Committee: ‘we have found no solid evidence to support the existence of a deterrent effect, despite the fact that it appears to underpin the Government’s policy on classification.’

When a policy of deterrence is no longer seen as providing that deterrence, those in charge of that policy’s enforcement gradually decide that it’s not worth their time and effort to pursue it. This is particularly when their own resources are scarce. Durham Constabulary, for example, have stopped pursuing and prosecuting cannabis users and small-scale growers. Ron Hogg, Police and Crime Commissioner there, said: ‘I believe that vulnerable people should be supported to change their lifestyles and break their habits rather than face criminal prosecution, at great expense to themselves and to society.’ 5

 

Durham Cathedral

Nor is Durham alone in this approach: in Cambridgeshire, for example, charges are pursued in only 14% of incidents. But counties such as Hampshire, where 65% of those caught with cannabis end up with a charge or summons, continue to hold a line of serious enforcement seriously applied.

The problems with this system as it stands is twofold. First, it effectively makes the question of cannabis policy a lottery according to which county you happen to find yourself in. This is not the same as the case in the USA, where each state has its own legislature and where drug laws can vary widely from state to state. This is one national law selectively applied, which in itself makes a mockery of that very law.

Secondly, even the most laissez-faire constabulary when it comes to individual cannabis users continues to clamp down on the organised crime gangs which supply the drug. ‘The scant resources of the police and the courts are better used tackling the causes of the greatest harm – like the organised crime gangs that keep drugs on our streets and cause misery to thousands of people – rather than giving priority to arresting low-level users,’ said Hogg. 6

One can greatly sympathise with both Hogg’s instincts not to ruin individuals’ lives over something which harms only themselves and with his decision to prioritise finite resources on organised crime – the kind of real-world dilemma which all police commissioners face and which politicians and commentators alike are quick to dismiss.

"This de facto decriminalisation is the worst of both worlds"

But the endpoint of this approach is illogical to the point of absurdity. Either a substance is illegal or it is not (or, more precisely, it may be legal in certain restricted circumstances such as for carefully assessed medicinal purposes, but that is a side point here.) A situation where it is illegal to manufacture and supply something but not illegal to possess it is at best deeply flawed and at worst totally unworkable: the disconnect between the supply side and the demand side is too great. The demand continues to be met by organised crime: both law enforcement and health care remain in limbo.

This de facto decriminalisation is the worst of both worlds. The system as it stands, in general, works as follows. The first time you’re caught with a small amount of cannabis, you’re given an informal verbal warning. The second time, assuming it’s within 12 months of the first, you’re given a Penalty Notice for Disorder (PND) and £80 fine which must be paid within 21 days. Neither the warning nor the PND form part of a criminal record. Now the ante is upped. The third time is a caution following arrest, the fourth is a court charge. Both of these do count on your criminal record.

The problem is that even a warning, the most lenient and informal option, counts as a ‘recorded crime outcome’ – a crime that has been detected, investigated and resolved. So cannabis crimes are a good, easy, predictable way for officers to make their statistics look good.

Every year, 10-15% of all indictable offences brought before the courts are for drug possession. According to the latest figures available, there are 1,363 offenders in prison for cannabis-related offences in England and Wales. 7 Those 1,363 people are costing the taxpayer more than £50m a year, are exposed to other criminals while in jail, are more likely to be recidivist offenders once out, and will find it harder to get a job in future because they have a criminal record.

 

"Would there still be cannabis criminals if the industry was legalised and regulated along the lines of tobacco and alcohol"

The continued concentration of police efforts in poor areas helps perpetuate two forms of inequality. The first is that residents of these areas will continue to regard the police not as impartial upholders of law and order but as agents of an establishment which regards them as at best a nuisance and at worst a threat.

The second is that the kids drawn into the criminal justice system this way – and the criminal justice system is like a lobster pot or the Chelmsford one-way system: it’s very easy to get into and very hard to get out of – will continue to have far fewer opportunities for social mobility and life chances.

Would there still be cannabis criminals if the industry was legalised and regulated along the lines of tobacco and alcohol: that is, if it was well-regulated with licensed production and distribution? Yes, there would. But there are three main access points to such industries – production, distribution and possession – and only the middle one of these would afford any realistic opportunity for criminals. Possession would be legal, of course, and production (where most harm to the consumer’s health in terms of impurities and toxins can occur) would be economically unviable for the vast majority of criminals.

Take alcohol and tobacco. Yes, there is smuggling in both cases, but in the vast majority of cases the products being smuggled have been legally produced at source and the smugglers are trying to avoid paying tax, which accounts for most of the price (averaging around 80%) of both alcohol and cigarettes in the UK. ‘Duty on cigarettes and spirits is consistently increased well above inflation, but the production cost of the goods is low. This makes them a prime target for smuggling,’ said Roy Maugham, a tax partner at UHY Hacker Young. ‘A significant number of taxpayers are disinclined to pay the full duty on alcohol and, particularly, cigarettes – which has created a thriving black market. It’s the inevitable result of heaping a heavy tax load onto any product.’ 8

In 2014-15 HMRC and the Border Force between them seized 5.3m litres of beer, 189,669 litres of spirits and 1.49m litres of wine, almost all of it legally-produced. There is no meaningful large-scale network of illegal alcohol production in the UK for the simple reason that legal, regulated, cheap alcohol is widely available. Why go to the considerable expense and bother of making moonshine when you can just go down to the supermarket and pick up a brand of own-label vodka?

Cigarettes are a slightly different case. There are three main types of illicit cigarettes smuggled into the UK:

  • contraband (legally manufactured by major Western companies and paid at lower duty rates in their country of origin);
  • illicit whites (legally manufactured in developing economies, such as the UAE’s Jebel Ali free trade zone, to product standards lower than in the West but still acceptable to most Western consumers);
  • and counterfeit (illegally made and passed off as genuine).

Of these three, the second category, illicit whites, accounts for the majority of HMRC seizures (more than 6bn cigarettes between 2011 and 2015). 9 ‘The illicit whites are now the dominant point of threat. They have none of the quality problems of counterfeit cigarettes,’ said Euan Stewart, deputy director of criminal investigations at British customs. 10 As with alcohol, there is little mileage for most criminals to go to the bother of full-scale counterfeiting when there are so many easier ways to market.

The crucial aspect to this is that the very issue which causes the smuggling – the tax take – is within the government’s purview. It can intervene on price if need be, all the while mindful of the various stakeholders it must keep happy: the Treasury bean-counters, the shareholders of tobacco companies which themselves pay corporation tax and donate to political parties, the NHS which would prefer that fewer people smoked in the first place, and so on. The government has no such luxury in a business like cannabis while it remains illegal. It can still enforce the law on the smugglers, but it can do next to nothing about the conditions which drive them to smuggle in the first place.

These black markets for otherwise legal products give us a good idea of what we could expect in a regulated cannabis market post-legalisation. Clearly there would be similar issues with smuggling and customs evasion, but these would in turn represent a great leap forward from the current state of the cannabis market.

Make it a health matter

All the problems of this unregulated market come from a single source: the decision to treat cannabis purely as a criminal matter rather than principally a health one. Then Deputy Prime Minister Nick Clegg said in 2014 that ‘the first step is to recognise that drug use is primarily a health problem. Addicts need help, not locking up. It is nonsense to waste scarce resources on prison cells for cannabis users… (nobody should) go to prison when their only offence is possession of drugs for personal use. Instead these people should receive non-custodial sentences and addicts should get the treatment they need to stop using drugs. These reforms will ensure that drug users get the help they need and that taxpayers don’t foot the bill for a system that doesn’t work.’

Both the Royal Society for Public Health (RSPH) and the Faculty of Public Health (FPH) agree. In their 2016 report, called Taking A New Line on Drugs, transferring drugs policy from the Home Office to the Department of Health is advocated:

‘The time has come for a new approach, where we recognise that drug use is a health issue, not a criminal justice issue and that those who misuse drugs are in need of treatment and support, not criminals in need of punishment,’ says RSPH chief executive Shirley Cramer. ‘For too long, UK and global drugs strategies have pursued reductions in drug use as an end in itself, failing to recognise that harsh criminal sanctions have pushed vulnerable people in need of treatment to the margins of society, driving up harm to health and wellbeing.’ 11

Transferring principal responsibility from the Home Office to the Department of Health 12 would also take away one of the arguments used by opponents of reform: that those who want cannabis legalised only do so because they erroneously believe it harmless. This is, of course, bunkum. It is precisely because cannabis can cause harm that it needs to have appropriate regulations and controls applied. Of course cannabis isn’t completely safe. No drug is completely safe; no human activity, for that matter, is completely safe. But making it illegal doesn’t make it safer. The Department of Health already provides information on the dangers caused not just by alcohol and tobacco but by sugar too. They are best placed to put cannabis in its context.

The time for a root-and-branch reform of UK cannabis policy is long overdue. Current policy emanates from the wrong government department and is aimed at the wrong kind of people. It is misconceived from start to finish. In the next chapter, we explore some of the policy innovations taking place in several other Western countries which we hope will pave the way for the UK to follow suit in one form or another.