Simple possession of Class A drugs have been effectively decriminalised in Scotland. 

Here’s what’s happened

Yesterday The Lord advocate, Dorothy Bain, presented a statement to the Scottish Parliament, announcing that those found in possession of class A drugs can now be diverted away from prosecution, offering police with discretion to issue a warning instead of referral to prosecution. 

This change has taken place in an attempt to get to grips with the drug death crisis in Scotland, which has the highest level of drug related deaths in Europe; having already lost the lives of 722 people to preventable drug deaths in the first half of this year. 

This summer the Scottish Government made a commitment to address the level of drug related death and harm in the country, and backed a review of the guidance on recorded police warnings, requesting a statement on the principles and practicalities of diversion. 

What is a recorded police warning?

In Scotland the recorded police warning scheme is the only exception where police are not required to report a case to the prosecutor. Instead of making a referral to prosecution, officers are able to issue recorded police warnings for a variety of low level offences, such as the possession of class B and C drugs. This diversion scheme allows officers to use their discretion, and respond to low level offending with speed, effectiveness and proportionality. 

The Lord advocate, Dorothy Bain, has the independent authority to issue guidance on what offences should be diverted away from prosecution. Having taken into consideration the findings of the review, she made the decision to extend these discretionary powers to the possession of Class A drugs.

The Lord Advocate makes four things clear about this statement

  • Only simple possession offences can be issued with a recorded police warning
  • Diversion through the recorded police warning scheme is not the same as decriminalisation. 
  • Issuing a recorded police warning is at the discretion of the officer, it is not mandatory, nor is it mandatory to accept the warning. 
  • Regardless of whether an officer issues a warning or makes a referral to prosecution,  they are still able to refer vulnerable people to support services. 

Principles and practicalities of diversion

In line with the Scottish government’s encouragement, the Lord Advocate also outlined the principles and practicalities of diversion in her statement. 

There is no set definition for diversion, and the practical implementation of diversion schemes varies depending on the jurisdiction. Ultimately diversion should act as an alternative to prosecution, and implies a process where individuals are referred to other agencies outside of the criminal justice system to address the underlying causes of their offending; for example drug dependency. 

In Scotland, diversion from prosecution isn’t a new system. Prosecutors already have a variety of out of court disposals available, and diversion is one of them. Since 2019 the guidance from the then Lord Advocate has been, diversion should be considered for all individuals with an identified need that is contributing to their offending behaviours. Prosecutors then have to decide whether diversion is the most appropriate and proportional option; a decision which is rooted both in the individual needs of the case they are considering, and wider public interests.

There has been a much welcomed shift away from prosecuting possession offences in Scotland. Since this guidance was issued in 2019 there has been a significant increase in the number of single-charge possession offences diverted from prosecution, from 57 in 2017 to 1000 in 2020. Moreover, 2 in 3 drug possession cases are resolved with an alternative to prosecution, for example fines. The extension of the recorded police warning to the possession of class A drugs will greatly benefit people who use drugs, by reducing associate harms of criminalisation, whilst also relieving pressure from the criminal justice system.

The Lord Advocate has issued this guidance acknowledging that there is ‘no one-size-fits-all response’ to drug possession and dependency; and powers given to the police, prosecutors and courts should be reflective of this. 

What does this mean for wider drug policy in the UK?

 

This incredibly progressive statement issued by the Lord Advocate undoubtedly opens up discussions around the possibility, and plausibility, of this level of reform taking place in other parts of the UK.

The British Government remains committed to the same prohibitionist drug strategy they have been implementing for 50 years. However,  it is encouraging that the leader of the opposition Keir Starmer appears to be in favour of the de facto decriminalisation which has taken place in Scotland, stating that it’s ‘probably the right thing to do’.

It is clear that this momentous decision from the Lord Advocate could place pressure on the UK to consider alternatives to criminalisation for drug possession offences. Moreover, the decision could influence other countries within the UK.

This piece was written by Operations Officer Ella Walsh. 

Lead image credit: User: Colin / Wikipedia Commons

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