The draft Guidelines were announced by Andy Hayman, deputy assistant commissioner with the Metropolitan police and chairman of Acpo's drugs sub-committee. They were widely reported in the press, but the full implications have yet to be considered.
The key proposals in the ACPO guidance are as follows:
- when a person is found to be in possession of cannabis for a first time in a year, they may have their cannabis confiscated and be given a "formal warning."
- if the person is found in possession of cannabis a second time in the same year, they may again have their cannabis confiscated and be given a second "formal warning."
- A third offence within the same year will not be treated the same way. Ignoring previous warning will be considered an "aggravating" factor and the person will face arrest and could end up facing a range of penalties and a criminal record.
- Other "aggravating" factors may also result in arrest. These include:
- possession of cannabis by someone under the age of 18
- refusal to hand over cannabis to the police
- when people are found in possession of large quanities of cannabis, this may also result in arrest. (According to Sky News, the guidelines will say that quantities of up to three grammes will be considered to be for personal use. )
- other "aggravated" offences may include possession/use near schools, blowing smoke in a police officer's face and probably other, as yet unspecified actions.
It is important to stress that the ACPO guidance is, currently only DRAFT guidance and will be going out for consultation before it becomes any more than a draft.
As well as this process of consultation, several pieces of legislation will also need to be passed by Parliament before the changes can come into effect.
Until the full text of the draft guidance is made availble, it is very difficult to assess the full facts.Unfortunately the ACPO website is not up-to-date and contains no mention of the draft guidance.
Based on what we do know, the following key areas of concern have been identified:
1) Record Keeping and the Courts
In order to make this system work, police forces will have to maintain centralised records of everyone receiving a "formal warning" for cannabis possession. Without this, it will not be possible to determine whether someone has had previous warnings for cannabis possession that year.
In turn this will require that the Police can verify a person's identity before giving them a formal warning. This process will require an amount of Police time to administer the system. It also has civil liberty implications. At the point where the warning is given, a person has not been convicted of an offence. It will be interesting to find out how long this information about warnings will be stored on police computers, and what status this information has. Will it, for example, be passed on to the Criminal Records Bureau, or other bodies.
It is also not clear if this information would be put before a court at a third offence. So if found in possession for a third time, and charged and taken before the court, would the previous two "formal warnings" also be brought up in court. Presumably the courts would be aware that people being brought before them for simple possession would have had previous warnings, and so may be inclined to apply harsher punishments.
2) A return to the Sus Laws?
This law will not be enforced consistently. People who are stopped and searched more frequently will use up their first two strikes faster. So young people, especially from Black and Minority Ethnic groups are likely to be put before the courts more frequently than others people. They get stopped and searched more; they will therefore be found in possession of cannabis more frequently.
3) Disproportionate effect on young people:
Young people already labour under a "Three strikes" law - the Crime and Disorder Act. This piece of legislation means that for a first offence, a young person may receive a reprimand; for a second offence they can receive a final warning and be refered to a Youth Offending Team. For a third offence they will be put before the court. So a young person who is found in possession of cannabis will, under the ACPO guidance, always be arrested. If this is their third offence they will be put before the court and, as a result will receive a criminal record of convicted. The police will have no discretion in this area. We will see a large number of young people criminalised at an early age, with the attendant problems for education and employment.
This will also have an impact on police/school relations. Schools have frequently been developing effective and flexible responses with local police, where police exercise discretion about how and where to intervene. This discretion would be removed by the guidance.
4) Why not just use existing legislation properly?
Much of the so-called "aggravated factors" are covered in other legislation anyway. If someone blows smoke in an officers face, that can be construed as assault. Other behaviour may be construed as breach of the peace, nuisance and so on. If these offences are taking place, they can be dealt with through existing legislation. There is no need to create new, cannabis-specific offences to deal with these issues. What this is really about is the police, desperate to maintain the power to arrest people for cannabis offences.
5) Who makes up drug policy anyway?
One of the most sinister aspects of this is that ACPO seem to have been given carte blanche to write drugs policy. Drug policy should be in the hands of democratic structures. The Advisory Council on the Misuse of Drugs (ACMD) should advise Parliament. Parliament, accountable to the people should then develop policy and law and Government departments spend money in accordance with the will of Parliament. Instead, cannabis policy has been handed to ACPO who have written guidance that flies in the face of both the ACMD recomendations and the recomendations of the Home Affairs Select Committee.
6) This situation is actually worse than before!
Lets assume that these changed go through in the way that ACPO are proposing. Before this, police officers could choose to arrest or not as they saw fit. A number of forces operated informal confiscate and warn policies and, under the Lambeth pilot this approach was formalised. Under the ACPO guidance this discretion is removed. The Guidance will direct police to arrest for a third offence, and allow arrest for a first and second offence. The net result may well be worse than the situation before and finally gives lie to the idea that we are seeing a more liberal approach to cannabis enforcement.
For further information please see:
The Guardian: http://www.guardian.co.uk/drugs/Story/0,2763,785766,00.html
Media Awareness Project: http://www.mapinc.org/drugnews/v02/n1652/a04.html?181
Met Police report in "The Job" http://www.met.police.uk/job/job883/1.htm