Clause 9 - Power of arrest for possession of Class C drugs
Criminal Justice Bill
5:15 pm
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
This is an extremely important clause. It is the clause whereby the Government propose that, as a result of the intended reclassification of cannabis from class B to class C, the law on what is an arrestable offence should be changed so that the offences in relation to possession of controlled and class C drugs become arrestable offences. When Lord Justice Auld reviewed the criminal justice system and made his extensive report, he did not address the issue. When Mr. Halliday undertook the sentencing review, he did not address the issue. It was not a core part of Government policy.
This proposal from the Home Office is part of what I—and many people outside Parliament, not only from my party—feel strongly is an extremely muddled response from Government. I shall take time to explain so that colleagues, whatever their views about the use and possession of cannabis, understand that it is nonsense to propose that we make possession of class C drugs—not just cannabis—arrestable offences. It is extra nonsensical to do it, as appears to be the case, because the Government want a power of arrest to be available in what they call aggravated circumstances; powers to arrest already exist in a lot, if not all, of such circumstances.
Even if we accept the premise that there are circumstances in which possessors of cannabis and other class C drugs ought to be able to be not only apprehended and charged but arrested and detained—treated as though they had committed more serious offences—the proposal is unnecessary because of the existing law. Possession of cannabis is an arrestable offence by virtue of the fact that it carries a sentence of up to five years' imprisonment. That is the result of its being a class B drug. After reclassification, anything that—as is proposed for cannabis—changes to class C will carry a maximum penalty of two years' imprisonment and therefore will no longer be an arrestable offence, unless we change the law, as proposed here, to make it so. In order to retain the
power to arrest after one has changed the category, one has to change the law, which is what is proposed. The arrestable offences are in a schedule to PACE.
There are other drugs, as colleagues are aware, that are less readily recognised as class C drugs, such as anabolic steroids and benzodiazepines, but cannabis is the best known. In fact, there are few offences of that type—perhaps when the Minister presents his case for change, he will say how many such offences are committed—so we are discussing a de minimis area of law.
For 30 years since the Misuse of Drugs Act was passed in 1971, the unlawful possession of class C drugs was not an arrestable offence. As colleagues on the Committee and many people outside the House know, decisions about the classification of drugs are made as a result of advice given to Government by various bodies and on the basis of harm: it is a harm-related test. The advice that was commissioned by the Home Secretary after the last election, to his credit, is that cannabis should be downgraded on medical grounds—not because it is not harmful, as I believe that it is to an extent, but because it falls into the lowest of the three bands. There is no dispute in Parliament and outside that it is less harmful than an excess of alcohol and much less harmful than tobacco, neither of which are class C drugs.
I think that when I last checked the figures, there were no deaths from cannabis in this country, according to a ministerial answer—there might have been a handful, but the last figures that I saw suggested that there were none—whereas there are 120,000 deaths a year from tobacco-related cancer. The two are in entirely different leagues. The number of deaths directly related to alcoholism and alcohol poisoning is somewhere in between. I think that the figure is 40,000 a year.
As far as I am aware—I am open to the Minister telling me otherwise—there were no complaints in the 1970s, 1980s or 1990s about law enforcement as a result of the fact that possession of class C drugs was not an arrestable offence. I am not aware that the police ever complained that it was a problem. The list of class C drugs grew during that time, but there was never any suggestion that possession should be an arrestable offence. Possession of class A and B drugs is an arrestable offence, and there is no proposal for that to change. The Liberal Democrats have debated the issue for two years, going around the country and taking evidence, setting up a policy review and discussing the issue at conference, and we do not believe that it should be possible to be imprisoned for any possession-only offence. Whether possession of a class A or B drug should be an arrestable offence is a slightly more difficult question, but because it might result in imprisonment, we argue that the power to arrest and imprison should not apply to possession-only offences. I would be happy if the law were to change so that arrest would be possible but the penalty of imprisonment would not apply.
Other bits of the law provide for powers of arrest. My understanding is that the police have a general
power of arrest under section 25 of the Police and Criminal Evidence Act 1984 in cases in which an officer has reasonable grounds to suspect that an offence, which is otherwise not an arrestable offence, has been committed, and where specific other circumstances exist. Aggravated circumstances, therefore, can take the offence from the non-arrestable to the arrestable category—for example, if the identity of a suspect is in doubt and the police need to arrest someone to identify them, or if the officer needs to intervene to prevent physical injury or damage. It is not as if an officer cannot arrest someone whom he or she believes is in possession of cannabis and about whom the officer has other concerns. The powers already exist. I believe that that is entirely sufficient as a way of dealing with any offences relating to cannabis use that do not qualify as offences under others parts of the law.
I understand the political difficulty that any Government have in not wishing to be seen as soft on drugs. Some of my colleagues, including my hon. Friend the Member for Richmond Park (Dr. Tonge), argue that all drugs should be legalised. I do not go that far; under international law we cannot go so far. She is a doctor who believes that we should. Other colleagues may not agree with her, but they believe that drug possession should not mean a prison sentence. I subscribe to that view.
Despite the difficult political position that the Government perceive themselves to be in, by now the public and the media overwhelmingly believe that possession of drugs should not mean a prison sentence. I do not think that the Government or the police believe that it should either. The Lambeth experiment, which was not a complete failure, was endorsed by the last borough commander, Commander Paddick, and the present borough commander, Commander Moore, regarded it as a significant success.
In order to avoid the impression that the Metropolitan Police are ''going soft on drugs'', a power of arrest is being proposed that will be exercised at the discretion of an officer only if there are aggravating circumstances. These include blowing smoke in a police officer's face or disorder involving someone in possession of cannabis or possession of cannabis by a person aged 17 or under. I do not know why we need one law giving an officer the power to arrest someone aged 17 or under and another for arresting someone who is 18 or 19. That strikes me as an odd and anomalous suggestion; it is, however, being proposed. Will a person under 17 be treated more severely than a person over 18? It seems odd to arrest them. I imagine that that will raise issues concerning care.
Why can the public order powers not be used to deal with someone who blows smoke at an officer? The only argument offered by the police and by Ministers is that we will need this law not for run-of-the-mill possession but for possession with aggravating factors. I understand that the Government do not wish to look soft, but they are trying to have it both ways: they are trying to make the statute book look tougher, yet in practice be softer. That sends out a completely confusing message: ''From now on you will be able
to go out to smoke cannabis only if you know that there is a risk that you may be arrested and given a long prison sentence, depending entirely on the discretion of the police in your area and the police officer on the night in question.''
That absolutely confuses the message that class C drugs are least serious; class B drugs are more serious but not the most serious; and class A crack cocaine and heroin are deadly serious. If we are trying to get intelligent, and less intelligent, young people to understand this message we must surely use the same argument that we have always used when giving the proof on the outside of a bottle or the information on the label on a box of tablets that tells you whether the product is harmful.
I hope that the Committee and the House will act intelligently in anticipating the debates in another place, as this proposition will not stand up to proper scrutiny. It will not get through Parliament as it is; it will be thrown out on its ear in the other place, and it would be ridiculed even if it did get through Parliament.
There have been two significant inquiries into the working of the Misuse of Drugs Act 1971. There was the Justice report in 1991 and Dame Ruth Runciman's well-respected Police Foundation report in 2000. Neither inquiry reported any problems caused by the fact that possession of class C drugs was not an arrestable offence. As far as I know, neither report said that the law must be changed.
If one looks back 10 years at the Justice report, which says that the power of arrest for possession of cannabis should be retained, one could argue that the experience of the following 10 years went in the opposite direction. The Runciman report considered that experience and specifically addressed the question of arrest for possession of cannabis. It did not make that same recommendation: indeed, it recommended that cannabis should be declassified and that there should not be a power of arrest. That was based on the experience of the police at that time, as well as of others who gave evidence.
There was concern in 1991 that an officer finding the drug would be disadvantaged without a power of arrest. That was the last argument that I heard made for the power of arrest for possession of cannabis. The substance would have to be sent to a lab for analysis, which could allow for allegations of misconduct and tampering. Moreover, the officer would lose the power to search premises after an arrest under the Police and Criminal Evidence Act.
However, my understanding is that everybody accepted when they gave evidence to Dame Ruth Runciman and her colleagues that better procedures, analysis and techniques make allegations much less frequent. Allegations used to be preventable and the systems worked much better before because the power under section 18 of PACE is limited to searching for evidence in respect of the offence for which the suspect was arrested. A section 18 search was not often justified for possession of cannabis unless the individual was a supplier who was about to go and do lots of deals.
The police could use many other powers in circumstances in which the Government and the police appear to think that the power of arrest may be necessary. The Public Order Act 1986, which we all know and which is widely used by the police, gives summary power of arrest for all offences that are contrary to that Act. Therefore, threatening, insulting and abusive behaviour all carry the power of arrest. Someone who might be in possession of cannabis and who on seeing the police coming is rude and vulgar can be arresting for that offence. The police do not require the extra power under the Bill.
The paradox is that, having realised that all those other powers exist, one sees that this is a bold proposal that does not have any limitations on when the power of arrest might be used. We could legislate to give a power of arrest in certain limited circumstances and include those provisions in the Bill. One could argue that there should be a power of arrest for cannabis possession according to guidelines agreed and approved by both Houses as secondary legislation. However, none of those points is argued. It is a bold, straightforward proposition to change cannabis from B to C, yet still make its possession an arrestable offence—the same as for other class C drugs.
I would not support a qualified change to the guidelines. However, if there was at least a serious proposition, there should be some way that people would see that the legislation would be applied consistently. It is no good to say that we shall leave it to the different police forces' discretion. If people who live in Camberwell, in the Solicitor-General's constituency, walk towards Brixton—where Southwark becomes Lambeth—they are still in SE5. People may cross that boundary on their way from one bar or one home to another. The policy in Southwark may be not to arrest people for cannabis possession, but the Lambeth borough commander of the day might say that his officers will arrest people.
Someone from Uxbridge may cross into Buckinghamshire because that is where his mates go, and the policy of the Buckinghamshire police—part of the Thames Valley force—might differ from that in Uxbridge. It is complete nonsense that the law should be different in different parts of the country. It either should be an offence to possess a drug or it should not. That has nothing to do with the debate on whether it is an offence to supply cannabis and to be a dealer. I am absolutely into clobbering people whose offence is being a dealer, and I would have an aggravated offence for those dealing outside school playgrounds, youth clubs and other places where vulnerable youngsters might be found.
It is bizarre that the proposed increase in the penalty for trafficking in cannabis will, under this package of changes, increase from five years to 14 years. It is bizarre, when the advisory council said that it was less serious and should be downgraded, that it is suddenly proposed to double, and nearly as much again, the maximum term of imprisonment—talk about people not having confidence in judges, the legal system and sentencing.