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Faktoja
Chapter Seven: Cannabis
1 As the preceding chapters show, cannabis is the drug most likely to
bring people into contact with the criminal justice system. It is, by
far, the drug most widely and commonly used. It is the drug most often
involved in the main drug offences and is the drug that is most often
seized. Because of the frequent use of discretion by the police and
customs, it is the drug where there is the widest gap between the law as
formulated and the law as practised. Cannabis is also less harmful than
the other main illicit drugs, and understood by the public to be so. If
our drugs legislation is to be credible, effective and able to support a
realistic programme of prevention and education, it has to strike the
right balance between cannabis and other drugs.
2 Thirty years ago the Wootton Report [1] identified the crucial issue:
'The controversy that has arisen in the United Kingdom about the
proper evaluation of cannabis in the list of psycho-active drugs, should
be resolved as quickly as possible, so that both the law and its
enforcement as well as programmes of health education, may be relevant
to what is known about the dangers of cannabis-smoking in this country, and
may receive full public support.'
This is the task that we set ourselves in this chapter. In it we bring
together the evidence which appears at many different points in this
report, and which forms the basis of our conclusions. In this chapter,
except in the section on therapeutic use, we discuss cannabis only in
its natural plant form, that is herbal cannabis and cannabis resin.
Prevalence, availability and price
3 Three successive British Crime Surveys (in 1994, 1996 and 1998) show
that cannabis is, by far, the drug most likely to have been used by all
age groups in the last month, last year or at any time. A 1998 survey of
11 to 15 year-old [2] school children suggests that taking cannabis is
relatively rare among 11 - 13 year-olds, but increases from the age of
14.
4 Younger people aged 16 to 29 are more likely than those aged 30 and
older to say that they have used drugs. About one in five people aged
16-29 in England and Wales say they have used cannabis in the last year,
and one in eight say they have used it in the last month (British Crime
Surveys since l994). An estimated two and a half million 16-29 year olds
used cannabis at least once last year, and around a million and a half
used it least once last month (based on the 1998 British Crime Survey).
5 In their evidence to the House of Lords Select Committee on Science
and Technology [3], the Department of Health said 'cannabis is now the
third most commonly consumed drug after alcohol and tobacco'. The House
of Lords report noted that the extent of cannabis use in the United
Kingdom is not dissimilar to that in other European countries and
somewhat lower than in the United States, Canada and Australia.
6 Both our MORI surveys and our meetings with young people make it clear
that there is no difficulty in obtaining the drug, nor is there any
sense that the law is a deterrent for the majority. This is so despite
record levels of seizures by police and customs. In 1997, 77% of all
drugs seized were cannabis - 150,000 kg. were seized by customs and the
police as well as 115,000 plants, almost all seized by the police. In
1990 the comparable figures were 31,000 kg. of cannabis and 34,000
plants.
7 Despite these efforts, the average price of cannabis appears to have
been virtually unaffected, decreasing slightly according to the National
Criminal Intelligence Service between December 1997 and December 1998,
although there are significant local and regional variations. Whether in
herbal or resin form, cannabis is commonly sold to consumers in
fractions of an ounce, with a deal consisting of 1/8 of an ounce. The
evidence suggests that 60% of sales are in the form of resin, 40% in the
form of herbal cannabis (of which 60-70% is said to be home grown). The
present average price of a 1/8 ounce is put at between £5 and £25
depending upon the form of the substance and its purported potency.
8 We have considered the evidence put to the House of Lords Select
Committee on Science and Technology [4] on the potency of cannabis in
its various natural plant forms. The evidence is conflicting. It appears
that, while some forms of herbal cannabis grown by hydroponic methods
may have concentrations of tetrahydrocannabinol (THC), the main
psychoactive ingredient of cannabis, of as much as 20%, the average THC
content in both herbal cannabis and cannabis resin as analysed by the
Forensic Science Service from seizures by the police is around 4-5%.
There is no evidence that the presence of THC in higher concentrations
leads to significantly higher health risks, just as it cannot be claimed
that the risks would be eliminated if only lower-strength varieties of
cannabis were available.
Relative harmfulness of cannabis
9 The main issue for any consideration of the current law on cannabis is
how harmful it is compared with other major illicit drugs and whether
that harm is properly reflected in the law. We have consulted a wide
range of addiction specialists on the relative harm of the major drugs.
We asked them to compare drugs independently of their legal
classification. The specialists' views underpin the legal classification
of cannabis that we propose [5]. We have also carefully considered the
work of other experts, including the written and oral evidence presented
to the House of Lords. We regard the following conclusions as a fair
representation of the current weight of professional opinion.
10 Cannabis is not a harmless drug. That is not in dispute. We cannot do
better than quote the summary of harms from cannabis set out by the
House of
Lords:
'...cannabis is neither poisonous..., nor highly addictive, and
we do not believe that it can cause schizophrenia in a previously well
user with no predisposition to develop the disease. However, we are satisfied
that:
- It is intoxicating enough to impair the ability to carry out
safety-critical tasks (such as flying, driving or operating machinery)
for several hours after taking...;
- It can have adverse psychic effects ranging from temporary
distress, through transient psychosis, to the exacerbation of
pre-existing mental illness...;
- Regular use can lead to psychological dependence...; and, in
some dependent individuals (perhaps 5-10 per cent of regular users),
regular heavy use can produce a state of near continuous intoxication,
making normal life impossible;
- Withdrawal may occasionally involve unpleasant symptoms...;
- Cannabis impairs cognitive function during use...;
- It increases the heart rate and lowers the blood pressure,
carrying risks to people with cardiovascular conditions, especially
first-time users who have not developed tolerance to this effect....
...In addition, smoking cannabis carries similar risks of
respiratory disorders to smoking tobacco.’ [6]
11 There is considerable concern that cannabis use may contribute to
transport accidents since laboratory tests show it can impair
performance including driving. However, a review of the scientific literature on drugs and driving commissioned by the European Monitoring Centre for Drugs and
Drug Addiction (EMCDDA) [7] found that evidence as to whether cannabis impairs driving
and increases the risks of road accidents was not entirely consistent.
Some studies found no significant effects on perception, and others pointed to some
impairment of attention and short-term memory, although these effects
are typically observed at higher doses. Still others suggest that drivers under the
influence of cannabis actually drive more carefully. Interpretation of
the causal contribution of cannabis to road accidents is further complicated by the concurrent presence of other drugs, especially alcohol.
12 This situation may change if use increases and the most recent
Department of Environment Transport and the Regions report on road
traffic deaths shows more cannabis positive cases as compared with ten years ago. Moreover, ongoing research suggests that when cannabis and alcohol are taken
together, their effects on driving are at least additive, and that they may even
increase each other's effects. We therefore support the active
discouragement of driving under the influence of cannabis, especially when in combination with alcohol.
Long-term risks
13 There are also long-term risks. It is worth noting the increasing
numbers presenting themselves for treatment for problems brought on by
cannabis use. The regional drug misuse databases [8] show that the number of people
seeking help from a wide range of drug agencies for problems with
cannabis use has doubled from 1,400 in 1993 (7% of the total seeking help) to 3,300 in
1998, (10% of the total). This is, of course, a small fraction of the
total number of people who take cannabis but the results must not be discounted. The
figures show people who identified cannabis as their 'main drug' when
seeking help. They do not, however, reveal the nature of the problems for which the
help was sought.
The gateway theory
14 Perhaps the most serious charge against cannabis is made by the
so-called 'gateway theory'. This argues that cannabis use leads to the
use of more dangerous drugs such as heroin and cocaine. The basic idea of the
gateway theory comes from the observation that most users of heroin and
other hard drugs have a history of using cannabis. In addition, various mechanisms have
been suggested to explain the supposed tendency of users to move from
cannabis to harder drugs. One such mechanism is said to lie in the structure of
illegal markets, which leads dealers to encourage cannabis users to try
other drugs in the hope of increasing profits. Another suggestion is that the
pharmacological action of cannabis somehow predisposes the users to try
other drugs. We examine these suggestions below.
15 It is certainly true that the use of hallucinogens, amphetamines,
cocaine and heroin is almost always preceded by experimentation with
cannabis use. It also seems that the earlier the initiation into cannabis, and the greater the involvement with it, the greater the likelihood of progression to the
use of other drugs. But these facts are not nearly enough to support the gateway theory. The theory has to show that there is a high probability that a cannabis user
will become a heroin user, not just that there is a high probability that a heroin
user has been a cannabis user. In fact, the vast majority of cannabis
users do not progress to the most dangerous drugs such as heroin. Any significant causal
relationship in that direction would have resulted in a far higher population of hard drug users than we have.
16 In our view nothing has emerged to disturb the conclusions of the
Advisory Committee on Drug Dependence in 1968 [9], when they said that
there was no convincing evidence that cannabis use in itself led to heroin use. This
has been largely confirmed by more recent studies. The World Health
Organisation noted in 1997 [10] that in some countries there had been a predictable
sequence of adolescent drug use with cannabis preceding the use of other
drugs including cocaine and heroin but that this
'does not imply that a high proportion of those who experiment
with cannabis will go on to use heroin, for example'.
Studies have also shown that cannabis is seldom the first drug that
people take for recreational purposes. They almost invariably start with
cigarettes or alcohol or both [11]. There is good evidence that the likelihood of 11 to 15 year-olds having ever used an illicit drug is strongly related to
regular underage smoking and drinking [12].
17 The suggestion, already mentioned, that there are pharmacological
properties of cannabis that predispose users of it to later heroin use,
has been discounted in a recent review of the United States literature [13]. Taking cannabis is not by itself an indicator of future heroin or cocaine use unless the
cannabis use is heavy and combined with psychiatric or conduct disorders and a family
history of psychopathology.
18 Social, cultural and market conditions associated with cannabis use
are a different matter. It may be that some cannabis users will go on to
other drugs through the influence of friends or the pressure of other factors
associated with problematic drug use, such as poverty and unemployment.
The WHO concluded that the most plausible explanation for some cannabis users
also using other drugs was
'....a combination of selective recruitment into cannabis use of
non-conforming and deviant adolescents who have a propensity to use
illicit drugs, and the socialisation of cannabis users within an illicit
drug-using subculture which increases the opportunity and encouragement
to use other illicit drugs.'
In particular, we take seriously the suggestion that pressure may be
exercised by dealers on cannabis users to try harder drugs. If there is
anything at all in the gateway theory, it is likely to be found in the structure of illegal markets.
19 There is no evidence that cannabis use is crime-related in the same
way as heroin or crack cocaine. Nevertheless, when people are arrested
for other crimes, cannabis is frequently found in their possession or traces of it
detected in their urine through analysis. In a study of a sample of 622
offenders arrested in five police areas in 1996/97 [15], cannabis was the most common illicit drug found in their urine. 46% of those arrested tested positive for it
compared with between 72% and 82%, depending on the area, testing positive for
alcohol. No particular offence was typical of those testing positive for
cannabis and they were not heavily involved with acquisitive crime. Given the wide
prevalence of cannabis use in the population at large (and even more so
among the age groups likeliest to be committing crime) this is hardly surprising. The
difficulty of assessing the significance of drugs in drug-related crime
lies in the absence of any evidence that it is the drug that causes the crime rather than other factors also associated with criminality.
Overall assessment of the harmfulness of cannabis
20 The British Medical Association has said [16] 'The acute toxicity of
cannabinoids is extremely low: they are very safe drugs and no deaths
have been directly attributed to their recreational or therapeutic use.' The
Lancet published an article [17] summarising the evidence on the most
probable adverse health and psychological consequences of acute and chronic use, and its
editorial in the same issue comments that '...on the evidence summarised
by Hall and Solowij, it would be reasonable to judge cannabis less of a threat than
alcohol or tobacco....We...say that, on the medical evidence available,
moderate indulgence in cannabis has little ill-effect on health, and that
decisions to ban or legalise cannabis should be based on other
considerations.'
21 New medical and scientific knowledge can still be expected to add to
the evidence of long-term harm from cannabis, despite the length of time
it has been available and the extent of its use. Nevertheless, as the House of Lords
report remarks, the harms must not be overstated. When cannabis is
systematically compared with other drugs against the main criteria of harm (mortality,
morbidity, toxicity, addictiveness and relationship with crime), it is
less harmful to the individual and society than any of the other major illicit drugs or than alcohol and tobacco. This is why our consideration of the relative
harmfulness of drugs has led us to the conclusion that cannabis is wrongly placed in Class B of Schedule 2 to the MDA.
22 These conclusions are also consistent with public perceptions of the
comparative harm of individual drugs. As the surveys conducted for us by
MORI show [18], children below the age of 15 see cannabis as almost as
harmful as other drugs. From the age of about 15 or 16, however, though
their perceptions of other drugs remain stable, their views on cannabis change remarkably. About 34% of 16 to 59 year-olds in our older sample considered cannabis
harmful or very harmful, far fewer than those who held that view about other
illicit drugs (90-98% depending on the drug) and about alcohol (67%) and
tobacco (84%).
The Law on Cannabis
The United Nations Conventions
23 We have set out [19] the general implications of the United Nations
conventions and discussed them further [20] in relation to trafficking
and possession offences. For cannabis the implications may be summed up as follows:
i) cannabis, cannabis resin and extracts and tinctures of cannabis are
included in Schedule I to the Single Convention while cannabis and
cannabis resin are also included in Schedule IV. The main MDA offences have therefore to
apply to cannabis as to other drugs;
ii) but there is no requirement to place cannabis in one Class rather
than another in the MDA, not least because the imposition of penalties
is largely a matter of domestic law. It is already dissociated from the other Single Convention Schedule I drugs, most of which are Class A;
iii) imprisonment is not required by the conventions as a sanction
either for possession or for cultivation for personal consumption.
Alternatives to conviction and punishment may be considered, including treatment, education, aftercare, rehabilitation, or social reintegration;
iv) some trafficking offences where cannabis is involved may also be
‘appropriate cases of a minor nature' where the same alternatives to
conviction and punishment could be considered;
v) for reasons that we explain in detail below, it would be possible
without renegotiating the conventions to permit the therapeutic use of
cannabis, cannabis resin or extracts and tincture of cannabis. The conventions do, however, prevent the prescription of cannabinols (except nabilone and dronabinol)
for medical treatment.
The UK law on cannabis
24 Under the MDA, cannabis and cannabis resin are placed in Class B.
Those in possession can incur a maximum prison term on indictment of 5
years with an unlimited fine. Traffickers may incur 14 years and an unlimited fine
with a liability to confiscation of assets in addition. Growers may also
be sentenced to 14 years and treated as traffickers because they are normally prosecuted
for production under section 4 of the MDA, not for cultivation under
section 6. The owners or managers of premises who knowingly permit or suffer the
smoking of cannabis are also exposed to a maximum prison term on
indictment of 14 years.
25 If, as we argue, the present classification of cannabis is not
justified, it follows that the response of the law is disproportionate
to the drug's harm, and may bring the law into disrepute. In our view, therefore, the maximum penalties for cannabis offences should be reduced. This would bring them
more into line with penalties in other European countries.
The operation of the law on cannabis
26 The number of people dealt with for drugs offences involving cannabis
rose from 40,194 in 1990 to 86,034 in 1997. This was an increase of 114%
and represented 76% of all drugs offences in 1997.
27 Enforcing the drugs laws, especially against the possession of
cannabis, inevitably involves the police in large numbers of stop and
searches. Over 300,000 were carried out for drugs in 1996-97 in England and Wales, bringing the total for four years to over a million. These resulted, over that
period, in 134,500 arrests where drugs were found - the great majority of which were for
cannabis. While the number of stop and searches has grown, the
proportion where drugs have been found and arrests made has declined from 18% in 1988 to
12% in 1997/8 [21]. Stops and searches bear disproportionately on young
people from minority ethnic communities in inner city areas. They certainly
appear to be discriminatory, although there may be demographic and
socio-economic reasons which would make it hard to eliminate the appearance of
discrimination altogether.
Figure 7.2 All Drug Offenders and Cannabis Offenders, 1985-1997
Diversion from prosecution
28 Many cases are kept away from the courts by cautioning and
compounding and, in Scotland, warning letters and fiscal fines. By far
the largest increase in police cautioning in England and Wales has been for cannabis offenders, from 41% in 1990 to 55% in 1997. This has meant in practice a tripling
in the number of cannabis offenders for which a caution was given, from 16,500
to 47,000. Cautions are part of an offender's criminal record. There is
no provision at present for these records to expire under the Rehabilitation of
Offenders Act 1974. The Government has recently issued a consultation
paper proposing that this anomaly should be corrected and that cautions should be immediately spent. This would also apply to reprimands and warnings, which are to
replace cautions for young people under 18 under the Crime and Disorder Act
1998.
29 Cautioning is not used by H.M. Customs and Excise or in Scotland. For
importation and exportation offences, compounding - a monetary penalty
in lieu of prosecution - may be used in cases involving cannabis not exceeding
10 grams in weight. While compounding does not necessarily become part
of an offender's criminal record, it may be mentioned in subsequent court
proceedings. Its use for cannabis importation offenders fell between
1990 and 1997 from 58% to 45%.
30 In Scotland, the procurator fiscal service which brings prosecutions
in criminal cases may, if the offender agrees, offer a fine instead of
prosecution. Such fines have only recently been used in drugs cases and in 1997, the first year for which figures are available, fines were accepted by 432 of 499
persons dealt with for possession of cannabis.
31 This discretion in the implementation of the MDA is desirable but
produces anomalies in the differing regimes of cautioning and
compounding, and inconsistencies in the cautioning rates between police forces. More than
half of the arrests for cannabis offences result in a caution. We do not
criticise the police for their extensive use of cautioning. It is currently the only
realistic and proportional response. Without it, the courts would have
ground to a halt. However, the use of discretion does not lessen the disproportionate
attention that the law and the implementation of the law unavoidably
give to cannabis and cannabis possession in particular.
32 Even with the use of discretion on this scale, the law's
implementation damages individuals in terms of criminal records and
risks to jobs and relationships to a degree that far outweighs any harm that cannabis may be doing to society. Moreover young people, particularly young black and Asian
people and particularly where stop and search is concerned, perceive the law as
unfair.
33 Discretion needs a clear framework in which to operate. That is why
we recommend that cautioning be put on a statutory footing, with
guidelines in regulations. This has already been done for people under 18 in the
provisions of the Crime and Disorder Act 1998. We do not favour less use
of discretion. Better the present, somewhat informal, arrangements than a tightening up
that leads to more people being brought needlessly into the criminal
justice system.
Sentencing of offenders
34 Even with diversions from prosecution on the present scale, between
1990 and 1997 large numbers of cases involving cannabis, 38,000 in 1997
- far more than any other drug - continued to be tried by the courts. Between 1990
and 1997, the proportion of people fined after being found guilty of
cannabis offences fell from 67% to 49%. The proportion imprisoned rose from 10% to 14%.
Despite Court of Appeal guidelines recommending fines as the normal
penalty for cannabis possession, fines for possession - by far the most frequent
offence - declined markedly from 70% to 55% of cases. Over the period
there was a small rise in the proportion sentenced to imprisonment, from 6% to 8%. While
the reasons for imprisonment are not completely clear, there are
indications that almost no one is given an immediate custodial sentence solely for
possession of cannabis, unless there is evidence of persistent flouting
of the law.
35 Between 1990 and 1997, the likelihood of being imprisoned for the
more serious, mainly trafficking, offences increased and the likelihood
of being fined declined. For example, the proportion of people fined for production of
cannabis fell from 63% to 37%, while the percentage given immediate
custodial sentences rose from 6% to 16%. The proportion of offenders fined for
allowing premises to be used for cannabis offences halved to 22% in
1997, while the percentage given sentences of immediate custody more than doubled to
19%.
36 The concentration on cannabis as an objective of law enforcement is
at odds with the views of a significant proportion of the population.
The surveys conducted for us by MORI show that two-thirds of adults want strong
legal controls on drugs and do not regard drug use as a private matter
beyond the law. But most of them do not include cannabis among the drugs that need
controlling. Almost one-half (46%) thought that the law should be
changed so that it is not against the law to use it. When asked to select three things they thought should be the highest priorities for the police, less than 1% of
respondents mentioned cannabis use as opposed to 8% who selected heroin use. Only 9%
chose cannabis dealing as compared to 66% who chose heroin dealing. 54%
said that cannabis use should be the lowest priority as compared to 1%
who said that heroin use should be.
37 In considering the current operation of the law and sentencing
patterns we are of the view that the possession of cannabis should not
be an imprisonable offence. Consequentially, it should no longer be an arrestable offence
in England and Wales under section 24 of PACE. Further, the prosecution
of offences of cannabis possession should be the exception and only then should an
offence, if there is a conviction, incur a criminal record.
Cultivation of cannabis
38 Cultivation of cannabis is a separate offence under section 6 of the
MDA but cases are generally prosecuted under section 4 (2) as
production. This was not the position in 1971. The definition of cannabis covered only the flowering or fruiting tops of the plant, with the result that a person
found growing plants that had not yet flowered or produced fruiting tops was not guilty of production, though he could be prosecuted for cultivation. Section 52 of
the Criminal Law Act 1977 widened the definition of cannabis in the MDA to include almost
the whole plant. Since then, cases have been brought under section 4;
section 6 has become virtually a dead letter.
39 This change is more than a legal technicality because production, but
not cultivation of cannabis, is designated as a trafficking offence for
the purposes of the Drug Trafficking Act 1994. Confiscation of assets may result from a
conviction. This may be disproportionate in cases involving a few plants
for personal use. Although we have heard no reports of the courts ordering
confiscation in such cases, the law as it stands seems to allow the
possibility.
40 This situation is not required by the United Nations conventions. The
1988 convention against illicit traffic in narcotic drugs and
psychotropic substances [22] permits two separate offences: one of cultivation for the purpose of the production of narcotic drugs (in effect the trafficking offence);
the other cultivation for personal consumption (an offence for which imprisonment
as a sanction is not required). This approach to cannabis cultivation
seems clear and logical compared with that of the MDA. There are real differences, which
United Kingdom law does not currently reflect, between activities that
are production for the purposes of supply, and those that are cultivation for personal
use.
41 We recommend that the cultivation of small numbers of cannabis plants
for personal use should be a separate offence from production, and
should be treated in the same way as possession of cannabis.
International Comparisons
42 In coming to our conclusions we were influenced by the experience of
other countries. The position in the Netherlands has been of particular
interest as the country where tolerance of cannabis has been taken furthest. Dutch law
divides drugs into two classes. One class includes all the drugs defined
as carrying an unacceptable risk. The other class contains all the other drugs. The
maximum penalties for offences involving the possession of drugs in this
second class are significantly milder, one month's detention as opposed to one year. The
main aim of the law is to ensure that drug users are not caused more
harm by prosecution and imprisonment than by the use of the drugs themselves.
43 Dutch drugs policy is aimed at separating the market for less harmful
drugs - herbal cannabis and cannabis resin - from the market for drugs
carrying an unacceptable risk - such as heroin and cocaine. The Dutch reject the
idea that cannabis pharmacologically induces people to switch from soft
to hard drugs. They do, however, accept that the more that users are part of a
subculture where drugs of both classes are obtainable, the greater the
risk of progression from soft to hard drugs.
44 Within this framework, the sale of cannabis from licensed or
regulated coffee shops, for use either on or off the premises, is
tolerated. The coffee shops and their regulation are seen as consistent with a broader public information and education policy. This is based on accurate information
about the risks of drug use, as well as of alcohol and tobacco, and ways of limiting those risks.
45 There is a 5 gram limit on individual sales (originally 30 grams but
reduced in 1995), and a 500 gram limit on the coffee shop stocks.
Although possession and supply remain offences, prosecution is waived in the public interest provided these amounts are not exceeded under a formal written policy
based on the principle of expediency. Other conditions that have to be met if the
coffee shop is to remain in business are:
i) no sales of hard drugs;
ii) no sales to minors;
iii) no advertising;
iv) no sales of alcohol on the same premises;
v) no nuisance (specific local rules may be set about such matters as
parking in front of the entrance or early closing times).
46 If coffee shops violate these conditions they risk being closed down,
and since 1996 the number of coffee shops has been reduced by between
10% and 15%. There is a tripartite approach involving the local authority,
police, and public prosecutor to deal with issues arising from the
regulation of coffee shops.
47 Holland's formal written policy of not prosecuting people found in
possession of small amounts of cannabis dates from 1976, with coffee
shop sales tolerated from 1980. It was not followed immediately by increases in the
numbers using the drug. But, beginning in 1984, use increased sharply
following increasing commercialisation. Increases in use in Holland since the
early 1990s have paralleled increases taking place in the United States
and in other countries with stricter enforcement policies. The recent publication of
the survey of drug-taking prevalence in Holland [23] shows that the
number of people ever taking cannabis there, or taking it in the last month, is
significantly lower than that shown in the 1998 British Crime Survey.
Figure 7.3 Use of Cannabis in 1997 Netherlands Survey and 1998 British
Crime Survey by age group. Rounded Percentages.
48 The following results are claimed for the Dutch drug policy:
i) Although cannabis use has increased since the coffee shop
policy was introduced, similar or greater increases have taken place in
other countries including the United Kingdom, the United States, the
former West Germany, France, Spain, Sweden and Finland [24];
ii) self-reported cannabis use amongst the youngest surveyed age
group (16-19 years) is consistently lower in the Netherlands than the
United Kingdom;
iii) the number of problem drug users has been stable for many
years, and the average age of this group in Amsterdam has risen year on
year and is now 36. (United Kingdom data suggest annually increasing
numbers of problem drug users, the average age of new addicts is 25 or 26, while between 1991 and 1996 the proportion under 21 rose from 15% to 22%);
iv) drug-related deaths per million population are the lowest in
Europe. In 1995, the figure for the Netherlands was 2.4 as against 31.1
for the United Kingdom. (We recognise the difficulty of comparing
mortality statistics between countries on a like for like basis but the
relative success of the Netherlands seems undeniable on any conceivable
interpretation).
49 The coffee shop approach has not been without critics even in Holland
itself. It seems, however, that Holland can justly claim to have
separated the heroin and cannabis markets. As a result, young people are far less likely in Holland than elsewhere to experiment with heroin. Although there is room
for argument over how precisely this has been achieved, it is difficult to deny that
the policy of separation of markets, including the toleration of coffee
shops, has made a contribution.
50 It should be noted that it is not certain that most sales of cannabis
take place through the coffee shop system - one estimate puts the
proportion at a third. We cannot therefore be certain that it is the policy of market
separation that has achieved the Dutch success with heroin, although the
possibility is a very real one. The same success in separating cannabis from heroin is not claimed for other drugs, particularly cocaine, amphetamines and ecstasy.
51 The coffee shop mechanism is difficult to reconcile fully with the
requirements of the United Nations conventions. The policy of
non-prosecution for the sale and possession of small amounts can be justified on the basis that the prosecution of offences is left to domestic law, under which
discretion may be exercise if it is expedient in the public interest. A similar public
interest criterion is applied by United Kingdom prosecutors. It is less
easy to justify the holding of stocks of cannabis by coffee shops, and their supply through cultivation or importation (about half from each). The supply, at least,
seems to take place in breach of the law.
52 Despite these difficulties and contradictions, we think that the
Dutch experience holds two important lessons for the United Kingdom. The
first is the potential benefit from treating the possession and personal use of all
drugs - not just cannabis - primarily as health problems. This should
ensure that young people who experiment with drugs remain integrated into society rather
than becoming marginalised. The second is the potential benefit from
separating the market for cannabis from that of heroin. By doing so, the Dutch have
provided persuasive evidence against the gateway theory of cannabis use,
and in favour of the theory that if there is a gateway it is the illegal market place.
53 We recognise that, in the present political and cultural climate, it
is difficult to see the introduction of Dutch-style coffee shops in the
United Kingdom. The contradictions between domestic and international law and these
practices are too great. The Dutch may be able to live with them, but
they are likely to cause greater difficulties here. Nevertheless there may be developments that move us towards the Dutch experience, particularly as greater autonomy
is devolved to local communities.
54 Other international comparisons suggest that the law has a limited
effect, if any, on use [25]. During the 1970s several states in the
U.S.A. reduced the maximum penalty for the first offence of possession of small amounts of marijuana for personal use to a small fine. Levels of marijuana use
increased between 1972 and l977 in those states but even more so in the states
that had not reduced penalties. In fact the greatest rises in use took
place in states with the most severe penalties.
55 Since 1987, South Australia has operated a cannabis expiation notice
(CEN) scheme under which the payment of a small fine within 60 days
enables offenders over 18 to avoid prosecution. The expiable offences include
offences consistent with personal use. The number of notices issued
under the scheme doubled between 1987 and 1996, probably due to the greater ease of CEN
procedures compared with the arrest and charge procedures required for
prosecution. In response to a decline in the rate at which fines were
paid between 1987 and 1991/2 new legislation was introduced in 1996
intended to increase the rate of expiation by allowing the offender a greater range of
payment options. Figures to 1995 indicated that there was an increase in
cannabis use since the beginning of the CEN scheme. However, there were also increases over the same period in two other states where penalties had not changed. There
were no greater increases either in weekly cannabis use or in use among 14 to 29
year olds in South Australia compared with the rest of the country [25].
Therapeutic use of cannabis
56 Until 1973, tincture of cannabis had been available for medical use
for over 100 years. In 1973, the medical use of cannabis was prohibited
in the United Kingdom following a long decline in its use in favour of what were
considered more reliable drugs. Beginning in the 1980s, interest in the
potential benefits of cannabis for the treatment of certain medical conditions was renewed, and has become a significant issue. The medical and scientific basis for
this increased interest has been considered by the British Medical Association [27] and
the House of Lords [28]. We have nothing to add to the detail of the
reports of the expert members of both of these bodies. However, we recognise the
importance of careful consideration of the issue because of the
implications that therapeutic use of cannabis has for the MDA.
57 Cannabis, cannabis resin, cannabinol, and cannabinol derivatives are
listed in Schedule 1 to the Misuse of Drugs Regulations 1985 (except
dronabinol or its stereoisomers which are now in Schedule 2 of the regulations). In
effect, this means that these substances cannot lawfully be produced,
supplied, possessed, imported or prescribed except under licence from the Secretary of State issued under Regulation 5. The drugs are also designated by order under
section 7 (4) of the MDA as drugs whose production, supply and possession are unlawful
for any purpose other than research.
58 Two cannabinoid-type substances can be prescribed by doctors as part
of the treatment of their patients. The first is nabilone. This is not a
controlled drug. It is a synthetic analogue of THC which is licensed under the Medicines
Act 1968 for prescription to patients with nausea or vomiting resulting
from cancer chemotherapy and which has proved unresponsive to other drugs. The
second is dronabinol, which is a synthetic THC in sesame oil and appears
in Schedule 2 to the 1985 regulations. This allows it to be prescribed on a
named-patient basis for the same purpose as nabilone.
59 The United Nations conventions are restrictive but there is more room
for manoeuvre in the case of cannabis and cannabis resin than there is
over cannabinols. Cannabis and cannabis resin are contained in Schedule IV to
the Single Convention. Article 2.5 (b) of this states 'A Party shall, if
in its opinion the prevailing conditions in its country render it the most appropriate
means of protecting the public health and welfare, prohibit the
production, manufacture, export and import, trade in, possession or use of any [Schedule IV] drug except for amounts which may be necessary for medical and scientific
research only, including clinical trials therewith to be conducted under or subject to
the control of the Party.' This does not impose a mandatory obligation
on the United Kingdom to prohibit any of those activities in relation to cannabis or
cannabis resin because it is subject to the proviso that the prevailing
conditions in the country concerned make it the most appropriate means of protecting the
public health and welfare. For example, heroin, another drug contained
in schedule IV to the Single Convention, is in fact available on prescription in the
United Kingdom for the treatment of organic disease or injury.
60 The position with cannabinoids is different. They are listed in
schedule I of the 1972 United Nations Convention on Psychotropic
Substances. Article 7 (a) of this requires states to 'prohibit all use except for scientific and very limited medical purposes by duly authorised persons, in medical or
scientific establishments which are directly under the control of their Governments
or specifically approved by them'. There is no saving for 'prevailing
conditions' in the country concerned and the requirement is therefore binding. Because of
it dronabinol had to be moved from Schedule I of the 1972 convention,
before it was possible for the United Kingdom government, in 1995, to put it in
Schedule 2 to the 1985 Regulations, thus allowing its prescription for
medical purposes.
61 To summarise, the government has the power to allow cannabis and
cannabis resin, including tinctures and extracts, to be prescribed in
this country without renegotiation of the international conventions. But for cannabinols
other than dronabinol and nabilone to be used therapeutically, the
conventions would have to be renegotiated first.
62 The British Medical Association concluded [29] that cannabis in its
plant form was unsuitable for medical use. The grounds were
a) cannabis contains over 400 chemical compounds and over 60
cannabinoids. Even if proved to have therapeutic benefits, it would not
be possible to know which agents (or combination of agents) were
beneficial, and medical knowledge would not be advanced or treatment improved;
b) the difficulty at (a) is compounded by the variation in the
concentration of cannabinoids present in different preparations
(although it seems that standardised preparations might be possible);
e) the known toxic ingredients in cannabis smoke.
63 On cannabinoids (including apparently the cannabinols), the British
Medical Association made the following recommendations, among others
[30]:
'1. The World Health Organisation should advise the United
Nations Commission on Narcotic Drugs to reschedule certain cannabinoids
under the United Nations Convention on Psychotropic Substances,
as in the case of dronabinol. In response the Home Office should alter
the Misuse of Drugs Act accordingly.
2. In the absence of such action from the World Health
Organisation, the Government should consider changing the Misuse of
Drugs Act to allow the prescription of cannabinoids to patients with
particular medical conditions not adequately controlled by existing
treatments.’
64 The House of Lords Select Committee on Science and Technology said
[31] that there was not enough rigorous scientific evidence to prove
conclusively that cannabis itself has or has not medical value of any kind.
Nevertheless the anecdotal evidence convinced them that cannabis almost
certainly does have genuine medical applications, especially in treating multiple sclerosis. Because of the delays inherent in the system for licensing new
medicines, they recommended that the Government should take steps to transfer cannabis
and cannabis resin from Schedule 1 to the Misuse of Drugs Regulations
1985 to Schedule 2. This would permit doctors to prescribe an appropriate
preparation of cannabis, albeit as an unlicensed medicine and on the
named-patient basis, and allow doctors and pharmacists to supply the drug prescribed.
65 The Select Committee said that the principal reason for recommending
that the law be changed was compassionate. Illegal medical use of
cannabis was quite widespread and exposed patients and, in some cases, their carers
to all the distress of criminal proceedings, with the possibility of
serious penalties. As a secondary reason, the Committee mentioned that the law appeared to be being enforced inconsistently and sometimes with a very light hand. Some
cases were not brought to court, and when they were, sentences were sometimes light
or juries even refused to convict. They felt that this brought the law
into disrepute and that, rather than enforce it more rigorously, it should be changed.
Our view
66 We appreciate the doubts of the British Medical Association over how
to control and assess dosages of raw cannabis. But these seem to us
insufficient reasons for preventing prescription where doctors, at their own risk on
a named-patient basis, believe that their patients will benefit. Also,
while understanding the reservations expressed by the British Medical Association and the
House of Lords Select Committee about administration by smoking, this
seems to us a very minor matter given the seriousness of the conditions for which
prescription of cannabis seems likely to be beneficial.
67 We conclude that there is evidence that there are therapeutic
benefits from the use of cannabis by people with certain serious
illnesses and that these benefits outweigh any potential harm to themselves. We therefore agree with the House of Lords Select Committee that cannabis and cannabis
resin, together with tincture and extracts not covered by the 1971 convention, should be
transferred from Schedule 1 to Schedule 2 to the 1985 regulations. That
would automatically ensure that doctors who prescribed such substances were
not criminally liable. The same would apply to their patients in
possession and doctors or pharmacists who supplied cannabis. Arrangements would need to be worked out for pharmacies to secure legitimate supplies of stocks, but
that should not pose insuperable problems. We do not share the Government's anxiety
about the capacity of GPs to withstand pressure for the prescription of
cannabis. There is no evidence that this has been a problem where the prescription of
heroin for pain control is concerned.
68 As the Government has rejected the House of Lords recommendations and
it will be some years before a standard licensed cannabis product is
available, we recommend that there should be a new defence of duress of circumstances
on medical grounds for those accused of possessing, cultivating or
supplying cannabis. We recommend that the burden be on the accused to prove the
defence. This approach would comply with our international obligations
under the United Nations conventions and enable spurious defences to be rejected.
Arguments for and against change in the law
69 We are bound to accept that there is a risk that the changes in the
law which we propose may lead to the use of cannabis by more people,
some of whom may become dependent on it. But on the evidence of the current wide
availability and use of the drug in the United Kingdom, and given the
attitude of the public to the deterrent effect of the law, we do not think that the risk
is significant. It is not possible to quantify it or to be sure that
there will be an increase in use at all.
70 There may also be a risk of more people being dealt with more
severely than at present if the Scottish system of fiscal fines is
introduced in England and Wales as we recommend. Again we do not think that the risk is a serious one. The police are likely to be fairly selective in sending cannabis
cases to the CPS for consideration of a fine. In any case, we envisage that statutory
guidelines on these and on cautioning should define carefully the cases
likely to be suitable for each disposal.
71 These are minor and largely speculative disadvantages compared to the
real gains that we foresee from the changes that we recommend. They
would lead to a law that fits better with public attitudes, and overcomes the present
inhibition on accurate education about the dangers of cannabis,
especially the long-term risks. It is this aspect of drug use which is usually absent from young people’s assessment of harm. Better education should in turn lead to
more responsible norms of cannabis taking, especially where driving is concerned.
72 A primary concern of ours is minimising the adverse, unnecessary and
disproportionate criminal consequences for very large numbers of
otherwise law-abiding, usually young, people. Our recommendations are intended to
support the education, prevention and treatment elements of a broader
health agenda, which itself reflects the relative risks of different drugs including
cannabis. Our recommendations are not in breach of the United Nations
Conventions. All of the present cannabis offences are being retained. The recommendations
are in fact closer to the spirit of the conventions in taking an
approach to personal consumption that is less punitive and more orientated towards health and education.
Our conclusions and recommendations on cannabis
73 Weighing the harm from cannabis against the costs of the current
system of control leads us to the conclusion that cannabis is in the
wrong class in the MDA, both as a reflection of its dangers relative to other drugs and in respect of the penalties attached to its possession, cultivation and
supply. International comparisons indicate that different approaches are possible within the United Nations Conventions, and do not pose significant risk of
worsening the situation.
74 As long as cannabis is illegal and so widely used, it will be the
drug that occurs most frequently in all enforcement activities against
drug misuse, whatever their objective. Inevitably, cannabis offences and especially offences of cannabis possession, will dominate the operation of the law in
statistical terms, reflecting very large numbers of arrests, prosecutions and criminal
records. Despite this expense of time and resources by the courts, and
especially the police, there is little evidence of the law's effectiveness as a deterrent.
While we have accepted that the police need to retain the powers of stop
and search conferred by the MDA, we have seen no evidence to persuade us that they need to retain the power of arrest following the discovery of cannabis, whether
as a result of stop and search or other operations.
75 There can be no doubt that, in implementing the law, the present
concentration on cannabis weakens respect for the law. We have
encountered a wide sense of unease, indeed scepticism, about the present control regime in relation to cannabis. It inhibits accurate education about the relative
risks of different drugs including the risks of cannabis itself. It gives large numbers of otherwise law-abiding people a criminal record. It inordinately
penalises and marginalises young people for what might be little more than youthful
experimentation. It bears most heavily on young people in the streets of
inner cities who are also more likely to be poor and members of minority ethnic communities. The evidence strongly indicates that the current law and its operation
creates more harm than the drug itself.
76 We see our recommendations as the first steps of an incremental
process. The aims of this process are to achieve less coercive but more
effective ways of reducing the harms of cannabis, and to bring those harms and the harms
of the law into a better balance.
77 Our recommendations on the law on cannabis and its implementation
are:
i) Cannabis should be transferred from Class B to Class C of
Schedule 2 of the MDA and cannabinol and its derivatives
should be transferred from Class A to Class C.
ii) The possession of cannabis should not be an imprisonable
offence. As a consequence, it will no longer be an arrestable
offence in England and Wales under section 24 of PACE, and
arrests will only be possible under section 25 of PACE where
there are identification or preventative grounds.
iii) Prosecution of offences of cannabis possession should be the
exception and only then should an offence, resulting in a
conviction, incur a criminal record. An informal warning, a
formal caution, a reprimand or warning in the case of those aged
17 or under, or a fixed out-of-court fine should be the normal
range of sanctions.
iv) The cultivation of small numbers of cannabis plants for
personal use should be a separate offence from production and
should be treated in the same way as possession of cannabis,
being neither arrestable nor imprisonable and attracting the same
range of sanctions. Cultivation of cannabis for personal use
under section 6 and production under section 4 should be mutually
exclusive offences.
v) The maximum penalty for trafficking offences for Class C
drugs, including cannabis, should be 7 years imprisonment
and/or an unlimited fine. This is broadly in line with those
European countries which we have studied and somewhat higher
than most of them. Cannabis trafficking offences would, like all
such offences, continue to attract the confiscation powers of the
Drug Trafficking Act 1994.
vi) Permitting or suffering people to smoke cannabis on premises
which one occupies or manages should no longer be an
offence under section 8 of the Misuse of Drugs Act 1971.
vii) Statutory sentencing guidelines should include vicinity to
schools, psychiatric services and prisons as aggravating factors
for the purposes of sentencing for trafficking offences.
viii) Cannabis and cannabis resin should be moved from Schedule 1
to Schedule 2 of the MDA Regulations thereby permitting
supply and possession for medical purposes. If there is to be any
delay in adopting this recommendation pending the
development of a plant with consistent dosage, we recommend a
defence of duress of circumstance on medical grounds for those
accused of the possession, cultivation or supply of cannabis.
Footnotes:
2. Office of National Statistics, ‘Smoking, Drinking and Drugs Use Among
Young Teenagers’, London, The Stationery Office 1999.
3. 'Cannabis. The Scientific and Medical Evidence’, London, The
Stationery Office 1998. (HL Paper 151, November). Paragraph 6.3.
4. Report cited in footnote 3, paragraphs 6.11-6.15
5. See Chapter Three, paragraph 31.
6. See paragraphs 8.19 and 8.21 of the report cited at footnote 3.
7. 'Annual Report on the State of the Drugs Problem in the European
Union 1999.’ Luxembourg, Office of Official Publications of the European
Union, 1999. Page 28.
8. See Chapter Two, paragraphs 14 and 15 for a fuller account.
9. Paragraph 6.3 of the report cited at footnote 1.
10 'Cannabis: a health perspective and research agenda’. Geneva, World
Health Organisation, 1997. Section 5.4.
11. D.B. Kandel and others, ‘Stages of progression of drug involvement
from adolescence to adulthood: further evidence for the gateway theory’,
Journal of Studies on Alcohol, (53)
1992, pp. 447-457.
12. See report cited at footnote 2.
13 Institute of Medicine, ‘Marijuana and medicine: assessing the science
base’. Washington, D.C., National Academy Press 1999. Chapter Three.
14. See paragraph 5.4 of report cited in footnote 10.
15 T. Bennet, ‘Drugs and crime: the results of research on drug testing
and interviewing arrestees’, Home Office Research Study 183, London,
Home Office 1998.
16. ‘Therapeutic uses of cannabis’, Amsterdam, Harwood Academic
Publishers 1997. Page 65.
17. W. Hall and N. Solowi, 'Adverse effects of cannabis', The Lancet 14
November 1998, pp. 1611-1616.
18. See Chapter Two, paragraphs 59-61.
19. See Chapter One, paragraphs 5-14.
20. See Chapter Four, paragraphs 6 and 7, and Chapter Five, paragraphs 2
to 6.
21. Home Office Statistical Bulletin 2/99, ‘Operation of Certain Police
Powers under PACE: England and Wales 1997/8’. London, Home Office 1999.
22. See Chapter One, paragraph 9 and 10.
23. 'Licit and illicit drug use in the Netherlands, 1997’ Centrum voor
Drugsonderzoek, Universiteit van Amsterdam. 1999
24. The best data for this comparison are to be found in the Annual
Reports of the European Monitoring Centre for Drugs and Drugs Addiction.
Care must be taken in interpreting the
data as there are differences between countries in the survey years,
drugs covered and age range of samples.
25. E. Single. 'The impact of marijuana decriminalisation: an update'.
Journal of Health Policy, (Winter, 1989), pages 456-466.
26 R. Ali, et al., ‘The social impacts of the Cannabis Expiation Notice
scheme in South Australia’. Canberra: Department of Health and Family
Services 1998.
27. See report cited at footnote 16.
28. See report cited at footnote 3.
29. See pages 68 and 69 of report cited at footnote 16.
30. See pages 78 and 79 of report cited at footnote 16.
31. See paragraph 8.1 of report cited at footnote 3.
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