Prohibition and Misuse of Drugs Act

A drug has been described in the Oxford Dictionary as: “a medicine or other substance which has a physiological effect when ingested or otherwise introduced into the body.” [1] The word drug is without any implication of a positive or negative effect on the human body. Most drugs are taken for medicinal purposes in aid of reducing and preventing symptoms of disease and illnesses. However there those drugs which are taken for recreational purposes. These drugs often come with side effects that give the user a recreational experience.

An article on the history of the drug Marijuana, shows that the prohibition of drugs can be dated back as early as 1800 within the Modern Era. Napoleon’s concern for the welfare of his men, and their mental condition, led to Napoleon prohibiting the use of the drug Marijuana amongst his people stating that its use led to “delirium and loss of reasoning”. [2] An early record of prohibition of drugs within the UK can be seen in the Sale of Arsenic Act 1851 [3] section 2 prohibits the sale of Arsenic to unknown people. This Act was a result of murders and various poisonings and was aimed at deterring this crime. More recent legislation introduced with the object of prohibiting drugs is the UK Misuse of Drugs Act 1971. [4] This Act was introduced to conform to the Single Convention on Narcotic Drugs 1961 and also in order to prohibit the possession and the supply of controlled drugs within the UK.

Prohibition is the “action of forbidding something, especially by law.” [5] In the context of drugs, it refers to the illegality of drugs. Depending on the classification of the drug the level of prohibition differs. The most commonly known prohibited drug is cannabis, which according to a survey on drug misuse by the Home Office, was the most popular illicit drug used. [6] Other commonly known illicit drugs are heroin, opium, cocaine, amphetamine, ecstasy and LSD. There are two main pieces of legislation which govern the use of drugs, the first is the Misuse of Drugs Act 1971 and the second is the Medicines Act 1968. The natures of the prohibited drugs that will be discussed in this essay are recreational psychoactive drugs which are governed by the Misuse of Drugs Act 1971 [7]

The Misuse of Drugs Act 1971 governs the use of controlled drugs. This includes the use of medicinal and non-medicinal drugs. The Act makes it an offence to:

Possess a controlled drug unlawfully;

Possess a controlled drug with the intention to supply;

Offer to or Supply a controlled drug

By amendment in 2005, allow your premises to be unlawfully used in order to cultivate controlled drugs.

It divides the classification of controlled drugs into three categories: Class A, Class B and Class C with each of these classes carrying different penalties. Class A drugs are treated as the most dangerous and thus carries the largest penalty of 7 years imprisonment if found guilty of possessing and Life imprisonment if found guilty of supplying. Class B and Class C drugs both have lower penalties and carry a maximum penalty of 14 years imprisonment if found guilty of supplying. The penalty for possessing Class B and Class C drugs are 5 years and 2 years imprisonment respectively.

The main cause behind the prohibition of controlled drugs is in order to deter people from using controlled drugs. The theory behind prohibition is the fact that it makes a drug illegal which will in itself reduce the number of people who use that drug on the basis that it is illegal and therefore morally wrong to transgress these bounds. The NSW Bureau of Crime Statistics and Research found that 29% of 18-29 year olds cited illegality as their reason for not using the drug. A further 19% of people interviewed cited illegality as the reason for stopping cannabis use. [8] However, this is not always the case, as a report conducted by the European Monitoring Centre for Drugs shows that the Netherlands are one of the lowest cannabis users in Europe with Greece being the lowest. [9] This is despite the Netherlands being one of the most tolerant countries with regards to their policy on the use of cannabis, allowing people to obtain cannabis via prescription and also being able to obtain the drug in licensed cafés. The reduction in the class of cannabis from B to C in 2004 showed that the use of cannabis reduced by 7% according to the British Crime Survey, [10] however I must stress heavily that by legalising a crime does not mean that the crime no longer takes place but merely the “crime” now takes place legally. Therefore by lowering the class of cannabis there was a reduction in the crime rate not in the rate of usage of cannabis. Although on paper it may seem that removing prohibitions and restrictions on drug use do work when in reality it is only hiding the truth.

Prohibition raises the question as to “why do we need to deter people from the use of these drugs?” A major argument in the cause of prohibitive drug laws is the health and disease factor. It is a widespread case that the use of prohibited drugs can be harmful. In 2007 it was reported that UK had the 6th worst mortality rate due to drug induced deaths in all of Europe. [11] An article against drug legislation in Australia states that the number of deaths for drug users was 10 times more than alcohol and 7 times more than tobacco. [12] UNAIDS, a programme set up to create awareness and prevent the spread of AIDS has estimated that a third of newly infected HIV cases in Africa are due to injecting drug users. [13] However, a countermeasure has been adopted in the Netherlands to prevent this type of spread through distribution of free needles. It is believed that the prohibition contributes to the spread of HIV through illegality of these drugs, which creates a lack of needles and therefore injecting drug users resort to needle sharing which passes on infections such as HIV.

The health risks posed by illicit drug use are not clear cut and many people believe that the risks have been exaggerated and believe that legal drugs such as alcohol and tobacco carry far greater risk. Nutt et al created a rational scale in order to compare and contrast the harms of drugs and in their studies they found that alcohol posed more dangers than drugs such as Ecstasy, LSD, Amphetamines and Cannabis. [14] Studies of this nature have created widespread counter arguments stating that governments have extrapolated data and created misleading health statistics and cast doubts over the real dangers, if any, of drug use.

Tien and Anthony conducted a study in which they compared drug use and its side effect psychosis. Their study showed that if cannabis was consumed daily it doubled the risk of psychosis. [15] It has also been related to the psychosis linked condition schizophrenia. Nutt highlights a paradox by noting the fact that although the use of cannabis has rose over the last 30 years schizophrenia and psychosis are both declining. [16] This contributes to the criticism over the way drugs are approached by the UK and EU governments. This has lead to mounting pressure to change policy to one that is evidence based. Hallam and Bewley-Taylor emphasise the need for evidence based policy whilst criticising governments for not answering the questions as to ‘why’ drugs are used and instead, focusing on the methodological question such as ‘where’ and ‘when’ drugs are used. They argue that the drug policy around the globe has remained “evidence-free, being driven instead by a mixture of prejudice, political expediency and historical accident”. [17] Furthermore they argue that the quantitative data used to analyse the drugs problem lacks meaning alone, and must be looked alongside culture and experience issues raised by drug use. The concern was echoed by Crocket in the International Journal on Human Rights. She also voices concerns about the weakness in the link between those who analyse drug policy and those who produce drug policy in the boardroom. Crocket argues that this weakness makes it impossible to make policy decisions based on substance. [18]

A problem that has arose through a lack of evidence based policy is that drugs policy infringed on human rights. Crocket has criticised the lack of expertise within the UN’s Commision on Narcotic Drugs in order to debate the issues surrounding instances of human rights violation. The passing of the UK Human’s Right Act 1998 gives further legal effect in the UK to the rights and freedoms laid down in the European Convention on Human Rights. The website www.drugdriscrimination.org.uk [19] highlights the fact that a blanket prohibition imposed on drugs contravenes numerous articles within the European Convention of Human Rights. It states that the Misuse of Drugs Act 1971 discriminates between drugs that are used by a majority and those used by a minority therefore contravening Article 14 of ECHR. Further articles that are breached include Article 1- the right to peaceful enjoyment of property; the discrimination is of such a degree it constitutes degrading treatment thereby breaching Article 3 – prohibition of degrading treatment and punishment; and it also breaches Articles 5 and 8 the rights to liberty and the right to respect for life.

Article 1 of Protocol 1 provides every person is entitled to peaceful enjoyment of his possessions unless it is contrary to the public interest. It is followed by a statement which does provides that a State can enforce the laws necessary to control the property which conflicts with the general interest. However section 5 of the Misuse of Drugs Act 1971 prohibits the exercise of the property rights of drugs that are not for a medical purpose thus denying the right to peaceful enjoyment of their possessions. Prohibited drugs fall within the scope of Article 1 and the fact that the Government discriminate between drugs; allowing for the use and consumption of alcohol and tobacco despite their recorded dangers can be considered a breach of Article 1 property rights.

Article 5 provides that every person has the right to liberty and security. This article refers to lawful detention, but the argument remains that the arrests are unlawful due to unlawful and discriminatory prohibition. Therefore, the prohibition infringes upon the human right to liberty.

Furthermore Article 8 allows for the respect for a private and family life without interference from a public authority in circumstances of public interest. The Court ruled in the case of, G and E v Norway [20] that a minority group is also entitled to their private life-style under Article 8.A notable criticism is the contradictory government statement in relation to the smoking ban: “We are not banning smoking… Government is determined not to infringe upon people’s rights to make free and informed choices”, but in instances of ‘controlled’ drugs the government is infringing upon rights conferred onto people by the ECHR and therefore does not allow for free choice. [21]

There are many cases that also highlight the issues between drug prohibition and human rights. In R v Quayle and others [22] the defendants argued that their convictions for possessing cannabis were for pain management. Though it must be noted that they were not indulging in the use of cannabis as a means of pain therapy but rather the pain came as a side effect to the withdrawal of cannabis. Therefore they raised the defence of necessity. However in order for a defence of necessity to succeed there must be a sense of urgency of which without taking unlawful action, in this case the consumption of cannabis, serious injury would occur. The parties argued that this interfered with their Article 8 right to privacy. The Court held that the unlawful use of cannabis and thus their convictions did not interfere with the Article 8 right and a defence of duress of circumstances could not legitimise conduct contrary to clear legislative policy.

In the following case of Altham [23] the Courts ruled that the prosecution of the defendant, for the possession of cannabis, which the defendant use to relieve himself of symptoms of pain following a road accident, did not breach his Article 3 right not to be subject to degrading treatment was not breached. The Court of Appeal denied the defence citing Quayle as authority. The defence of duress of circumstances conflicted with the purpose and effect of the Misuse of Drugs Act.

This does raise the question of the EU supremacy and considering the fact that the UK have an opt out protocol within the Charter of the Fundamental Rights, which does not allow for EU courts to find UK courts inconsistent with the Charter. Although the ratification of the Lisbon Treaty by EU member states allows for EU law supremacy over domestic courts it seems that the UK are not subject to this, which subsequently allows a back door for UK courts to turn away from decisions concerning rights within the Charter. [24]

Let me bring to your attention the statement made by Hayry: “If other people tell me what I should choose for my own good, then in what sense are we talking about my good, as opposed to other people’s perceptions and attitudes?” [25] Hayry does well in highlighting the fact that freedom of choice stems from your own ability to choose what you deem is right or wrong irregardless of whether the choice you make conforms to the norms and ideologies of the people and I echo this viewpoint as freedom of choice is entirely autonomous.

The cases discussed above highlight the fact that people must resort to the ECHR in order to try and protect and enforce their right to choice. It is the government that infringes upon these rights, by preventing people from making the choice to resort to the use of cannabis in order to relieve them of pain. However it would seem that on the notion of fear that this would allow for the floodgates to open and give people an excuse to possess and consume cannabis that we must infringe upon people’s human rights. It is the government that takes this dictator like role in this democratic society and infringes upon those human rights. I do not believe that citing public interest as a reason to infringe these rights is plausible especially when the drug policy adopted by the government lacks substance.

However the use of cannabis to relieve pain has not been the only instance in which has lead to the courts. The Rastafarian movement has brought a different aspect of cannabis use into light in their struggle to retain religious freedom. A comment made by the Drugs Equality Alliance stating that the “prohibition of the non-medical use of legal drugs under the Act would conflict with deeply embedded historical tradition” [26] is quite contradicting when put in terms of a different context such as the Rastafarian movement and their cultures.

The case of R v Taylor [27] , the defendant applied for leave to appeal against his conviction for possessing and supplying cannabis. The defence invoked the right to freedom of religion [28] stating that the defendant’s possession and supplying of cannabis was in connection with an act of worship. It was held that despite the supply not being for commercial benefit, the conviction was upheld on the grounds that the UK’s subscription to the Single Convention on Narcotic Drugs 1961 allowed for the infringement of right to religious freedom to guarantee public health and safety.

A later case R v Andrews [29] in which the defendant was prevented from the importation of cannabis was dismissed applying the judgment in Taylor stating that any infringement on the right to freedom of religion under Article 9 could be infringed in the interest of public safety under Article 9(2).

The courts have taken an usual route throughout the case law involving cannabis. In all the cases identified we have seen the courts prohibit the consumption or importation and follow the wish of parliament. The courts cannot go against the true intentions of parliament due to the principle of parliamentary sovereignty. This principle has drawn criticisms in comparison to the US model as it lacks due process which holds the government subservient to the law and allows for the respect of all legal rights and the protection of human rights from being arbitrarily infringed by the government. The courts do however have the options of reading the law in accordance with the Human Rights Act [30] or issuing a Declaration of Incompatibility under s 4 of the Humans Rights Act.

Another comparison between the UK and the US approach is the Religious Freedom Restoration Act 1993. This purpose of this act is to restore the principles that were laid down in the two major cases Sherbert v Verner [31] and Wisconsin v Yoder [32] which dictated that the government cannot pass law that burdened the free exercise of religion unless it restricts a compelling government interest. This justification was restricted by Employment Div v Smith [33] and therefore the US has attempted to resort back to the test of compelling interest as laid down in the earlier cases of Sherbert and Wisconsin. A person who believes that their right to religious freedom has been infringed upon contrary to the Religious Freedom Restoration Act may seek remedy via a judicial proceeding under Article 3 of the US Consititution.

It is not only the US which has a more lax approach than the UK, the Supreme Court in Italy has ruled in a case involving the Rastafarian cannabis use that their use of cannabis may prevail regardless of the anti-drugs provisions which exist in Italian law. [34] The court overturned a decision to impose a £3,000 fine for the possession of 97 grams of cannabis, stating that the insufficient consideration was given to the defendant’s religious belief and liberty.

However courts have not merely allowed for the use of cannabis even for religious purposes without imposing the condition that the drug must be used during some traditional rite. Bakalar and Grinspoon have been very critical of this condition by describing it as though, “mountain climbing were regarded as generally so dangerous & useless that climbers would be fined & jailed unless they could prove they were making a pilgrimage to a holy site on the peak certified by an established church”. [35]

It has also attracted criticism from Weil who describes how the prevention of the use of drugs, limits the different states of the mind that people can exhibit which can generally be achieved through drugs. Therefore the laws limit research on the mind and any future discoveries that may be made through various mind-body states. [36]

Overall legislation must concern itself with the principle of morality. In order for legislation to prevail it must define the actions that are of the greatest benefit to the greatest number of people, and must restrict that which is harmful to the greatest number of people. It is there to guide people and not to define people. It must weigh and balance the aspects of harm reduction and punitive prohibition. It is therefore fitting to say that if legislation restricts that which does not harm but restricts it on the concept that it may harm, then the legislator has transgressed the grounds by which he can legislate as he is no longer guiding but commanding. A major flaw in the debate that is drug prohibition is evident that there is not sufficient data to conclude whether drug prohibition is for the greater good. Hallam and Bewley Taylor put forward two means of research to supplement quantitative data which are ethnographic and socio linguistic approaches. The ethnographic approach looks at the pattern of life and the culture of people. The second approach is the socio linguistic approach scrutinises the social processes and the language used to give structure human concepts of drugs and the conduct surrounded by the drug phenomenon. [37] Through adopting these forms of methodologies, it will help for a better view and understanding of drug culture and create legislation that will no longer infringe upon the rights to freedom of choice, decision and religion retaining a person’s cognitive liberty. Global drug policy has become entrenched with an agenda that believes it must tackle drugs harms to the point where it becomes extinct. Global drug policy maintains that the only way this can be achieved is through prohibition, however experience and research argue that the most effective means is not prohibition but regulation. [38] Therefore a change in the prohibitionist paradigm is required for it to engage with human rights beyond mere rhetoric. [39]

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