law and rights

Ian Robinson, former deputy director of Release, surveys the complex network of laws controlling drugs in the UK and explains your rights if you fall foul of them

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The Misuse of Drugs Act, the main piece of legislation covering non-medical drugs, dates back to 1971. Many people – including many in the 'establishment' – believe it is long overdue for radical reform. (For more about the pros and cons of drug-law reform, see the reform debate.)

The Home Office does not agree, though it has moved cannabis from Class B to Class C (see drug classes below). It also says that there will be more emphasis on treatment and harm minimisation (measures that focus on reducing the harm done to people if they do use drugs). However, the essential principle remains that ' all controlled drugs are harmful and no one should take them', and for the foreseeable future, efforts to curb drug use and supply through the criminal law, and in many cases imprisonment, will continue.

In addition to the Misuse of Drugs Act, the relevant laws include the Misuse of Drugs Regulations (1985), the Intoxicating Substances (Supply) Act (1985), and the Medicines Act (1968), which governs the manufacture and supply of medicines. Other legislation, such as the Criminal Justice and Public Order Act, Roads Traffic Act (1988), the Drug Trafficking Offences Act (1986), the Crime and Disorder Act (1998) and the licensing laws all have an impact on drugs offences. It's good for the lawyers, at least.

drug classes

The Misuse of Drugs Act divides drugs into three classes – A, B and C – according to how damaging they are deemed to be. These classes determine the maximum criminal penalties.

Class A includes opium, morphine, heroin, methadone, LSD, ecstasy, magic mushrooms (whether fresh or prepared), cocaine and crack cocaine. Class B drugs that are prepared for injection count as Class A.

Maximum penalties:

• for possession – seven years in prison and/or a fine

• for trafficking/supply – life in prison and/or an unlimited fine. 'Trafficking' includes supply, intent to supply, and production, as well as import and export.

Class B includes amphetamines, barbiturates and weaker opiates such as codeine.

Maximum penalties:

• for possession – five years in prison and/or a fine

• for trafficking/supply – 14 years in prison and/or a fine. Growing cannabis counts as production – a trafficking/supply offence.

Class C includes GHB, benzodiazepines such as temazepam, flunitrazepam (Rohypnol) and diazepam (Valium), ketamine and, since January 2004, cannabis.

Maximum penalties:

• for possession – possession of cannabis is still illegal and can attract a maximum penalty of two years in prison or a fine. However, guidelines issued to police say that they should not normally arrest someone for possession of a small amount of cannabis unless that person is flouting the law (that is, smoking in public), or they are under 17, or they are caught near a school, or they are caught repeatedly. The penalty for possession of other Class C drugs (including carrying benzodiazepine drugs without a prescription) is 2 years and/or a fine

• for trafficking/supply – 14 years in prison and/or a fine.

Bear in mind that maximum sentences are very rarely given and usually only to repeat offenders involved in serious offences.

possession

You can be convicted of possession if:

• the substance is a controlled drug
• the substance is in your possession or under your control in some way
• you are aware of the existence of the drug.

So you don't actually have to be caught with a drug on you to be convicted of possession – if it's found in your home or in a suitcase you've deposited in a left-luggage office, for example, you're considered to be in control of it. But the prosecution must prove that you knew about the drug. So if someone has planted a drug on you or left drugs in your home and you don't know about it, in theory you can't be convicted.

If you admit to having possessed drugs in the past, you can be charged with past possession. For example, in 1986 Boy George was charged and convicted of possessing heroin after admitting past use following the death of Michael Rudetski from a heroin overdose at his home.

Also, if you buy what you believe to be a controlled drug, you could be convicted of attempted possession even if it turns out to be dried basil or chalk dust.

trafficking/supply

To convict you of a 'trafficking' offence, which includes dealing or supply, the prosecution only needs to prove that you passed or intended to pass a controlled drug to someone else. They don't need to show that you have make a profit or received any other benefit, and the law makes no formal distinction between a professional dealer and someone who shares their drugs with friends. In theory, you could be charged with supply for passing a spliff to someone.

Also, if a group of friends clubs together, but one person actually buys and distributes the drugs to the other members of the group – or intends to – then that person can be charged with supply or intent to supply. Unaware of this, some people inadvertently admit intent to supply when questioned by police, saying: 'I was just carrying them for friends.'

The amount of a drug seized and the possession of drug paraphernalia such as scales can be used as evidence of intent to supply.

prosecution and sentencing

What actually happens if you get caught with a controlled drug varies according to the quantity of the drug, the attitude of the local police and courts, and whether – and how many times – you've been caught before. The following are very broad guidelines.

If you're caught for the first time in possession of a small amount of any drug, the police may do nothing, give you a warning, give you a formal caution (which means you'll have a criminal record) or prosecute you.

You're more likely to be prosecuted if you're caught with a Class A drug, but if you're prosecuted for a first possession offence, even for a Class A drug, you'll probably only be fined. However, prison sentences are sometimes given for first offences of possession.

Supply and possession with intent to supply are taken much more seriously. With Class A drugs, a successful prosecution will often lead to a prison sentence.

allowing drugs in your home

Section 8 of the Misuse of Drugs Act makes it an offence to allow certain drug-related activities in your home. If you are 'the occupier or concerned in the management of any premises', you're committing an offence if you 'knowingly permit or suffer' any of the following on those premises:

• the smoking of cannabis, cannabis resin or prepared opium
• the production or attempted production of a controlled drug (this includes growing cannabis and drying/processing magic mushrooms)
• the supply, attempted supply, or offer of supply of a controlled drug (see trafficking/supply for more about what constitutes supply).

The definition of someone who is 'concerned in the management' may include any worker who has the authority to admit someone to or exclude someone from the premises, or who has responsibility for enforcing rules. 'Knowingly' may mean that you have actual knowledge that the activity is taking place – that is, you have seen it yourself or have been reliably informed of it – but it might also just mean that there were circumstances that would make what was going on obvious to a 'reasonable' person. 'Permit or suffer' means that you allowed the activity to take place – either by taking no action, or by taking ineffective action and not taking further steps that were 'reasonable and readily available'. But remember that you shouldn't take possession of any controlled drug unless you intend promptly to destroy it or pass it on to the police.

Section 8 does not require you to prevent the possession (as opposed to use) of controlled drugs on the premises.

There's more about Section 8 and what organisations should do about it on the Release website (see help and info).

This section of the Misuse Of Drugs Act may seem particularly strange and outdated, but the failure of the appeal of the 'Cambridge Two' provides ample evidence that it should be taken seriously. Ruth Wyner and John Brock, the director and manager of a centre for homeless people in Cambridge, were sent to prison for not – in the court's view – having taken adequate steps to prevent dealing on the premises.

drugs and driving

It's well known that you're committing an offence if you drive with too much alcohol in your system – defined in the UK as more than 80mg of alcohol per 100ml of blood. (It's also, incidentally, an offence to be drunk in a public place.)

Similarly, it's an offence to drive or be in charge of a motor vehicle while unfit through other drugs. If you're found guilty of this offence, there's an obligatory 12-month disqualification and a fine. In cases involving accidents or dangerous driving, longer disqualifications, stiffer fines and imprisonment can apply.

A crackdown on driving under the influence of drugs was announced in March 2001. Police have been given new powers to make drivers they suspect have taken drugs perform a series of co-ordination tests, such as walking in a straight line.

dealing with the police

The police have the power to stop and search you in a public place, if they have a reasonable suspicion that you are carrying drugs, stolen property or a weapon. The police officer should explain the reasons for the search and make every effort to reduce embarrassment to you. Only your outer clothes should be searched in public and at the end of the search a written record should be made available to you.

If you're questioned by the police, it's a good idea to be polite. Getting angry, being rude or trying to be clever will only make things worse. For their part, the police should treat you with respect.

If you're arrested, you don't have to answer questions. There may be good reasons why you don't want to say anything to the police, and you shouldn't be intimidated into doing so. However, if you're later charged with a crime and you haven't mentioned something that you later rely on in court, this may be taken into account when deciding if you are guilty.

Also, if you give an innocent explanation for what you've done, there's a chance the police may leave you alone.

At any rate, it's unwise to talk to the police about what happened until you've seen a solicitor in private. If the police are about to arrest you or have already arrested you, there is no such thing as a 'friendly chat' to sort things out. Anything you say can be used later against you. So think before you talk.

Once you've been arrested, you have the right to talk in private to your chosen solicitor, or to the duty solicitor – there's always an independent duty solicitor on call. This service is free.

In a police station, you also have the right:

• to know why you have been arrested
• to speak to the custody officer (the officer with a duty to look after your welfare)
• to ask the police to let a friend or relative know that you've been arrested (not to make a phone call yourself)
• to consult and have explained the Codes of Practice that list all your other rights, such as the right to medical treatment, adequate food, drink and exercise.

If you're under 17, the police should not question you in the absence of an adult of your choice (see the feature under 17?).

The police can hold you for a maximum of 24 hours, or 36 hours for a serious offence. After that they must either charge you, let you go, or apply to a court to hold you for longer.

help and info

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organisations

FRANK
Helpline: 0800 77 66 00 (24 hours)
Textphone: 0800 917 8765
E-mail: frank@talktofrank.com
Website: www.talktofrank.com
Provides free confidential drugs information and advice 24 hours a day. All calls are confidential. Use the website's search facility to get the contact details of organisations offering practical help and support in your area.

Release
388 Old Street
London EC1V 9LT
Legal Helpline: 0845 4500 215 (Mon-Fri 10am-5.30pm)
Heroin Helpline: 0845 4500 215 (Mon-Fri 10am-5.30pm)
E-mail: ask@release.org.uk
Website: www.release.org.uk
Offers confidential and professional legal, health and welfare advice for those who come into contact with drugs. Can refer you to local drug agencies and specialist lawyers. The website features drug facts, information on the law, and advice for dealing with the police.

Transform – Drug Policy Foundation
Easton Business Centre
Felix Road
Easton
Bristol BS5 0HE
Tel: 0117 941 5810
E-mail: info@tdpf.org.uk
Website: www.tdpf.org.uk
UK organisation campaigning for a just and effective drug policy. Promotes the minimisation of drug-related harm to individuals and communities and believes that this is best achieved by legalising drugs.

websites

Community Legal Service Direct (CLS)
www.clsdirect.org.uk
Run by the Legal Services Commission (which has replaced the Legal Aid Board). Contains legal information and advice, and has a search facility for details of solicitors and advice agencies in England and Wales.

The Law Centres Federation
www.lawcentres.org.uk
Law Centres provide a free and independent professional legal service. Areas of work vary but may include juvenile crime and children's rights. Website has a search facility for local Law Centres throughout the UK.

Citizens Advice Bureau
www.citizensadvice.org.uk
Offers free, confidential and independent advice on issues including legal matters, benefits, housing, employment, and immigration. Website contains information about the Citizen's Advice Bureau, social policies, and details of local CABs throughout the UK.

Youth Information – getting legal help
www.youthinformation.com/infopage.asp?snID=259
Describes the options available for young people needing assistance with legal matters.

reading

Report on drugs policy by the Home Affairs Select Committee (May 2002)
Online version of the Committee's report on drugs policy.
www.publications.parliament.uk/ ..

The Government's Drugs Policy: Is It Working?
The Government's reply to the report from the Home Affairs Committee Session 2001-2002
www.official-documents.co.uk/ ..

(revised June 2004, resources updated February 2005)