Cannabis reclassification – impact assessment.

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UPDATE May31st 2009

UKCIA was informed that the Home Office document discussed here – the Cannabis Reclassification Impact Assessment  – seemed to be offline. It appears the Home Office has changed the URL of the document, which can now be seen here.

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From Principles of Managing Risks to the Public, a document issued by the cabinet office and HM Treasury:

Government will be open and transparent about its understanding of the nature of risks to the public and about the process it is following in handling them
* Government will seek wide involvement of those concerned in the decision process
* Government will act proportionately and consistently in dealing with risks to the public
* Government will seek to base decisions on all relevant evidence
* Government will seek to allocate responsibility for managing risks to those best placed to control them

Fine words, and indeed we should expect nothing less, perhaps especially when it comes to matters relating to the application of the criminal law which is done under the guise of managing risks. It’s clear from the government’s own assessment that the reclassification of cannabis to class B falls well short of these standards and just about all the standards listed above are breached.

Ineed it might come as a surprise to learn that the government has even done an “Impact assessment” on the proposed reclassification of cannabis. They published it – in almost total secrecy – a few weeks ago on the Home Office website and you can read it for yourselves here. To claim it as one of the worst government documents ever produced to justify a policy change is probably not an overstatement, it’s appallingly bad in many respects, some of which this blog will outline.

Despite it’s gloss, the impact assessment manages to point out that the reclassification of cannabis to class B will have the following consequences:

* It will cost around £50M in increased court and other costs. This is based on an assumption that the deterrent effect of the increased penalties will produce a significant reduction in the use of cannabis, an assumption for which there is no evidence. This figure does not include any extra cost for the prison service and so can be assumed to be a minimum estimate.

* Black and Ethnic minority communities will be disproportionally affected and this will impact on police community relations.

* The new regime will make no difference to the way the law is applied to children and young teenagers which is the main age group the government claims to be making the change to protect. The position will remain unchanged for under 18s who will continue to be dealt with under the Crime and Disorder Act 1998

* The change will make no difference to the way large scale dealing or cannabis production cases are treated by the law, which is the other main justification for making the change (ie to crack down on widespread cannabis farms).

* The increased focus on cannabis will mean a reduction in services for heroin and other drug users.

* It is hoped the reclassification will reduce antisocial behaviour caused by the use of cannabis, although there is no evidence to suggest it will.

* The decision  follows the advice from the ACMD not to reclassify and a public consultation which also came out against the move. So having consulted, the government ignored the findings.

* The move is being made to “satisfy public perception” rather than to address any clearly identified problem. By this they probably mean “placate the tabloid press”.

* Mention is made of the lack of real data at various points in the report.

Interestingly, there was no mention of this impact assessment in the recent House Of Lords debate  and it’s unknown if the members of that house were even aware of it. Had they been it’s not unreasonable to speculate that the outcome of the final vote may well have been different.

Also it’s worth noting that no consideration is given to harm caused by false raids caused by “pro-active” policing, as in the case last week of raid on a couple of pensioners in Bristol (here) or any one of a number of similar “mistakes” in recent times.

No acknowledgment is made of the role of prohibition in creating many of the problems surrounding cannabis use and its trade and needless to say no comparison with a legalised and regulated regime is made. “Stronger” prohibition is given as the only option for change.

All in all, this impact assessment is a pretty awful document, especially bearing in mid it relates to a change in the criminal law and will form the basis for damaging careers and other prospects for many people. If this is the way our laws are to be made, we should be very angry.

What follows are extracts of the report which highlight the points made above:

Read the whole report here

EXPLANATORY MEMORANDUM TO THE MISUSE OF DRUGS ACT 1971 (AMENDMENT) ORDER 2008
2008 No. [DRAFT]

Page 1:

Establishes the mostly minor change C to B will make in terms of penalties, which all relate to small scale offences and notes that

4.6 The penalties for other offences relating to cannabis are unaffected, including the maximum penalty on indictment for supplying or producing cannabis of 14 years’ imprisonment and/or an unlimited fine.

Thus establishing that the change will have no impact on the major dealing outfits running the large scale cannabis plantations.

Page 2

The three month consultation concerning the government’s drugs strategy (Drugs: Our Community, Your Say) contained questions about the legal status of cannabis, the report notes:

7.2 On balance, consultation respondents were more likely to state that they were against a reclassification of cannabis. Those not in favour felt that it should be either left as a Class C drug or that if a legislative change were to take place, it should indeed be in the other direction, and that cannabis should be legalised.

Also:

7.3 the ACMD reported in April 2008 that, based on its harmfulness to individuals and society, the majority of its members considered that cannabis should remain a Class C drug.

Having consulted both the public and the ACMD and got the wrong answer, the government therefore justifies the reclassifcation thus on

page 3:

7.6 In reaching its decision the Government has also taken into account wider issues such as
public perceptions and the needs and consequences for policing priorities. Reclassifying cannabis to Class B will help drive the enforcement priorities to reverse the massive growth in commercial cultivation and will support the comprehensive package of measures used to tackle cannabis use as part of the Government’s national drug strategy”

As noted above, it will have no impact on the cannabis farms or more serious dealing offences. What do they mean by ” public perceptions”, is UK criminal law really being formed to placate the tabloid press? Since when has the use of criminal law been about doing that?

Rationale for intervention

page 6

Makes the claim of cannabis use:

There is clear evidence that it can produce both immediate and longer-term harms to mental health.

There is no such “clear evidence”, that is simply wrong. There may be areas of concern with respect to certain groups of people – children and people with existing conditions in particular – but that is not the same thing as this claim implies at all. Indeed it goes on to state:

“The latest advice from the Advisory Council on the Misuse of Drugs (Cannabis: Classification and Public Health) is that, whilst cannabis most likely plays a modest role in the development of psychotic illness in the general population, there is a significant possibility that the greater use of higher than average potency cannabis may increase the harmfulness to mental health, more so if young people start to use at an early age or ‘binge smoke’. “

So the clear evidence is that the role cannabis plays in terms of mental health problems is “probably modest” and there is a “significant possibility” that heavy use of very strong cannabis might have some negative effects. That is a long way from “clear evidence”. However it is clearly unwise for young people – children and young teenagers – to use cannabis heavily, but as we will see, the proposed measures do not alter the way the law applies to this group of the population.

“Availability and use of the more dangerous higher strengths of cannabis has increased

There is actually no evidence that stronger cannabis is actually more dangerous (although there are plenty of tabloid claims to that effect), nor indeed any evidence that users of these stronger strains are actually consuming any more of the active chemicals.

The use and availability of higher than average potency cannabis, commonly known as ‘skunk’, which has higher levels of the main psychoactive ingredient, tetrahydrocannabinol (THC), has increased in recent years.

Honestly, you couldn’t make this up! There is no evidence to suggest that cannabis today is “higher than average potency cannabis” – what does that mean anyway? It may be that the overall product available these days is of a higher quality, but there was always very strong cannabis and the data concerning strengths in days gone by is best described as “weak”.

The above is a long way from being a strictly factual account of the real situation as a document like this should demand.

The Home Office’s 2008 Cannabis Potency Study reports that herbal cannabis was estimated to represent around 30 per cent of police seizures in 2002,

Page 7

but 55 per cent in 2004/05. It further reports that ‘skunk’ now dominates the UK cannabis market, accounting for approximately 80 per cent of street seized cannabis, with a potency of around 16 per cent, compared with an historic norm of five per cent for cannabis resin. This is an important indication that total and average consumption of THC might actually be increasing over time, despite a declining population of users.”

There is so much wrong with that paragraph that there really isn’t time nor space to fully refute the claims. However, the ACMD accept that their data is weak and they accept that cannabis users probably intake less of the stronger varieties. Thus if the supply side really is stronger overall than was common 20 – 30 years ago that, in itself, is no proof that people are consuming more.

page8

Cannabis enforcement response regime

The enforcement regime should faciliate an enforcement response commenserate with the legal
classification of cannabis. It should tackle repeat offenders through a consistent and robust escalation process with the intended effect of deterring use.”

This is  perhaps the most deceptive part of the proposals: The government’s belief against all the evidence that stronger enforcement acts as a deterrent to drug use. Rather than re-tread well covered arguments it’s all rather well summed up over on the Transform blog from October 2006 – Classification and Deterrence – where’s the evidence? – in which the government justifies it’s approach as being a “Fundamental belief”. Perhaps the most damming examination of this delusional mindset as mentioned in the Transform blog was provided by the report “Drug Classification – Making a Hash of it” from the Science and Technology committee. Again, the government is seen to be ignoring expert advice.

It should support enforcement action against dealers and tackle commercial production of cannabis, with the intended effect of reducing the availability of cannabis, particularly that of higher strength, and disrupting organised crime and human trafficking.

Which is not relevant to the reclassification issue – as was stated at the very start the change in classification will not change the law as it applies to these issues.

The cannabis enforcement response regime

Also central to the  assumptions made with respect to the new regime is the use of PND’s:

“In doing so, the introduction of Penalty Notices for Disorder (PNDs) as part of the escalation
process for simple posession of cannabis for adults has been identified as part of the ‘Option for
Change.’ The extension of the PND scheme is subject to public consultation by the Ministry of
Justice, and separate legislative process and Parliamentary agreement. This impact assessment
will not prejudice the outcome of the public consultation process. However, to ensure that it sets
out the full proposed enforcement response, it has been prepared on the basis that PNDs will be
available. Equally, the MOJ’s impact assessment will fully reflect the proposed role that PNDs
would play in the escalation process.”

So the PND system of fines has yet to be agreed for cannabis , yet has already been announced as the way cannabis will be policed.

It should be noted that this would have been possible had cannabis been left in class C.

“Cannabis use in public is far more common than other illicit drugs, and can be perceived to be linked with anti-social behaviour and public disorder, which PNDs are specifically designed to address.”

Note “perceived” to be linked to anti social behaviour – the crimial law is being applied in order to address perceptions, not actual situations.

P10:

Again, the assumption of a deterrent affect is central to the way they think things will develop, as it is again:

“Under the policy option, recording is assumed to be more complete, so that escalation happens relatively more quickly. Counteracting this, quicker and more robust escalation is assumed to result in a higher probability that an offender will desist.”

page 13

“In total, enforcement against cannabis possession is estimated to generate a potential liability of just under £140million over the eight years considered in this appraisal, a rise of 55 per cent over the Do Nothing scenario”.

which assumes an increased deterrent affect. Note this is only for possession offences, not dealing etc. If there is no deterrent effect, the cost will be much higher of course. This is where the £50M bill comes from.

P15

“It is also possible that reductions in cannabis use might be associated with reductions in crime
and anti-social behaviour. Although there is no clear casual link between cannabis use and
offending, there is evidence of an overlap.”

So there is no evidence that reducing cannabis use will reduce crime, but it might do.

Page 23 / 24

Equality Impact Assessment

Black people:

The BCS has shown that use of cannabis is most prevalent amongst those from a mixed race background (25% had used it in the last year). This level of use was twice as high as those with a white or black ethnic background (both 11%). However, within the black ethnic group cannabis use in the last year was found to be significantly higher amongst those in the black Caribbean group (17%) than those with in the black African group (3%) …

… black and minority ethnic groups were over-represented in the arrest and street warning statistics for cannabis possession…

… If the public view the approach of their local police as inconsistent, confidence in low-level police work will be affected and the ability of patrol officers to police by consent will be weakened …

… Because certain ethnic groups, notably black Caribbean and black other, are overrepresented among those caught in possession of cannabis, reclassifying cannabis and policy change in terms of enforcement, is likely to have a disproportionate effect on those groups …

… A potential negative consequence is damage to communication between the police and black males – notably black Caribbean and black other.

The change will have negative consequences for race relations and will make the policing of some areas more difficult. This is no surprise as it was at the heart of the Lambeth Experiment a few years ago when it was acknowledged that cannabis enforcement created bad feeling. This has not changed.

(p24)

Interestingly when thy looked at cannabis use and religion they come to this conclusion:

Religion and Belief – None at present. To our knowledge no data is available on religion and belief and any associated use of cannabis, including Rastafarianism and the use of cannabis for purported religious/ spiritual purposes.

Really? They have no data on the use of cannabis amongst Rastafarians?

Medical users are similarly dismissed:

Medical users: Cannabis is an illicit, controlled drug and its reclassification should have no bearing on its alleged therapeutic use, because supply and possession of the drug for such purposes remain unlawful and demand is led by health considerations, not classification or enforcement.

Does that mean they accept medical users will not be deterred by the new regime?

There is a lack of data in relation to users of cannabis for therapeutic purposes. However, prosecution of such users is rare and courts take full account of all the circumstances in determining any sentence. Also, it is important to note that the policy implications associated with the legislative change are for repeat offenders that come to the attention of the police. The majority of those using cannabis for alleged therapeutic purposes will be those who use in their own home and unlikely to come to the attention of enforcement agencies/ police. There is therefore nothing to suggest a risk that users of cannabis for these purposes will be disproportionally targeted as an impact of the legislative and enforcement policy changes.

This is just strange – even stranger than some of the other points made in this report. Does this mean that people who use cannabis quietly at home at at no risk from the law?

Note also the use of “alleged” medical uses.

P40

Adverse Impacts:

Some of the diversity agenda relating to drug strategy is driven by the difference between
use of cannabis and the focus of provision of treatment services to the highest harm causing users and those who put others at greatest risk. This may mean a reduced focus on some groups in areas where the provision is primarily or exclusively focussed on those who use the highest harm causing drugs (crack or heroin) or inject.

The increased focus on cannabis will mean a reduction in drug services elsewhere.

This report should be exposed for the sham that it is – and with it the whole reclassification sham.

UKCIA would like to express special thanks to Transform and UK420 for help writing this blog.