UKCIA submitted the following comments to the Sentencing Council proposals for drug offences guidelines (document here)
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I am the editor / webmaster of https://www.ukcia.org
, a cannabis law reform website dedicated to factual information about cannabis, the aim of UKCIA is to challenge the legitimacy of prohibition as a policy through the dissemination of knowledge. However I accept this consultation is about the law as it stands and therefore my comments relate to you proposals and not to what is, in my opinion, the ideal solution of law reform.
Q1: Do you agree with the Council’s approach of separating Classes B and C?
Not really, because the classifications under the Misuse of Drugs Act (MoDA) are not based on any real evidence of harm or on any kind of solid science. The classification of cannabis as a class B drug was made against scientific advice for purely political reasons – this is a matter of record. If based on evidence of harm, cannabis should be treated as a class C, it is not the purpose of the law to send political messages.
It is also recognised within the government’s interpretation of the MoDA that a distinction is made for alcohol and tobacco based not on their harm to society or the user, but on their high degree of social acceptance. This principle should be extended to cannabis for the purposes of sentencing, especially for personal/social/spiritual/medical use.
Q2: Do you agree with these aggravating and mitigating factors? If not, please specify which you would add or remove and why.
Medical use should always be a mitigating factor – especially (but not confined to) sufferers of MS. This should include not simply possession, but also production for and supply to an ill person. It should be noted that SATIVEX, the approved cannabis spray is pharmacologically identical to cannabis, the only difference being the method of delivery. The use of “raw” cannabis is accepted and approved in many states, including the USA and Europe.
Note patients in possession of cannabis issued under prescription in EU countries have the right to bring three months supply into the country and to use it here, they are therefore protected against prosecution under the MoDA in any case.
Non-commercial small scale cultivation for personal use should also be a mitigating factor. If there is no charge of commercial supply or supply to / exploitation of minors then it’s hard to see how there is a victim.
For growing convictions, the maturity of the plants is an important consideration. If grown from seeds 50% of the plants will be male on average and therefore useless; a proportion may fail.
Prison is often used as a dumping ground for people with serious mental illness, this should stop. Anyone with a drug misuse problem should be diverted into treatment rather than punished.
Q3: Do you agree with the different approaches taken for determining the seriousness of the offence for each of the drug guidelines?
Q4: Do you agree that someone possession any quantity of drug in a prison should receive a more severe sentence?
No, at least, not always. Addiction is not something that can realistically be punished, even if that addiction is “only” psychological dependence which can be hard to break. Drug use is often linked with mental illness and ill people should not be in prison, but as things stand they often are.
Q5: Do you agree with the quantities that are set out here?
Broadly, yes, with the exception that medical use or supply to a medical user be a mitigating factor. It should be born in mind that a personal grower of recreational cannabis may also provide a medical user. If that is the case then the “allowance” for such a recreational user should reflect the extra needed to supply the medical user. The defining issue should be whether there is commercial supply or supply to/exploitation of minors or other related crime such as stealing electricity.
The weight of “home grown” should always be the dry weight of the flowering heads, not including stalks or shade leaves which have no value.
Q6: Do you think that the Council is taking the right approach in terms of purity?
Yes. However, why should it ever be more of an offence to supply a pure, unadulterated product than one containing unknown contaminates? Should the extra offence – if any – not relate to cutting with dangerous substances or knowingly providing an impure substance?
Q7: Should ‘medical evidence that a drug is used to help with a medical condition’ be included as a mitigating factor for possession offences?
Always. There is much evidence relating to the medical use of cannabis which the government chooses to ignore for political, not factual, reasons. Many ill people are suffering as a result, this is obscene.
Q8: Do you agree with these sentencing ranges for the types of offenders set out here?
If we are to have penalties then yes, this is better than the postcode lottery we have now.
Cultivation of cannabis would seem to fall into four categories; CLEAR (http://www.clear-uk.org
) identifies four categories:
A. People growing cannabis for their own medicinal use.
B. People growing cannabis for their own non-medicinal use
C. People growing cannabis for commercial purposes
D. People growing cannabis under pressure, intimidation, coercion or duress or who have been trafficked for the purpose.
I would endorse their suggestion that A, B, and D should not attract custodial sentences for the act of cultivation alone.
Personal use and small scale hobby cultivation alone should never attract a custodial sentence.
Q9: Are there any other ways in which you think the Council can take into account the impact on victims?
Providing there is no supply to or exploitation of minors (or any other related offence such as theft of electricity) then it’s hard to identify a victim. If there is no third party victim then the offence should be considered the lowest priority.
Q10: Is there any other way in which equality and diversity should be considered as part of the proposals?
The use of cannabis is closely related to culture and always has been. Over the years this has moved from ethic minorities who have a long tradition of cannabis use into mainstream British culture. Prohibition therefore targets people on the basis of their cultural affiliations and prosecution has a negative effect on diversity and equality – especially of opportunity later in life for a young person.
Such discrimination is particularly unjust in the case of medicinal users or those who use cannabis as part of their religion, eg, Rastafarians.
The law should never present a greater danger to the individual that the offence is capable of doing, yet this is often the case with cannabis cases at present.
Q11: Do you agree with the proposed offence ranges, category ranges and starting points for all the offences
Ideally, no, but given the present regime they are better than the postcode lottery we have at present.
However, the medial use issue is serious and it can never be right to deny a person access to a natural herb which they find brings relief, which is demonstrably the case with cannabis.
The law should distinguish between the commercial supply and personal use of cannabis, accepting such use is embedded in UK culture.
Are there any other points that you would like to make?
17th June 2011