Reservations
to Paragraphs 85-90
1.
I agree in the main with the first 84 paragraphs of this report. In particular
I agree with the last part of paragraph 81 that the present penalties are altogether
too high and I would add that the sentences being given at present are too high.
Paragraph 80 indicates- that there has been greater emphasis on fines and imprisonment
for the possession of cannabis, but less use of probation; average fines for possessing
cannabis have been almost as high as for dangerous drugs such as heroin. The same
paragraph shows that in 1967 about a quarter of all cannabis offenders were sent
to prison and 17 % of first offenders were imprisoned. A further study of Table
C on page 26 shows that even those convicted of posses-sing small amounts of cannabis
run the risk of being dealt with quite severely. Of the 2,419 people who were
convicted of possessing less than 30 grams of cannabis, 373 (15%) were imprisoned.
This table also shows that 1,857 persons without previous convictions for any
type of offence were convicted of possessing less than 30 grams of cannabis; 237
(I 3 %) of these first offenders were sent to prison, 119 of them were aged 25
or less.
2.
In paragraphs 86, 87 and 88 my colleagues seem to be putting all their trust in
the behaviour of the police and the discretion of the judiciary, but the information
given in the previous paragraph of this reservation does not inspire trust. It
will still be possible to give prison sentences to offenders possessing small
amounts of cannabis when they are what my colleagues call "difficult individual
cases", but they seem to hope that magistrates will start to give less severe
sentences after reading this report. Government reports may be the prelude to
legal reform, but they are not a particularly good way of enlightening the judiciary
3.
There is an increasing tendency in modern criminology to limit the sentencing
powers of the judiciary. Indeed section 39 of the Criminal Justice Act 1967 (which
provides for suspended sentences) removes considerable sentencing powers from
the Courts (particularly magistrates) although this Act is quoted by my colleagues
(paragraph 88) as a reason for retaining heavier penalties.
4
Nothing emphasizes the generation gap more than a drug offence. The drug user
and the magistrate are basically out of sympathy. The cannabis-user is partaking
in a form of enjoyment that is how he looks at it which was unknown to the magistrate
when he was young. In addition to this the clothes, hair style and attitudes of
many young drug-takers are unlikely to please the magistrate. Even if we adults
feel inclined to put our trust in the magistrate's ability to understand these
differences in the generations, it is quite certain that most of the young people
of this country do not believe this wide gap can be bridged except by a very few.
Why should they have to take their chance whether they get an informed and understanding
magistrate or not? The administration of the law should not be a matter of luck.
5.
Like my colleagues I would like to distinguish more clearly between possession
intended for use and possession intended for supply. Unlike them I think this
distinction should be written into the law. I think it would be preferable to
base
the distinction on the quantity found in possession. Accordingly I suggest that:
1) Illicit possession
of up to 30 grams, leaves or resin, should be a summary offence only, punishable
on a first or subsequent conviction by a maximum fine of œ50.
2) Illicit possession
of any amount larger than 30 grams should be punishable
(a) on summary conviction
by a fine not exceeding f100 or imprisonment for a term not exceeding four months;
(b) on
conviction or indictment a fine or imprisonment for a term not exceeding two years
or both.
The
existing provision under the Dangerous Drugs Act 1965. whereby proceedings on
indictment can only be instituted by or with the consent of thc Attorney General
or the Director of Public Prosecutions, should be retained.
6.
1 am not impressed by my colleagues' arguments (paragraph 85) against sentences
based on the amount of cannabis found in a person's possession:
(a) It is suggested that
it would be tiresome for the police to determine the exact amount of cannabis
found in possession. In fact, however, the police already measure the amounts
of cannabis seized and the Courts are influenced by the amount in determining
sentence. Therefore it would seem to be imperative that the police should always
be exact about the quantity found in possession and defence lawyers should have
the right to demand adequate safeguards. For the same reason it is essential to
establish equivalent amounts for synthetic cannabinols when these be-come widely
available. If the sentencing policy suggested in the previous paragraph were to
be adopted, there would be less work for the police for only a small number of
cases (11% in 196n will be found in possession of more than 30 grams.
(b) I
agree that the introduction of a quantitative formula might have an effect on
trafficking: it will tend to make it more difficult. In such circumstances the
cannabis users would wish to buy from the supplier in small quantities. In order
to sell the same amount the supplier would have to make more sales; consequently
he would be more often at risk and therefore more likely to be caught by the police.
We have learned that a substantial part of the smuggling of cannabis is in small
amounts (paragraph 3D and is not exploited to any significant extent by professional
criminals (paragraph 38). When large illegal imports evade the Customs, they have
to be broken up and sold in small amounts. If a quantitative formula were to be
introduced, the cannabis would have to be distributed in even smaller amounts:
it would make dealing in cannabis, not more, but less attractive to the so-called
"professional criminals". The profit to be made on 30 grams of cannabis
is not enough to attract big time crooks.
7.
Of the 2,419 persons convicted of possessing less than 30 grams of cannabis in
1967, only 191 (under 8 /0) had previous convictions for drug offences. This may
suggest that most first offenders give up cannabis after a conviction for possession:
a more probable explanation is that the convictions only reflect a very small
proportion of the total number of cannabis users and detection is mostly a matter
of chance.
8.
I agree with the views expressed in paragraph 90. If the objective is to bring
about a situation in which it is extremely unlikely that anyone will go to prison
for an offence involving possession for personal use, then I think my suggestions
are more likely to bring this about than the views expressed in this report, which
may be forgotten by the time the recommendations become Acts of Parliament. I
also agree with the recommendation (in paragraph 90) that the situation should
be reviewed over the next three years. If some evidence is produced which shows
that cannabis is socially harmful or disruptive, then the penalties can be in-creased.
A recent example (section 7 of the Dangerous Drugs Act 1967 in which penalties
were increased from two to ten years) suggests that time can usually be found
for a Bill to increase penalties, but as a matter of practical politics any reform
of the law which involves reducing penalties takes longer.
RESERVATIONS
TO PARAGRAPH 95
9.
I agree with paragraph 94 in which it is recommended that section 5 of the Dangerous
Drugs Act 1965 should be repealed in relation to premises to which the public
has no access. I agree that it should still be an offence for occupiers of premises
open to the public to "permit" premises to be used for smoking or dealing
in cannabis, and for managers to allow public premises to be used for these purposes.
I suggest that knowledge should be an ingredient in the offence and, unlike my
colleagues, 1 recommend that the onus should be on the prosecution to show that
the occupiers or managers were aware that cannabis was being used or sold on these
public premises.
RESERVATIONS
TO PARAGRAPH 97
10.
I agree with my colleagues that if cannabis were excluded from the Dangerous Drugs
Act 1965 the case for retaining police powers of search and arrest without warrant
would have to be reopened. I agree that it is difficult to consider these police
powers in relation to cannabis alone, but as we are recommending new legislation
to deal separately with cannabis, it is our duty to make some recommendation.
Without doubt there are some occasions when the police search for one drug and
find another. But there are other occasions when the reasonable grounds for suspicion
relate only to suspected cannabis-use. Consequently I believe it is necessary
to state that the existing extensive police powers of search and arrest are not
necessary as we all agree that taking cannabis in moderation is a relatively minor
offence (paragraph 87).
11.
In my opinion the powers of search are already too wide. Section 6 of the Dangerous
Drugs Act 1967 gives the police power to stop and search without warrant any person
reasonably suspected of being in unlawful possession of drugs. The dangers in
these new powers are immense, for there is only the subjective word "reasonably"
to prevent the over-zealous from stopping and searching anyone for anything, anywhere.
Young people especially are already being subjected to indiscriminate searches
where no grounds for reasonable suspicion exist. Parliament bad been led to assume
that the purpose of the Dangerous Drugs Act 1967 was to deal with drugs such as
heroin, but large-scale searches for cannabis are now made under section 6 of
this act. This section was put in as a late amendment and accepted by an unwatchful
House of Commons almost without discussion. It should be repealed.
RESERVATIONS
TO PARAGRAPH 101
12.
The previous eleven paragraphs give the reasons for my dissent to items (7), (9)
and (10) of paragraph 101. 1 agree with items (1) to (6) and (8h (11) and (12)
