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The Scottish Office Central Research Unit
PERCEPTIONS OF DRUG CONTROL PROBLEMS AND POLICIES:
A COMPARISON OF SCOTLAND AND HOLLAND IN THE 1980's
Sally Haw, BSc
Jason Ditton, BA PhD
Each author made a separate study tour of The Netherlands.
Jason Ditton is particularly grateful for all the help generously provided by: Professor H Bianchi, Dr E Buning, Dr P Cohen, Dr P van Dalen, Dr J van Dijk, Dr E L Englesman, Dr J Horn, Mr R Kerssemakers, Dr D Korf, Dr J Naeye, Professor M Punch, Mr J Walburg, Dr J van Wijngaarden, and Chief Inspector L Zaal.
Sally Haw, in turn, is particularly grateful for all the help generously provided by: Dr M Blom, Dr E Buning, Dr E L Engelsman, Dr L M Erkelens, Dr B Eyromd, Chief Inspector Heyden, Dr S Mustard, Dr P Sandwjick Dr J van Sinderen, and Dr H J van Vliet.
LIST OF FIGURES AND TABLES
Table 1 NETHERLANDS: Summary of the Opium Act, 1976: Maximum Penalties
Table 2 SCOTLAND: Maximum Penalties under the Misuse of Drugs Act (From 1986 Onwards)
Table 3 SCOTLAND: Controlled Drugs by Schedule and Class, Misuse of Drugs Act (From 1986 Onwards)
Table 4 SCOTLAND:Availability and Potential Offences Under Misuse of Drugs Regulations (1986 Onwards)
The mainstay of international drug control policy at an operational level has been the reduction of drug production and drug trafficking. Demand reduction, as a theme, has appeared more recently. The Netherlands has a world-wide reputation for its liberal control regime, while Scotland has recently followed a different path. This review attempts to assess the differences in policy in the period up to 1988, and the extent to which they relate to the presence of different problems.
The Netherlands has a population 3 times the size of Scotland's. Until the early 1970s heroin use in The Netherlands (as in Scotland) was confined to a small group of users, but by the end of the 1970s, there were probably about 17,500 opiate addicts in The Netherlands. Only some 40% were injectors, and the size of the opiate using population has not changed during the 1980s.
The Dutch approach to drug control is based on the idea that "risk should be the point of departure for drug policy". Cannabis products (excluding cannabis oil) are distinguished from those which pose an "unacceptable" risk. Those convicted of trafficking in unacceptably risky drugs are punished as severely as they would be anywhere else. Chronic users of drugs posing unacceptable risks may find the law used to coerce them into suitable treatment. Cannabis use and small scale dealing in cannabis are both effectively decriminalised. Since the incursion of HIV into injector sub-populations, treatment policy has changed locus, with harm-reduction the dominant theme. The Dutch have an unearned reputation for a laissez-faire approach and for a drug problem which is chaotic and out of control. The reality is pragmatic social control which combines intensive surveillance and early identification of emergent problems.
The rapid increase in opiate use that was experienced by most western European countries came later to Scotland than to The Netherlands. However, by the end of the 1980s, the prevalence of both opiate and injecting drug use in Scotland was considerably greater than in The Netherlands. UK drugs legislation is complex: drugs are classified into 3 levels of harmfulness and 5 levels of availability. An additional distinction is made between possession and supply. Rates of trial, conviction and severity of disposal have all seen marked punitive shifts during the 1980s. It is also noticeable that many of the cases which led to prosecutions for 'supply offences' in Scotland during the mid-1980s would have been dismissed as 'possession for personal use' in The Netherlands.
Yet it is shown, in conclusion, that Germany and America both have a more draconian approach to these problems than does Scotland. Scottish and Dutch drug control policies are by no means at either end of the spectrum, and, indeed, have much in common. In particular, the role of harm reduction strategies, and the utility of the criminal justice system in levering users into treatment.
The control of the production and supply of illicit drugs has been of international concern since the beginning of the twentieth century. In the first half of the century a series of international agreements and treaties were signed mainly to control the opium trade. Then, in an attempt to consolidate and unify the international response, the United Nations drew up the Single Convention on Narcotic Drugs which was signed by 65 countries in 1961. In addition to opiates and cocaine, this treaty also covered cannabis. The Convention of Psychotropic Drugs of 1971 then extended international controls to other drugs such as LSD, amphetamine, barbiturates and benzodiazepines.
Until the early 1970s, the assumption behind most international policy was that drug misuse could be contained and reduced simply by using law enforcement measures to limit the supply of illicit drugs. However as Hartnoll points out, the Convention of Psychotropic Drugs included an article on reducing "demand" which required signatories to develop programmes for the treatment and rehabilitation of problem drug takers and to promote prevention of drug use through education. The requirement for "demand reduction" was subsequently included in the Single Convention which was amended in 1972 (1). Nevertheless, the main objectives of international policy at an operational level is the reduction of both the large scale production of and trafficking in illicit drugs.
In sharp contrast, domestic drug policies which have developed in Europe and North America since the 1970s have had the dual aim of reducing both "supply" and "demand". These policies are based primarily upon an interaction between law enforcement and programmes of treatment and rehabilitation, and, to a lesser extent, educational measures aimed at prevention. This interaction of the 3 strands of domestic policy gives considerable scope for national variation depending upon the cultural and structural base of the individual countries concerned.
The Netherlands - particularly Amsterdam - has gained a reputation as "Europe's 'drug gateway"' (Times, 14 February 1985) and as "the drugs capital of Europe" (Times, 25 May 1985). Scotland, conversely, has followed an extreme version of the apparently opposite "get tough" policy since 1980.
The aim of this report is to provide an account of the development of domestic drug control policies in Scotland and The Netherlands, up until 1988, and then to discuss these in the context of policies that have developed in Germany and the US.
2. DOMESTIC DRUG CONTROL POLICIES IN THE NETHERLANDS
2.1 The Netherlands
The Netherlands is a small country with a population of 14.7 million, many of whom live in the Ranstad, an area in the West of the country which includes the cities of Amsterdam, Rotterdam, The Hague and Utrecht. Since the 17th century, The Netherlands has been a trading nation and shipping, commerce and transit trade remain the central economic activities of the country. Following the world-wide recession which began in the early 1970s unemployment has remained comparatively high at about 15% of the workforce.
Political upheaval in the Dutch colonies followed by independence, resulted in an influx of ethnic minorities, first of South Moluccans, followed in the 1970s and 1980s by a much larger influx of Surinamese. Current estimates suggest there are 35,000 South Moluccans and 180,000 Surinamese. Dutch policy in the 1970s and 1980s has been to assimilate and integrate the ethnic minority groups, nevertheless unemployment amongst young South Moluccans and Surinamese, aged 18-24 years, was estimated to be 2 to 3 times higher than unemployment rates of white Dutch (2).
2.2 The Growth of Drug Taking
Until the early 1960s the use of illicit drugs was limited to small groups of individuals. In the early part of the century, opium use was tolerated amongst elderly Chinese (mainly of Hong Kong origin). There was also a small number of therapeutic addicts, and professionals who had become addicted to opium or its derivatives because of easy access.
During the 1960s the recreational use of cannabis became popular amongst young people and by the end of the decade there were an estimated 10,000 to 15,000 regular users. At the same time, opium use had also spread to middle-class youth. Initially this group were small in number and on the fringes of the drug sub-culture but by the early 1970s, there were an estimated 200 opium addicts of Dutch origin
At this time the use of heroin was confined to a small group in Amsterdam and Rotterdam. But in 1973, the arrest of many of the Chinese opium dealers coincided with an influx of heroin first from Hong Kong and then from South East Asia (Thailand, Laos and Burma) and many opium users changed to heroin (3). With widespread availability, the number of heroin "addicts" rose rapidly and by 1977 the population was estimated to be 5,000 (4). During the 1970s heroin use also began to move down the socio-economic scale into 2 new groups - the ethnic minorities and other young unemployed people.
During the 1980s the Dutch hard drug using population was estimated to be between 15,000 and 20,000 addicts (5). Approximately 50% lived in the cities of the Ranstad area (5) with Amsterdam having the largest single addict population (about 3,200), followed by Rotterdam with an estimated 2,500. The total population was thought to be made up of approximately one-third indigenous Dutch, one-third Surinamese and one-third "foreigners", 50% of whom were of German origin (6).
There is some evidence to support the idea that in The Netherlands, IVDU population growth stabilised and in some cities may even have fallen. The number of deaths (an indicator of prevalence) amongst Dutch addicts, for example, remained constant for a number of years and the average age of drug users increased steadily. However, while this may have been true nationally, there was also evidence of increasing drug use amongst socially disadvantaged groups, particularly the ethnic minorities. Wijngaart, for example, estimated that as many as 2% of the Surinamese and South Mollucans may be dependent upon heroin (4). Increases were also reported amongst Turkish "guestworkers" and some sections of young unemployed.
Injecting rates varied considerably between sub-groups. Amongst the Surinamese there was practically no drug injecting, instead most inhaled the fumes of heated heroin (commonly called "chasing the dragon"). However, amongst the indigenous Dutch, injecting rates were estimated to be about 40%, and for "foreigners", estimates of injecting rates rose to 70%.
It appears that by the late 1980s The Netherlands had a mean estimate of 17,500 indigenous drug users. If it is assumed that only about 40% were injectors, then The Netherlands had some 7,000 IVDUs.
In addition to heroin, a range of other drugs including cocaine, benzodiazepines and amphetamines were available on the black market and these were frequently used either in combination or instead of heroin.
Unlike in the US, cocaine use in The Netherlands at this time had stabilised and "crack" was described as a rarity (1). However, if "crack" does become more widely available in Europe, as some predict it will (8), there are a number of features of the ethnic minority sub-groups which may make them more susceptible. First an increase in heroin use, second similarity in methods of administration of "crack" and heroin, and finally social marginalisation caused by high rates of unemployment amongst young South Moluccans and Surinamese.
3. DUTCH DRUG CONTROL POLICY
The Netherland's drug control policy has evolved over the last 20 years. Following a period of confusion prior to enactment of the new Opium Act, a more cohesive, integrated and explicit policy emerged after 1976. Two factors have been particularly influential in development of current policy. First the 1972 report of the Narcotics Working Party which shaped both the new legislation and the development of services for drug users; and second, the national co-ordination of all ministries involved in the drugs issue.
3.1 Dutch Drug Laws
The Opium Act of 1919 still provides the legal framework for drug control policy. It prohibited the import, export and transit of cocaine, opium and cannabis. In 1953 the Act was amended. Maximum penalties were increased from one year to 4 years, and for the first time the possession of cannabis was made an offence. In 1961 The Netherlands signed the Single Convention, and amendments to the Opium Act in 1964 incorporated the requirements of the Single Convention.
In 1968 a working party was set up to consider ways of responding to the developing drug problem. Initially the working part was instructed to publicise the dangers of drugs but in 1970 following the appointment of a new Chairman, who favoured legal reform, the direction of the group changed (9). The working party reported in 1972.
The recommendations were based upon the premise that "risk should be the point of departure for drug policy"(6), and hence drugs legislation should distinguish those drugs which pose "unacceptable" risks. The main recommendations on judicial policy fell into 3 categories and were as follows:
On the question of trafficking in drugs which pose an unacceptable risk, the working party made the following observations:
"There is no difference of opinion about the great dangers of using substances like amphetamine, opium, morphine, heroin and LSD ... (and) ... it is true to say of the dealer that he endangers the health of his customers ... That his conduct is deserving of punishment is therefore not under discussion, any more than the view that such conduct must be regarded as a felony."(l0).
However, the user of drugs which pose an unacceptable risk was regarded in a different light:
"The chronic user of drugs, insofar as he has become dependent upon them, is usually a patient. Punishing him is not the right approach. Against this is the fact in the present situation pressure on the patient to seek aid and also to behave in conformity with a programme of aid can be exerted in many cases only via the criminal law."(l0)
The working party concluded, therefore:
"It will be necessary for the time being to maintain the felonious nature of chronic use of these substances as a means of compelling the user to seek aid. "(10)
However they did go on to say:
"The decriminalisation of chronic use, which the working party considers desirable in principle cannot begin until an aid and service system has been keyed to these principles." (10)
With regard to trafficking in and use of cannabis products the working party made the following observations:
"In the existing legislation on cannabis the fact is overlooked that the risk to the individual of using cannabis may not be put on a par with the risk of using substances that have a strong pharmacological effect." (10)
The following was offered as a possible solution:
"The use of cannabis products, including possession for personal use and dealing on a small scale could be reduced to a misdemeanour, while large scale trafficking remains a felony subject to a term of imprisonment not exceeding one year."(l0)
However, it was envisaged that prosecution for possession of cannabis products for personal use and small scale dealing would be avoided "by reaching an agreement with the public prosecution". This solution would effectively decriminalise possession of cannabis and small scale dealing while keeping Dutch drugs legislation within the Single Convention agreement.
The working party also considered whether a licensing system for the sale of cannabis products was feasible. While this was considered to have many advantages, the idea was rejected by the working party because The Netherlands would no longer comply with the Single Convention. Withdrawal from this agreement would have 2 unacceptable consequences. First, The Netherlands would probably be unable to obtain opium for the preparation of morphine from countries who still adhered to the Single Convention and second, with the loss of co-operation of other signatories, traffic in more dangerous drugs could no longer be combated as effectively.
In 1976, 4 years after the working party had reported, a new Opium Act was enacted. It
will be recalled that under the old Opium Act of 1919 (amended in 1953), the consumption
of, or dealing in, all narcotic drugs was prohibited and the maximum penalty for
contraventions was 4 years imprisonment. The new legislation which incorporated the main
recommendations from the Narcotics Working Party represented a radical departure (see
3.2 Prosecution Policy
The Opium Act of 1976 provides the legislative framework for the drug control policy, but application is dependent upon police, prosecution and judicial policy which in turn are determined to a great extent by guidelines from the Ministry of Justice. In 1980, guidelines were published which set the criteria for distinguishing between drug trafficking and buying and selling for personal use. The guidelines indicated that quantities of up to 30 grammes in the case of cannabis products, and up to one-half gramme in the case of heroin and cocaine, should be classified as buying or selling for personal use.
The guidelines also indicated that although cannabis for personal use was classified as a misdemeanour principally to comply with the Single Convention, a policy of non-prosecution of users or small scale dealers should be adopted. In Dutch law, the non-prosecution of offences is possible if using the "expediency principle" prosecution is judged not to be in the public interest. Application of this principle together with the Ministry's prioritisation of police operational policy to drug trafficking in "hard" drugs has effectively decriminalised cannabis use.
Ministry of Justice guidelines also indicate that imprisonment for users of "hard" drugs such as heroin is not appropriate, and instead contact with the legal system should be used as a lever into treatment (11).
Although guidelines indicate police resources should be aimed at drug trafficking there is still some variation in police operational policy in different areas. In Amsterdam and other large cities like Rotterdam for example, the ''unofficial'' sale of cannabis by "house dealers" in coffee shops and youth centres is tolerated providing certain conventions are observed - no sales to customers under 16 years of age, no advertising and no large scale dealing takes place. In smaller towns, like Utrecht or Harlem, cannabis sales are less overt. Back in Amsterdam, possession of up to 2 to 5 grammes even of heroin or cocaine is often ignored.
While drugs legislation and implementation has largely decriminalised any drug use, drug users do still come into contact with the criminal justice system. In recent years there has been a rise in cases of theft particularly in Amsterdam (12). Much of this increase has been attributed to drug users from more deprived socio-economic groups who steal in order to get money to buy drugs. However, in The Netherlands, drug addition is not seen as a mitigating factor when property offences have been committed because of the wide range of services available - including the legitimate supply of methadone as a substitute for opiates.
3.3 Drug Treatment Policy
Drug treatment policy in The Netherlands developed gradually over a period of 15 years. During the 1970s the primary aim of treatment was abstinence, and acceptance into treatment was dependent on the drug users' willingness to become drug free. However, towards the end of the 1970s, there was a growing realisation that such strict criteria for access to drug treatment facilities excluded those who were unwilling or unable to abstain. The result was a growing population of drug users who had no contact with any kind of treatment agency at all. This, together with the advent of HIV, caused a major shift in thinking and during the 1980s a new philosophy emerged.
The primary aim of treatment in the 1980s was "to improve addicts' physical and social well being, and to help them function in society in a more stable way" in order to reduce the harm of drug taking both for individual drug takers and the community as a whole. The key concept was "perceived accessibility of facilities".
The development of services at this time was based on the premise that on the road to "recovery or cure" drug users pass through 4 main stages - low threshold contact, harm reduction, therapy and resocialisation. At different stages different kinds of services are required. The result was a differentiated range of services from "street corner" workers, "outreach" workers and low threshold prescribing of methadone, through to residential drug dependency units, detoxification centres and drug-free therapeutic community centres. However, the emphasis in service development was undoubtedly on low threshold contact and harm reduction. Abstinence became a secondary aim (14).
3.4 Legitimate Availability of Drugs
Prescribing of substitute drugs, like methadone, to addicts was based on the premise that the provision of a legitimate substitute will reduce or eliminate reliance on a black market. In The Netherlands, with the exception of a small experiment in 1983 with heroin, only oral methadone has been made available. Methadone was an attractive drug for this purpose because it is long acting and, therefore, dispensing could easily be controlled and was initially thought to block the effects of other drugs.
The prescribing of methadone in The Netherlands first began in the late 1960s and early 1970s. By 1978 methadone was available to addicts in most of the large cities. However a report from the Federation of Alcohol and Drug Dependent Organisation (FZA)(4) indicated that there were no uniform criteria for the selection of clients, little agreement about dose levels and prescribing schedules, and a range of different organisations involved. According to Buisman (1983)(4) this situation continued into the early 1980s. By late 1981, it was estimated that 5,000 individuals or one in 3 of the addict population were receiving methadone (1,300 in detoxification programmes, 1,600 on a maintenance programme, and the remainder through family doctors or general hospital). By the late 1980s, in Amsterdam, it was estimated that approximately half of the addict population were prescribed methadone from some source.
In Amsterdam and some of the larger cities, low threshold methadone programmes were established which made minimum demands on the drug-user. The original aim of eliminating reliance on black market opiate provision was never realised, but it was thought that they made an important contribution to harm reduction, particularly amongst chronic addicts. In Amsterdam, methadone was dispensed through the now famous converted buses which toured the city following a regular route and timetable. The conditions for participation were a medical examination, regular contact with a doctor, registration on the central methadone register, and the consumption of an oral dose on the bus. Unlike higher threshold methadone programmes, there were no waiting lists, no counselling and no urine testing once enrolled, drug users had simply to turn up at the right time and place and methadone was dispensed, usually on a maintenance schedule.
When the low threshold methadone programme was first established it was envisaged that it would have a stabilising effect on behaviour. It was also believed that after an initial period drug users would move on to the higher threshold out-patient methadone clinics which make greater demands on patients and require drug users to give up illicit drug use, participate in regular urine testing, attend counselling and eventually take up drug-free treatment. While a proportion of drug takers have made this move, the city of Amsterdam in particular was faced with an aging group of drug takers who failed to make the transition into these higher threshold treatment facilities. Ways of encouraging this transition are currently being considered. In spite of these kinds of problems, the treatment policy has achieved one of its principal aims. For example, in Amsterdam it is estimated that 70% of drug takers have some contact with treatment agencies, with over half receiving methadone from the Municipal Health Service (14).
In addition to the low and high threshold methadone programmes, about half of the 400 family doctors also prescribe methadone in Amsterdam. Interestingly, the role of the family doctor in relation to prescribing has changed. In 1976, the Dutch Health Council argued against family doctor involvement in prescribing because of the potential for manipulation by addict patients. However, in the major cities their role has been reassessed because they are thought to have a closer relationship with patients and have a better knowledge of primary health care requirements. There are also sufficient family doctors to avoid the congregation of addicts which specialist centres have inadvertently encouraged, and dispensing methadone to "drug tourists" can be avoided, as only patients registered with a family doctor can be prescribed methadone.
3.5 The Interface between Criminal Justice and Treatment Agencies
Over time views about the efficacy of drug treatment as a method of reducing the demand for drugs has changed. During the 1970s, it was envisaged that treatment would lead to abstinence and reduction in demand, however, during the 1980s it became clear that this had not happened. Drug treatment became less central in the strategy with education playing an increasingly important role. The role of law enforcement in demand reduction reamined peripheral. However, in spite of police and prosecution policy which had largely decriminalised drug use, the number of drug users sent to prison, either for more serious Opium Act offences or property offences, such as theft, increased. Towards the end of the 1980s, almost half of the inmates in Dutch prisons were thought to have a drug problem twice as many as in 1979 (15).
Most drug users entering prison at this time were receiving methadone prior to their detention, and the majority were initially prescribed methadone in prison (on a reduction schedule). However, a drug-free detention programme had also been established about 10 years previously. This programme was set up initially in remand houses and aimed to:
Since that time, an increasing number of drug-free wings have been established in prisons. Drug-free wings offer inmates special help with a drug problem, and for highly motivated prisoners there is the opportunity to attend clinics outside prison before their sentence is completed. Entry to a drug-free wing is dependent upon agreement to participate in voluntary urine testing 3 times a week. In December 1988, a mandatory urine testing scheme (on a less frequent basis) was also introduced across the whole prison selvice. In addition to reducing differences between drug-free wings and the rest of the prison system, this is also part of a strategy aimed at reducing the amount of illicit drug use in prisons, and links with a scheme to notify the public prosecutor whenever drugs are found in prison.
But how appropriate are prisons for the treatment of drug users? A report from the Dutch Govemment's Scientific Advisory Council concluded that effective treatment could take place in prisons, yet recommended that special prisons be established specifically for this group of offenders. However, over and above practical problems such as the identification of offenders with a drug problem (and what to do with short stay prisoners), this recommendation runs directly counter to Dutch Government drug policy which aims to assimilate drug users rather than isolate or segregate them.
And so, in response to the growing population of drug users in prison, health and justice Ministers recently recommended that drug users who commit drug-related property offences should, wherever possible, be offered treatment as an altemative to imprisonment. Failure to comply with treatment requirements would result in reinstatement of the original prison sentence.
4. DOMESTIC DRUG CONTROL POLICIES IN SCOTLAND
Drug control policy in Scotland is essentially the same as for the rest of the UK. However, because of differences in legal structure the application of policy appears to be qualitatively different.
Scotland is a small country with a population of approximately 5 million. The country is divided into 8 regional areas, but the majority of the population lives in the central belt which includes the 2 major cities, Glasgow and Edinburgh.
Scotland once had a substantial industrial and manufacturing base but the world-wide recession in the early 1970s caused large scale closures in the ship building, engineering, mining and steel industry which resulted in high levels of unemployment, particularly in Glasgow and Dundee. New jobs were created in light industry and in the financial, service and tourist sectors during the 1980s, but the national unemployment rate still remained high at 7%.
4.2 History of Drug Taking in Scotland
The use of illicit drugs first became common in Scotland during the early 1960s. Cannabis products were used most often but other drugs like LSD and amphetamine were also available. Many Scottish studies at this time focused on the student population with whom drugs were most commonly associated (17), but in Glasgow cannabis and LSD were also used by small groups in outlying local authority housing schemes.
Opiate use first began in the late 1960s, probably amongst a very small number of Scottish drug users who had London connections. Over the next decade the number of heroin users rose but was contained within a group many of whom were prescribed substitute opiates (methadone or morphine) and were therefore well known to existing treatment agencies (18). As far as can be determined there was no evidence of a substantial black market until 1980, when there was a large influx of Iranian heroin. This was quickly replaced by heroin from Pakistan and Afghanistan. The number of drug injectors rose rapidly and, by 1983, Glasgow was estimated to have a drug injecting population of 5,000 (19). In the following year, Edinburgh was estimated to have a minimum opiate using population of 1,500 and probably considerably greater (20). There are no reliable estimates of prevalence of opiate use for Scotland as a whole, but projections based on population density and an urban to rural spread give an estimated population of about 13,000 in 1988, and 17,000 in 1989 (21)
During the 1980s, injecting rates amongst Scottish drug takers were estimated to be between 70% and 80% and, although many may have preferred heroin, a wide range of other drugs were taken depending on availability. After 1985, there was a shift from the use of black market heroin to pharmaceutical opiates, such as Temgesic (Buprenorphine) and Dihydrocedeine. The use of Temazepam, a Benzodiazepine, also became very common (23).
4.3 Scottish Drug Legislation
The development of UK drugs legislation followed a similar pattern to most other European and North American countries and the Dangerous Drugs Act of 1965 reflected the requirement of the Single Convention agreement. Under this Act, cannabis and heroin were seen as equivalent with maximum penalties for offences set at 10 years. Amendments to the Act in 1967 extended police powers of search and arrest.
The current legislation concerned with the control of the use and supply of drugs is the Misuse of Drugs Act. This was passed by Parliament in 1971, and its main provisions came into operation in 1973. This Act replaced all the provisions of the Dangerous Drugs Act, and contained two important changes in the interpretation of drug offences. First, there was a shift from what had been loosely defined as "dangerous drugs" to "controlled drugs" which were now classified as Class A, Class B or Class C. And second, a clear distinction was made between possession of a controlled drug and supply offences (24).
Except for additions to the list of controlled drugs and alterations to the penalties attached to offences, the Misuse of Drugs Act remained unchanged for 12 years. But in 1986, the maximum sentence for trafficking in Class A drugs was increased from 14 years to life imprisonment.
Table 2 outlines the penalties currently attached to each class of drug.
In the same year, the schedules which specify exemptions to the Act, and indicate whal counts as an offence, were extensively reorganised in order to allow the inclusion of the Benzodiazepines (minor tranquillisers) as Class C drugs. This reorganisation of the schedules has made the Misuse of Drugs Act an extremely complex instrument. The main difficulty is that the class of drug which determines the penalty is now independent of the schedule which indicates when an offence has been committed with a particular drug. For anyone wishing to understand the implications of changes in the schedules, the classification of drugs within the regulations which now define what counts as an offence - the Schedules differ from the classifications of drugs within the Act used to specify maximum penalties that is the Class. Table 3 provides a summary of how the 2 classification systems relate to each other.
Table 4 outlines the availability of controlled drugs and the offences which can be committed under the new regulations. The drugs specified in Schedule 1, including cannabis and LSD, are the most strictly controlled by law. None of the drugs in this category are authorised for medical use. However, they may be supplied, possessed or administered under license, but only in special circumstances, for example research (25).
The drugs specified in Schedules 2 and 3 include the majority of controlled drugs which are available for medical use. Under the regulations, it is a criminal offence both to possess them without a prescription or to supply them to other without proper authority. On the other hand, Schedule 4 drugs such as the Benzodiazepines, may be possessed without a prescription providing they remain in their medicinal form, but if prepared for injection a criminal offence is committed. It is also an offence to supply or possess these drugs with intent to supply.
In addition to the changes in the Misuse of Drugs Act, other new legislation was introduced which radically extended powers to confiscate the proceeds of drug trafficking. The English Act, the Drug Trafficking Offences Act, became law in 1986, while the equivalent Scottish legislation was contained in the Criminal Justice (Scotland) Act 1987 which came into force at the beginning of 1988. The main thrust of the legislation was to extend powers to enquire into personal financial affairs, to seize bank accounts and to permit confiscation of proceeds from drug trafficking.
Moreover, after an accused has been found guilty of trafficking, the onus is now on the individual rather than on the prosecution to prove that assets are from legitimate sources and not derived from the proceeds of drug trafficking (26, 27). By contrast, housebreakers, for example, even if proven guilty of one charge of housebreaking, do not thereafter have to demonstrate that their residual assets are not the product of other housebreaking.
4.4 Prosecuting and Sentencing Policy
The ethos which underpins the Scottish system of criminal justice is one of autonomy and independence. Furthermore, the policies of the three agencies, the police, the public prosecutor (Procurator Fiscal Service) and the judiciary, are not influenced directly by Government directives or guidelines. However, a study of the sentencing of drug offenders in Scottish courts conducted in 1988, concluded that during the 1980s there was a shift in policy which resulted in an increasingly punitive response to both drug users and drug traffickers (28).
This study found that concurrent with an increase in heroin use between 1980 and 1986 came a sharp increase in the number of drug prosecutions. While the great majority of offenders were prosecuted for possession of cannabis products (usually small quantities of cannabis resin), there was also a sharp increase in the number of prosecutions for offences involving opiate drugs and/or drug trafficking. Before 1980, many of these were referred to the High Court. In 1980 less than 1% of High Court criminal prosecutions involved drug offences but by 1986 the proportion had reached 27%. Mean sentence lengths for convicted drug offenders rose dramatically from 321 days in 1981 to a peak of 1,132 days in 1984 and then fell gradually in the following years to 712 in 1987.
To some extent both the increasing drug workload in the High Court and the increase in mean sentences for convicted drug offenders reflected an increase in the seriousness of offences committed. However, Scottish judges who were interviewed in connection with the study indicated that many of those convicted of trafficking offences at this time were drug users who sold drugs to finance their habits.
In spite of this, severe exemplary sentences were imposed and a prison sentence of 4 years might be expected by a drug user who was supplying small quantities of opiate drugs. Similarly, for the supply of 500 grammes of cannabis resin a 4 year sentence might also be expected.
In addition to severe sentences passed on offenders convicted of drug dealing, what has characterised the Scottish response has been an increasingly literal interpretation of the 'supply offences' contained within the Misuse of Drugs regulations. And so, the "intent to supply it to another" in Section 5 (3) of the 1971 Act was often inferred (by judges and juries) from quantity alone, in the absence of financial records, scales and means of packaging. As a consequence, a drug user in possession of more than one or two days supply, put himself in danger of being held to have the intent. At the same time, drug users were convicted under Section 4(3)(a) of the Act (to supply a controlled drug) when the evidence indicated that they had only shared drugs with a friend. Finally, "to be concerned in the supplying" of a controlled drug (Section 4(3)(b)) might be inferred, if directions were given to another indicating where drugs might be purchased. These interpretations of the Misuse of Drugs Act Regulations brought many drug users within the operational definitions of 'drug dealing' employed by the police and the Crown.
4.5 Drug Treatment Policy
Specialist drug dependency units or treatment centres were first set up in Scotland during the late 1960s. They were often linked to alcohol units and were run by psychiatrists who provided both out-patient services and some in-patient detoxification. As in English drug dependency units, substitute opiates were usually prescribed to patients attending Scottish clinics. This practice of prescribing drug substitutes to addicts was known as the British System of Containment and, until the mid-1970s when drug use in England began to increase rapidly, was generally regarded as highly successful in limiting the spread of drug use (29).
Indeed, this was the case in Scotland during the 1970s when drug use was largely contained. Heroin use was confined to small numbers in urban centres, and the majority of users were known to drug treatment agencies. Nevertheless amongst Scottish clinicians there was some unease about the prescribing of substitute drugs and, during this period, there was a gradual shift in prescribing policy. This included changes away from:
Although there was regional variation in prescribing policy, Scottish clinicians were gradually moving from the idea of containment through prescribing achieving abstinence by drug-free counselling. And by the early 1980s, when Scotland experienced its first sharp increase in heroin use amongst the young unemployed, legitimate substitute drugs were often impossible to obtain.
In response to the growing number of heroin users in Scotland, central government funding was made available to establish a range of services in Scotland's major cities- Glasgow, Edinburgh and Dundee. Many of the projects funded were community-based services which offered support and counselling for drug users. This represented a significant shift away from the medico-centric response of the late 1960s and 1970s (30).
By the end of the 1980s, a network of services had been established in Scotland, ranging from drop-in centres to day programmes and residential rehabilitation centres. There was also a growth in volunteer, self help and parent support groups. The aims of these services were wide-ranging but during the 1980s the emphasis of most drug treatment was towards abstinence with prescribing playing only a tiny part. For example, in 1988, Scotland was estimated to have a drug injecting population of about 13,000 (21), however at the end of that year only 187 drug users were recorded as receiving noiifiable drugs as part of treatrnent (32).
In 1986, the discovery of HIV amongst a large number of drug injectors first in Edinburgh (38) and then in Dundee (34) led to a significant shift in treatment policy. As in The Netherlands the majority of drug treatment agencies regarded HIV as a greater danger than drug use, and as drug injectors would not necessarily achieve 'drug abstinence' overnight, the primary focus of much of their work shifted from abstinence to harm reduction. Needle exchange schemes were established which aimed to reduce needle sharing and the risk of HIV transmission by making new injecting equipment more available to injecting drug users. In addition, the non-prescribing policy was gradually reversed in some cities.
4.6 The Link between Treatment and Punishment
The presence of a large number of drug users in Scottish prisons has caused considerable concern because of the possible spread of HIV infection (31). Reports of illicit drug use in prison has resulted in calls for prescribing substitute drugs and the distribution of clean injecting equipment there. The latter proposal has been rejected. However, a pilot drug reduction programme has been established at Saughton Prison in Edinburgh together with an agreement in principle to establish similar schemes in other prisons.
In the Government Green Paper, Punishment, Custody and the Community, the link between opiate use and a wide range of offending behaviour was also noted and it was suggested that:
'Although more co-ordinated and intensified effort is being put into the care of drug misusers who go to prison, the chances of dealing effectively with a drug problem are much greater if the offender can remain in the community and can undertake to co-operate in a sensibly planned programme to help him or her come off drugs' (36).
And in the White Paper, Crime, Justice and Protecting the Community that followed, the value of supervision of drug taking offenders in the community was noted. In particular, it was reported that:
'The Government will take the opportunity to clarify other powers of the courts on probation orders. It will be made clear that probation orders may include a condition of treatment designed to reduce an offender's dependence on drugs or alcohol' (37).
The recommendations contained in the Green and White papers were only directly relevant to England and Wales. However, in Scotland, some judges did already hold the view that contact with the criminal justice system could be used as a lever into treatment, with attendance at a drug treatment service added as a condition of a probation order or deferred sentence. However, this was by no means a well established practice, and was dependent upon the knowledge of individual judges and the policies and practices of drug treatment agencies involved.
Furthermore the interpretation of the Misuse of Drugs Act brings the majority of drug users well within the operational definition of drug dealing which was punished severely in the courts.
5. CONCLUSION: INTERNATIONAL DRUG CONTROL POLICIES COMPARED
5.1 Summary of Dutch Drug Control Policy
The domestic drug control policy which was established in The Netherlands during the 1980s has been described as both pragmatic and tolerant. Pragmatic because realistic goals were set for both law enforcement and treatment agencies. Tolerant because policies sought to assimilate and normalise the deviant group rather than reject and isolate it. The principal features of Dutch domestic drug control policy at this time were:
Although generally accepted in Holland, the Dutch drug control policies have received considerable criticism from politicians abroad, particularly those from America and Germany. In response to this criticism, the Dutch have established a programme to promote their approach. This resulted in a coherent, well argued and well documented policy which is gaining increasing acceptance at a European level.
Much of the criticism stems from a basic misinterpretation of policy, and a misunderstanding of the mechanisms of social control. "Pragmatic" has been misinterpreted as "liberal", and "tolerant" as "Laissez-faire" with the result that the Dutch situation has been perceived as chaotic and out of control.
However, an alternative view fits more closely the relevant facts. This asserts that far from being out of control, a structure of social control through intensive surveillance and early identification of changing patterns of use permitting rapid intervention when necessary. This is publicly recognised in The Netherlands (16)
5.2 Summary of Scottish Drug Control Policy
During the 1980s, Scottish drug control policy shifted from one of containment through prescribing to criminalisation. As opiate use increased in the early 1980s, the availability of legitimate sources of opiates decreased. Concurrent with this came an increase in the penalties attached to all drug offences and a shift in prosecution policy which brought many drug users well within the operational definition of drug dealing which was then dealt with severely in court. The principal features of Scottish drug control policy at this time were:
As can be seen the aims of the treatment and criminal justice agencies in Scotland were therefore in conflict, and this resulted in considerable variability in outcome for drug users who come into contact with the criminal justice system. Drug users convicted of offences involving dishonesty, for example, were often treated quite leniently by the courts. The majority of those convicted of drug offences were likely to be treated severely.
There was some recognition of the potential for using contact with the criminal justice system as a lever into treatment but it did not develop into policy. Such an approach can only be successful if:
5.3 Summary of American and German Drug Control Policies
By the end of the 1980s Scottish and Dutch drug control policies were by no means at either end of the spectrum, and, indeed, shared some features. In particular, both recognised the role that harm reduction strategies can play, and that the criminal justice system can function as a useful lever easing users into treatment.
In the US, however, the idea of using the criminal justice system to lever individuals into treatment was taken a stage further with their concept of "civil commitment". There, any medical practitioner or judge has the power to commit a "drug addict" to compulsory treatment, whether or not the individual so wishes (38, 39). However, while such treatment may reduce criminality and levels of drug taking (40), compulsory treatment is impractical without an adequate number of treatment "slots", and agreed criteria for measuring improvement or cure. Ultimately, it is also undesirable on grounds of the infringement of human rights which is an inevitable accompaniment of any compulsory treatment programme.
In the US, compulsory treatment was also supported by the rhetoric of the "war on drugs", which, amongst other aims, intended to reduce the demand for drugs by marginalising the drug user. Interestingly, the Bennett Report which was published in 1989 contained proposals which, if enforced at State level, would even marginalise casual and occasional drug users. Following the "zero tolerance" policy, anyone caught using or buying even small quantities of illicit drugs would be subject to the following penalties:
The Bennett Report further recommended that all state and municipal employers should be required to take punitive action against any employee found to be a drug user. Action might include suspension, termination or enrollment in drug treatment programmes. In addition, States were encouraged to review their legislation to facilitate the eviction of convicted drug users and dealers from public housing. These proposals, if introduced, when combined with aggressive policing could marginalise users. Whether, in the long term, this will reduce demand, or, as seems more likely, foster the creation of a parallel underclass, whose members are permanently denied the benefits of membership of mainstream society, remains to be seen.
West German drug control policy was similar to that in the US, in the sense that it adopted a highly repressive and punitive police response to both drug use and drug dealing. However, the West German attitude to treatment is more similar to that of Scotland, with the development of a range of treatment options with a social rather than medical orientation. This is in part because the prescription of methadone is illegal. However, in response to growing alarm over high levels of HIV infection amongst drug users there was a shift in thinking. HIV positive drug users began to be prescribed methadone towards the end of the 1980s. Many Germans also believe that decriminalisation and substitute prescribing will have a more central role in the future. In 1988, German policy was in a state of flux and this, combined with unification with East Germany, makes predictions about the possible direction of German policy impossible to make.
5.4 Towards a Consensus
Consensus over international drug control policies is matched by variation at the domestic level, which has its roots in national cultural and structural differences. Yet, there is a growing recognition that at least some European harmony needs to be fashioned at the level of domestic drug control policy.
The Dutch have a coherent criminal justice and treatment response to drug taking, which works very well despite adverse international publicity. Given the negative publicity of The Netherlands as "Europe's 'drug capital"', in 1989 there was no evidence to support the inference that the Dutch somehow had a larger drug 'problem' than other countries. Indeed, if we draw together available estimates of drug use in Scotland and The Netherlands such evidence as exists suggests that Scotland had a higher prevalence of drug use.
Scotland's drug problem began 10 years later than that of the Dutch (The Netherlands witnessed marked rises in prevalence from the early 1970s), and is expected to stabilise during the l990s. Nevertheless, available evidence indicates that the prevalence of drug use in Scotland will stabilise at a much higher rate that that reached in The Netherlands. This is likely in spite of a highly punitive criminal justice response to drug taking in Scotland during the 1980s.
The development of a European drug policy for the 21st century should not ignore the components of the Dutch model which have been a success.
Perceptions of Drug Control Problems and Policies:
A Comparison of Scotland and Holland
Sources: The Netherlands data is described in § 2.2, and the Scottish data in § 4.2. Neither is particularly or necessarily reliable, and is merely the best available. The Scottish data used here is very conservative when compared with IVDU per 100,000 rates which might be deduced from other studies. For example , Ditton and Speirits estimated that Glasgow had perhaps 1,000 IVDUs in 1981 (18); Haw that Glasgow had 5,000 IVDUs in 1983 (19) and, most recently, Frischer that Glasgow had 9,424 IVDUs in 1989. These imply a rate of IVDUs per 100,000 Glasgow population of 86 in 1981, 432 in 1983 and 816 in 1989. The rates used in the following figure are derived from the analogical epidemiological projection model referred to in Ditton & Taylor, (21). This model conservatively estimates a rate of IVDUs per 100,000 for Glasgow for the same years as: 36 (1981), 136 (1983) and 616 (1989).
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