Chapter 20 - Public Policy In Other Countries - UK

Legislative framework

The main illicit drug legislation in the UK is the Misuse of Drugs Act 1971 (MDA) (which is equivalent to Canada’s Controlled Drugs and Substances Act). This legislation and its regulations (Misuse of Drugs Regulations 1985) control the use of listed drugs (including both medical drugs and drugs with no medicinal use). They set out the circumstances in which it is lawful to import, produce, supply, possess with intent to supply, and possess controlled drugs.

Under Schedule 2 of this Act, drugs are classified as either A, B or C in theory to reflect the degree of harm they are considered to cause to the individual or society when misused. Each class has different maximum penalties that apply to prohibited activities in relation to drugs.

··          Class A is reserved for the more harmful drugs to which more severe penalties apply. This class includes, among others, heroin, morphine, methadone, cocaine, opium and hallucinogens such as Ecstasy and LSD. Also included are liquid cannabis (hashish oil), cannabinol and cannabinol derivatives and any class B drug prepared for injection.

··          Class B includes cannabis, cannabis resin, less potent opioids (codeine), strong synthetic stimulants (oral amphetamines) and sedatives (barbiturates).

··          Class C is reserved for drugs that are considered the least harmful such as tranquillzers, some less potent stimulants and mild opioid analgesics.

The Home Secretary can change the classification of drugs through delegated legislation as was just recently done for cannabis. This modification means that possession of cannabis for personal use will not be an arrestable offence but obtain a police caution.

Sections 3 to 6 set out which activities in relation to drugs are prohibited. They include importation and exportation (the actual offences are contained in and prosecuted under the Customs and Excise Management Act 1979), production, supply, possession, and possession with intent to supply. Cultivation of cannabis is a separate offence but is also considered production. Under section 8, it is prohibited for the occupier knowingly to permit premises to be used for: production; the supply of any controlled drug; the preparation of opium for smoking; or the smoking of cannabis, cannabis resin or prepared opium. Section 9 provides a series of offences related to opium, including smoking or otherwise using opium. Section 9A prohibits the supply of any article which may be used in the unlawful administration of drugs (hypodermic syringes are excluded from this prohibition for the purpose of needle exchange programs). Sections 18 to 21 create other offences mainly dealing with incitement to commit an offence under the MDA.

Penalties are set out in sections 25 and 26. Section 27 deals with forfeiture.

··          For class A drugs, the maximum penalties are as follows: seven years and/or unlimited fine for possession; life and/or unlimited fine for production or trafficking with a mandatory seven-year sentence for a third conviction for trafficking. The mandatory sentence for a third conviction of trafficking is found in the Criminal Sentences Act 1997.

··          For class B drugs, the maximum penalties are: five years and/or unlimited fine for possession; and fourteen years and/or unlimited fine for production or trafficking.

··          For class C drugs, the maximum penalties are: two years and/or unlimited fine for possession; and five years and/or unlimited fine for trafficking.

In addition, producers and traffickers are also liable to confiscation of assets under the Drug Trafficking Act 1994. As stated above, growers of cannabis may be prosecuted under section 4 (production) of the MDA rather than under section 6 (cultivation) of this Act. This is significant because production (but not cultivation of cannabis) is designated a trafficking offence for the purposes of the Drug Trafficking Act 1994. In 1997, a total of 4,168 people were dealt with for production offences of which 92% involved production of cannabis (25% of these offenders were cautioned and 18% of those who were found guilty were sentenced to immediate custody). Offences that are designated as trafficking offences for the purposes of the Drug Trafficking Act 1994 include production, supply, and possession with intent to supply as well as importation offences under the Customs and Excise Management Act 1979. In the UK, most drug offences may be tried summarily by magistrates or on indictment with a jury at a Crown Court. If tried summarily, the maximum cannot exceed six months and/or £5000 fine or three months and/or fine for less serious offences.

Section 7 allows for regulations to be made to exempt certain activities from the offence provisions. This allows for the use of drugs for medicine and for scientific research. The Misuse of Drugs Regulations 1985 divide drugs into five schedules. The regulations set out the classes of persons who are authorized to handle controlled drugs while acting in their professional capacities and lay down the conditions under which certain activities may be carried out. More severe rules regarding importing, exporting, production, supply, possession, prescribing and record-keeping apply to Schedule 1 drugs with a gradual loosening of the rules for other schedules. For example, the most restricted Schedule 1 drugs (such as LSD and cannabis) can be supplied or possessed only for research or other special purpose by licensed individuals and are not available for normal medical uses and cannot be prescribed by doctors who do not have a licence. Schedule 2 drugs–which must be prescribed–are subject to a number of controls relating to prescriptions, secure storage and the need to keep records. Schedule 5 drugs, meanwhile, are subject to the least administrative controls and may be freely imported, exported or possessed for personal use.

Cannabis and certain psychoactive cannabinoids and derivatives are classified under Schedule 1 as having no therapeutic benefit. Thus, they cannot be prescribed and can only be possessed for research purposes by someone who is licensed to do so. Nabilone (a synthetic cannabinoid) is licensed for prescription to patients with nausea or vomiting resulting from cancer chemotherapy, which has proved unresponsive to other drugs. Dronabinol (a cannabinoid) has been rescheduled from Schedule 1 to Schedule 2 and can be prescribed. However, it remains unlicensed in the UK and has to be prescribed on a "named patient basis."

Section 10 allows the making of regulations dealing with safe custody, documentation of transactions, record-keeping, packaging and labelling, transport, methods of destruction, prescriptions, the supply of information on prescriptions to a central authority, the licensing of doctors to supply controlled drugs to addicted patients, and the notification by doctors of their addicted patients.

The Misuse of Drugs (Supply to Addicts) Regulations 1997 restrict to a few specially licensed doctors the ability to prescribe heroin, dipipanone and cocaine for the treatment of addiction.

Other relevant legislation in the field of drug misuse

The Medicines Act 1968 (equivalent to Canada’s Food and Drugs Act) regulates the production and distribution of medicinal drugs and other medicinal products in the UK. It generally requires a marketing authorization or licence before a product may be distributed. The Act deals with the testing, sale, supply, packaging, labelling, prescribing, dispensing by pharmacists, and selling in shops of medicinal products. Many controlled drugs are also medicinal products and must thus satisfy the requirements of both the MDA and the Medicines Act 1968.

The MDA prohibits the importation or exportation of a controlled drug unless it is exempted by regulation or it takes place under the proper licence. The offences, however, are actually under the Customs and Excise Management Act 1979 which acts together with the MDA to prohibit unauthorized importation or exportation of controlled drugs. The offences under the Customs and Excise Management Act 1979 are usually charged and prosecuted by H.M. Customs and Excise rather than by the police and Crown prosecutors. In 1997, a total of 1,741 people were dealt with for these offences, 68% of which involved cannabis (31% were dealt with by compounding and of those found guilty by the courts, 79% were sentenced to immediate custody).

Part II of the Criminal Justice (International Co-operation) Act 1990 controls the manufacture and supply of certain precursor chemicals which can be used in the manufacture of illicit drugs. Manufacture or supply contrary to the Act is a trafficking offence for the purposes of the Drugs Trafficking Act 1994. Regulations may be made dealing with notification of exports, record-keeping and the supply of information.

The Drug Trafficking Act 1994 was adopted to enable the UK to meet its obligations under the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1998 (The Vienna Convention). It creates offences in connection with laundering and handling of the proceeds of drug trafficking, and introduces confiscation measures. The burden of proof is placed on the defendant to prove that the assets were lawfully acquired and applies the civil standard of proof on the balance of probabilities. The MDA does not distinguish between trafficking and non-trafficking offences. Rather, this distinction is made in the Drug Trafficking Act 1994; the main consequence of designating an offence as a trafficking offence is that the confiscation provisions apply. In addition, an offender is liable for a third trafficking offence involving a Class A drug to a minimum penalty of seven years imprisonment under the Crime Sentences Act 1997.