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Smoke-screen over cannabis

1 August 99

Discussion of Lord McCluskey's address to the Society's 50th anniversary conference, suggesting a Royal Commission to look at sentencing of drug offenders

by Bill Greig

For newspaper people a “top judge in drugs shocker” headline is a godsend.  A quick phone round the renta-quotes and his remarks can suddenly become raging controversy.

Lord McCluskey has found out that attempting to create cool, rational, logical debate on the sentencing of drugs offenders is next to impossible.  The passions raised are too great, the stances too fixed, and the language used too emotive.

Nearing the end of his distinguished career, Lord McCluskey chose the Law Society of Scotland’s 50th Anniversary Conference to suggest the setting up of a Royal Commission to look at this issue.

His simple point was that if someone was found guilty of rape then the sentence was likely to be six years in prison.

“If you import cannabis you get 25 years – is importation of cannabis four times as bad as rape?”

He continued:  “There is a vast amount of evidence that suggests cannabis is not a danger to life.  It’s certainly not the same kind of crime that rape is.

“And do the penalties we impose deter?  The statistics tell us absolutely plainly that they do not.”

Decriminalisation of cannabis was a subject long avoided by politicians.  However, Lord McCluskey stressed that he was not advocating decriminalisation or legalisation of cannabis.

“I seek only to stimulate discussion as to what the courts should be doing about the tiny fraction of drug users who, for one reason or another, get caught by the police and who, incidentally, we all know are very, very unlikely to be Mr Bigs of popular myth.”

Lord McCluskey also said he wanted a Royal Commission to look at the increasing numbers of women committing violent crime and women being used as drug couriers.

As Home Affairs Minister, Henry McLeish had said he wanted to reduce the female prison population by half.

“From a practical point of view as a judge what do I do if I have two accused before me, a man and a woman, guilty of the same offences?  Do I say that the man can go to prison for six years but that the woman can do just three years,”  said Lord McCluskey.

Although his remarks made headlines, there was certainly not the outcry which could have been expected some years ago.

The cannabis debate has moved forward.  Indeed it could be said that Lord McCluskey is only attempting to push the United Kingdom into the international debate.  All democracies are slowly coming to the conclusion that the prohibitionist approach to drugs if failing.

Despite high profile seizures of drugs and heavy sentencing drug use appears to be ever increasing.

The growth in recreational drugs like ecstasy and amphetamines, for example, has become part of club culture.

The use of cannabis for medicinal purposes has become an important issue.  Is a multiple sclerosis sufferer using cannabis to alleviate the discomfort of a dreadful and progressive disease a criminal?

One of the great problems in the balanced reporting of comments such as those made by Lord McCluskey is the interpretation of the words used.  Decriminalisation is not legalisation.  Yet, there is no consensus on what decriminalisation really means.  The most accepted definition is that it refers to a reduction of penalties for possession of small amounts of cannabis to penalties other than imprisonment.

These penalties, rather in the way motoring offences are handled, mean that those fined do not get a criminal record.

However, Lord McCluskey appears to have gone beyond this when he uses the example of those importing large quantities of cannabis.

The problem here for the authorities is that while there might be some cannabis “importers” who restrict their trading to that trade, in the main drug dealers are like warehouses in that they supply a broad range of drugs.

Money from cannabis sales can and does help fund purchase and distribution of heroin and cocaine.

If that is the case then it is in the interests of the dealers to attempt to use “safe” cannabis as an entry to harder and more addictive drugs.

Some proponents of cannabis legalisation argue that by taking it out of the equation it would leave only those willing to deal in hard drugs and break the link.  Public opinion in Scotland is difficult to judge but recent research in the United States and Australia has suggested increasing support for decriminalisation and even legalisation.

In Australia, household surveys carried out for the National Campaign Against Drug Abuse suggested that support for legalisation was variable.  A report on the surveys said:

“In 1988, 26% of those surveyed agreed that “Smoking of marijuana should be legalised,” in 1991, 38% agreed with the proposal, but in 1993 only 25% agreed with “the personal use of marijuana being legal” (Advisory Community on Illicit Drugs 1993).

“A national telephone survey conducted at the same time found that between 52% and 55% of respondents believed that growing cannabis for personal use, possessing cannabis for personal use, using cannabis, and possessing implements for its use should be legal, which reflected greater support for this option than had previously been found in opinion surveys.  Males were more likely than females to support legalisation of activities associated with the use of small amounts, and support for cannabis legislation generally was strongest among younger respondents.”

If these figures also applied to the United Kingdom then it suggests that at least the setting up of the Royal Commission called for by Lord McCluskey would be unlikely to result in a public outcry and perhaps more importantly be less of a potential vote-loser to nervous politicians.

Although the Government has taken a tough line on drugs policy there is a backbench sympathy for a fresh outlook at the present legislation.  A Cabinet sub-committee is looking at drugs issues in crime, health and social inclusion.

The Liberal Democrats who are in coalition with Labour in the Scottish Parliament have as official policy a call for a Royal Commission.  Scottish Justice Minister Jim Wallace, who is also Deputy First Minister, has publicly supported Lord McCluskey on the issue.  The Scottish National Party which would not support decriminalisation would not oppose a Royal Commission.  A party spokesman said:  “One idea we pioneered during the election is the concept of specialist drugs courts that would be responsible for sentencing drug users and primarily be focused on rehabilitation.”

However, the Conservatives, who made the harsh treatment of drugs dealers a centrepiece of their Scottish election manifesto, are opposed.  Scottish party leader, David McLetchie, himself a lawyer, said:  “As anyone knows, a Royal Commission is rarely an effective way of resolving a contentious issue.

“A serving judge should refrain from commenting on matters of public policy that reflect the day to day exercise of their job as a judge.”

Lord McCluskey counters by arguing “If serving judges can’t say it and serving police officers can’t say it, who’s left to say it apart from the policitians?  And they aren’t saying anything about it at all.”

It may be that Lord McCluskey’s words will be ignored, but he has highlighted a debate which will continue whether or not the politicians want one.