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The problem of drug misuse: the Portuguese alternative

13 December 10

Fuller version of the article in the November 2010 Journal on the Portuguese experience of decriminalising drug possession

by Douglas Thomson

Those members of the profession who have over the past years chosen to take holidays amongst the manicured golf courses and long sandy beaches of the Algarve, are I suspect largely unaware that, until relatively recently, Portugal experienced a very large, and significantly increasing number of its young people taking heroin and other drugs, and that its imprisonment rates, always close to these of England and Scotland, continued to increase at a similar rate throughout the last decade of the 20th century. Rates of reported heroin use, of drug related HIV infections and of drug related deaths continued to increase in a pattern familiar to that of Britain. The social and economic cost to the state of having a significant percentage of its young persons unable to work or imprisoned as a result of drug misuse became intolerable. Portugal, however, opted for a route entirely opposite to that of the United Kingdom.

An elite commission, the Comissão para Estratégia Nacional de Combate à Droga (Commission for a National Anti-Drug Strategy) was set up in response to concerns about the rapidly rising use of drugs, principally heroin, in the 1990s, and delivered its report in 1998. It was estimated at the time that the number of drug users in Portugal was around 100,000 out of a total population of around 10 million (1). The state recognised that imposing criminal sanctions upon drug users appeared to be doing little to address an increasing use of drugs amongst the poorest and most marginalised in society, and questioned whether another approach might be preferable.

The Commission’s recommendation, specifically designed with the aim of reducing drug abuse and usage, was a radical one, namely decriminalisation of the purchase, possession and consumption of all drugs for personal use. This was accepted by Parliament, and with effect from 1 July 2001, when Law 30/2000 came into force, all matters relating to the possession and use of drugs for personal consumption ceased to be a matter for the criminal courts. Previously possession and acquisition of small quantities were punishable by penalties of up to three months in prison or a fine. For amounts that exceeded an average person’s three-day supply, the penalty was up to a year in prison or a fine.

At present, Portugal remains the only state within the EU to operate a specific policy of decriminalisation. While some states such as Holland have elected not to penalise possession of certain drugs for personal use, they have not expressly removed all criminal sanctions in respect of drug possession from their domestic law.

How does decriminalisation operate in practice?

At the outset, it must be noted that decriminalisation does not mean “legalisation”; drug use remains prohibited and subject to police action. However, in terms of article 2(1), the consumption, acquisition and possession for one’s own consumption of certain listed substances constitute “an administrative offence”. No distinction exists similar to the three classes of drugs contained in sched 2 to the Misuse of Drugs Act 1971 exists in Portugal, nor is it required for the offence to be solely administrative that consumption be in private. The phrase “for one’s own consumption” is defined by article 2(2) as a quantity not exceeding “the quantity required for an average individual consumption during a period of ten days”. Possession of a larger quantity than that remains criminal, and may be prosecuted as trafficking in a manner broadly analogous to the well known provisions of s 5(3) of the 1971 Act. In Portugal, though, supply of drugs to a minor or a person with a mental illness is expressly treated as an aggravating factor resulting in sentence of four to 12 years’ imprisonment.

The police remain involved in the apprehension process, although they may not arrest a person for possession alone. Where a person is apprehended and found to be in possession of, or using, one of the listed substances, the matter is referred to the local commission for dissuasion of drug addiction, which has extremely wide powers. Each of Portugal’s administrative districts operates at least one commission, comprising three members, one appointed by the Ministry of Justice and two jointly appointed by the Minister of Health and the Coordinator of Drug Policy. Following apprehension, a citation is issued requiring the offender to attend within 72 hours.

Where the consumer of drugs is considered not to be addicted, the commission may issue a warning, a non-pecuniary penalty or, as a last resort, a fine of a sum between 25 euro and the national minimum weekly wage. Where the commission, after investigation, finds the offender not to be addicted, and it is a first offence, the commission may provisionally suspend proceedings without imposing any sanction. Sanctions may be suspended conditional upon an offender seeking treatment; where an offender accepts addiction, whether or not they have prior offences, if they agree to accept treatment then any sanction imposed will be contingent upon them completing treatment. Where the evidence before the commission discloses supply or an intent to supply, then their role is at an end and the matter is referred to the criminal court. Proceedings before the commission are expressly non-judicial, formal dress is not worn, all parties sit at the same level, and confidentiality is maintained.

To comply with the offender’s ECHR article 8 right to respect for home life (2), the offender may request that the citation be not sent to his home address. In terms of article 10, the commission must hear from the offender and gather information necessary “in order to reach a judgment as to whether [the offender] is an addict or not, what substances are consumed, the circumstances in which he was consuming drugs when summoned, the place of consumption and his economic situation” (emphasis mine). The offender may request a medical examination and/or the attendance of a therapist of his choice. The emphasis in proceedings is on health and treatment, not upon the illegality of drug use itself.

Article 17 further widens the sanctions available to the dissuasion commission where an offender is found to be addicted. They may have their right to practise certain professions (including law, medicine and driving a licensed taxi) suspended, may be banned from visiting high-risk locales or associating with named individuals, and foreign travel may be prohibited. In addition, they may be required to report periodically to the commission demonstrating their ability to avoid ongoing drug misuse, an obligation broadly analogous to that required in Scotland where a court imposes a drug treatment and testing order, and in some circumstances certain public benefits may be terminated. In exercising its powers, the commission is given a very wide discretion as to which factors it may consider most significant; these may include whether drug use is occasional or habitual, whether use is private or public, and what type of drug is being used. (3)

What sanctions are imposed, and upon whom?

Contrary to the fears of those who predicted that Portugal would become a haven for drug tourism, with the youth of the EU decamping en masse to the land of drug liberalism, virtually all reported offenders are Portuguese or from Portuguese colonies. In 2005, which was an entirely typical year, 5,824 individuals were proceeded against (4). Of the 5,533 from the EU, no fewer than 5,461 (93.7% of the total) were from Portugal. Of the 291 non-European offenders, 228 (3.9% of the total) were from the five Lusophone countries of Brazil, Cape Verde, Guinea-Bissau, Angola and Mozambique; in contrast, the total combined number from Germany, France, Spain and the UK was less than 60.

The bulk of cases reported to the commissions relate to possession and use of cannabis, with only a small minority involving possession of heroin or cocaine. Between July 2001 and October 2007 over 39,000 cases were considered by the commissions; 62% involved cannabis, 18% heroin, and 5% cocaine. Little over 6% of offenders were female, and 70% of offenders were under the age of 20 (5). It may be significant to note that the percentage of those reported for cannabis use increased from 47% in 2001 to 65% in 2005; over the same period referrals for cocaine remained stable, while heroin referrals dropped from 33% to 15% (6). As the total number of annual referrals increased by little over 13%, heroin referrals appear to have dropped from over 700 in the first six months to under 900 per year.

Figures produced by the Instituto da Droga e da Toxicodependência de Portugal (IDT) on the national situation in 2006 and 2007 indicate that in most years over 80% of rulings involve suspended sanctions, with only around 15% of cases resulting in the imposition of an immediate sanction, most of these involving orders requiring offenders to report regularly to designated locales. The increased use of therapeutic communities, detoxification centres and halfway houses, combined with a huge increase in the use of drug substitution treatment (up by 147% between 1999 and 2003), may indicate one reason why so many sanctions are suspended.

What effects has decriminalisation had on drug consumption?

In comparing reported rates of drug use, it is important to bear in mind one caveat that applies almost universally, and one particular to Portugal. Self-reporting of drug use is notoriously inaccurate, as for many reasons persons, especially those of school age, may feel under pressure to answer in a particular way regardless of its accuracy. Information in respect of drug use by youths is collected as part of the European School Survey Project on Alcohol and Other Drugs (ESPAD). This information relies, of course, on school pupils accurately reporting their own drug use. It is therefore highly vulnerable to changes that arise from the willingness to report drug use, not just changes in actual drug use, and the effect of decriminalisation on self-reporting is not clear.

In addition, there appears to be some anecdotal evidence of different police practices in Portugal regarding the issuing of citations. Some officers, possibly more commonly older ones who served in the period prior to July 2001, seem to regard the issuing of citations that do not carry any criminal sanction as a wholly pointless exercise when they may see the offender again the next day once more under the influence of drugs. Others, however, seem to perceive the social importance of referring addicts for education and treatment, consider such options preferable to propelling drug users into the criminal system, and may thus be more inclined to issue citations, believing the likely outcome to be more effective in controlling addiction (7). Whichever perception is correct, the number of proceedings issued annually has continued to increase gradually.

Does this mean that drug use in Portugal is on the increase? Several statistics appear to point towards the opposite conclusion. Reported rates of drug usage, after significant increases, are now declining. In 2001, the percentage of persons aged 13-15 reporting drug use was 14.1%; by 2006 it was 10.6%. Among older students, the figures were more striking. Between 1995 and 2001 the number of persons aged 16-18 reporting drug use increased from 14.1% to 27.6%, but by 2006 had declined to 21.6%. Reported usage of all “common” drugs declined over this period, although there was a very small instance of reported use of GHB, ketamine and methadone, none previously reported, in each case of around 1%.

Perhaps unsurprisingly, this decline is not found in the 19-24 age group, they being the group a larger proportion of whom had already begun consuming drugs before decriminalisation; however, younger people growing up since decriminalisation appear less attracted to illicit drug use than their elders who grew up when possession and use was criminalised. The reported use of heroin in particular is reported as having declined by more than a quarter, from 2.5% to 1.8%.

These statistics, based as they are on self-reporting, may in themselves not be wholly convincing, but in respect of more seriously addictive drugs, other statistics demonstrate a similar picture. Between 2003 and 2006 there was a marked decline in the number of convictions for supply-related offences (8). In 1999, between the original report and the passing of Law 30/2000, Portugal had the highest rate of HIV amongst intravenous drug users in the European Union. This has changed dramatically. The number of new reports of HIV and Aids among intravenous drug users has declined from close to 2,000 cases in 2000 to around 600 in 2006. Within the non-drug user group, the decline in the same period was from around 1,700 to 1,400 (9). While less notable, there has also been a decline in new reported infection of hepatitis B and C.

Drug-related deaths have also decreased significantly. Between 1987 and 1999 drug-related deaths rose from fewer than 25 per year to 369, of which 350 were opiate-related (10). This trend has changed completely since decriminalisation; between 2000 and 2006 the number of deaths attributable to opiates reduced from 281 to 133, while the total number of drug-related deaths was 290. The figures for 2005 and 2006 were slightly higher than those of each of the three preceding years, yet still demonstrated a drop of over 20% from that of six years previously. Post-mortem toxicology tests demonstrate a similar pattern. These have become considerably more regularly carried out since 2000. In that year, out of 1,255 post mortems, 318 (25.3%) showed the presence of drugs. In contrast the percentages for 2004, 2005 and 2006 were 9.4%, 10.0% and 9.4%. Evidence from several different sources all seems to point to decreasing drug use in Portugal since decriminalisation.

How does Portugal compare with other European countries?

Levels of drug use in Portugal are amongst the lowest in the EU; the prevalence of cannabis use is the lowest of all EU states, while figures for cocaine and heroin are significantly below the EU average; in contrast drug prevalence rates in the UK are consistently at or near the highest in Europe.

The relationship between drug use and crime, particularly acquisitive crime, is not in itself controversial, although questions of cause and effect, and the importance of external social factors do make it more difficult to draw universal conclusions. However, at a time when imprisonment rates in Scotland, England and Wales sit at around 150 persons per 100,000 (11), Portugal now imprisons 104. Comparing these present figures with those from 2004 seem to show that, during the period when the UK rate increased by over 10%, the Portuguese rate declined by 15%. Obviously these figures have to be placed in the context that, absent specific details of all crimes proceeded against, comparison may well not be on a like-for-like basis.

In 1999, the number of drug related deaths in Scotland was 291 (12). This figure has continued to rise, with the most recent reported figures for 2008 and 2009 being 478 and 479 respectively; indeed, the total number of drug-related deaths in the UK in 2009 was 2182, an increase of 11.8% on the figure for the previous year (13).

The key question is of course whether the apparent Portuguese experience of reducing drug use amongst the young is unique, rare, or merely reflective of a more widespread European pattern operating also in countries that criminalise drug possession. Here, unfortunately, evidence is not conclusive. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) is tasked with compiling and coordinating drug statistics across all EU states, but as it has no statutory authority, and as many of the poorer states do not regard the collation of such statistics as a pressing social priority, data from individual states is often not directly comparable, either in terms of periods studied or research methodology. However, in its 2007 annual report, the EMCDDA feels able to conclude that drug use has “stabilised in most areas”. NHS statistics for England & Wales noted a marked increase in reported drug use until 2004-05, followed by a “levelling off” in the next three years (14). In Scotland, while the rate of hospital discharges with a diagnosis of drug misuse has increased, the pattern appears to mirror that of Portugal; the increase is in the “25 years and over” group, with a decline noted in the younger groups (15). Due to a change in the manner of data collection for the Scottish Drug Misuse Database in April 2006, it is not yet possible to identify particular long-term trends of drug use in Scotland with real certainty.

Scotland cannot, of course, develop its own policies on criminalisation, prosecution or decriminalisation of drugs; any changes to the Misuse of Drugs Act 1971 are specifically reserved to Westminster in terms of sched 5 to the Scotland Act 1998. Sentencing, though, is an area in which Scotland retains its autonomy, and it might be observed that, albeit run through the auspices of the procurator fiscal’s office, small fixed monetary penalties are not dissimilar in effect to the Portuguese administrative fines. Equally, while there has of course to be a judicial determination, and review hearings take place within a formal court setting, the operation of a successful drug treatment and testing order may in practice not be dissimilar to the supervision and treatment imposed by a dissuasion commission. The sanction of imprisonment, both at first instance and in respect of non-compliance, remains open to a Scottish court, although in practice sentences of imprisonment for charges of simple possession alone are not common.

Looking to the future

While culturally and climatically different, Portugal and the United Kingdom are both on the fringes of Europe, each having a long Atlantic coastline that has many small inlets and is not easy to police. Each saw growth in drug use, in HIV infections, and in drug-related deaths throughout the last years of the 20th century. Each country has suffered economically as a result of the increase in drug use, particularly amongst the young. One continues to regard this as a criminal justice, as well as a social/medical problem, but the other expressly does not.

The fear expressed by opponents of the reforms was that Portugal would become a haven for drug users from all over Europe, and that decriminalisation would result in a vast increase in drug misuse, with planeloads of users turning up safe in the knowledge that they could not be arrested or jailed. A BBC report on 22 January 2004 quoted Fernando Negrão, a former police chief and the head of the Institute for Drugs and Drug Addiction as saying “There were fears that Portugal might become a drug paradise, but that simply didn’t happen” (16). It seems reasonable therefore to conclude that the statistics provided earlier on nationality of offenders are not as a result of any police policy not to apprehend foreigners or tourists, and that there is no meaningful level of “drug tourism” into Portugal. Over nine years after the change in law, there is no meaningful internal pressure for a reversion to previous practice – decriminalisation is here to stay.

So, have the 2001 reforms directly caused, or materially contributed to, the reduction in drug use in Portugal? To both liberals and libertarians the answer is an unqualified “yes”. The Guardian, perhaps unsurprisingly, described the results of decriminalisation as a “success story” in an article in September 2010 (17), and a white paper written by American lawyer Glenn Greenwald and published by libertarian organisation the Cato Institute in 2009 was likewise wholly positive, concluding that “The Portuguese have seen the benefits of decriminalization… [which] has enabled a far more effective approach to managing Portugal’s addiction problems and other drug related afflictions… the Portuguese model ought to be carefully considered by policymakers around the world” (18).

Equally unsurprisingly, conservative voices such as Peter Hitchens of the Daily Mail remain less receptive to the suggestion that the policy has been successful. Mr Hitchens, whose views are not without support from the Centre for Policy Studies (19), draws attention to the fact that persons in Portugal are still prosecuted for supplying drugs, to the use of drug treatments and to the rarity of prison sentences being imposed for possession in the UK, although his confident statement in November 2009 that “in every country where the laws have been relaxed, drug use has increased” (20) is contradicted by the evidence here, and appears not to accord with recent studies into the effects of the relaxation of heroin laws in Switzerland.

There does seem, from the statistics above, to be fairly strong evidence that since decriminalisation drug users in Portugal are more willing to come forward and access medical services; the marked reduction in drug-related deaths and in new cases of HIV certainly seems to point to an increased willingness to submit to medical treatment at an early stage. Money previously spent on prosecution and incarceration may now be spent on medical treatment, which carries with it certain social benefits. However, reports on the effects of the liberalisation policy do not provide much if any evidence of any changes in crime rates for acquisitive offences, so it cannot be said with any certainty from this research that decriminalisation has reduced non-drug-specific offending; more information on this than is found in some recent studies would be welcome.

Less tolerant policies in respect of drug possession likewise demonstrate at best mixed results. The United States of America operates fairly punitive drug policies, yet not only does it imprison a proportion of its population almost five times higher than that of the UK, a report in “Science Daily” on 1 July 2008, comparing data from 17 countries in five continents, revealed that “despite its punitive drug policies the United States has the highest level of illegal cocaine and cannabis use”. Indeed, cocaine use in the prohibitive United States was reported at a level four times higher than that in Colombia. On the other hand, expressly punitive policies in Singapore, which appear to have either effectively eliminated drug use or to have pushed it wholly underground, might be considered somewhat unworkable in a more liberal democracy where, for example, failing to flush a toilet after use (21) and the selling of chewing gum (22) are not criminal offences.

In addition, while evidence seems to show quite clearly that drug use is a much less popular choice for the young of Portugal than it was a decade ago, it is not wholly clear that Portugal is in practical terms bucking a European trend. Were there solid evidence of a reported significant reduction in drug use in Portugal, as against significant increases elsewhere in the EU, then it might be open to the impartial observer to conclude that the reduction was the effect of the action of decriminalisation. Instead, evidence collated by the EMCDDA and fairly recent NHS research both seem to show that, after many years of increase, drug use may, even temporarily, have peaked in Europe some years ago, and remains relatively constant now. It must also be noted that Portugal is one of the less populous states of the EU, and that social trends are derived from analysis of a much smaller population base than Britain, Spain or Germany. Thus, while it may yet prove to be the case that decriminalisation has produced a measurable decrease in levels of drug use and of crime committed by drug users, the evidence is not yet conclusive.

Despite this, I would still submit that relevant authorities in Britain should continue to pay particular heed to developments in Portugal, especially with regard to the relative expense of supervision and treatment. In straitened economic times where cuts in public spending take place across the board, it behoves the Crown and the legal profession to study all viable alternatives to the expense of prosecuting and sometimes imprisoning those more in need of help.

Douglas Thomson is a solicitor advocate and a consultant with McArthur Stanton, solicitors, Dumbarton

Notes

(1) Evaluation of the National Study for Combating Drugs, seminar 15 December 2004, Belem Cultural Centre, Lisbon.

(2) European Convention on Human Rights, article 8(1):  “Everyone has the right to respect for his private and family life, his home and his correspondence.”

(3)  Article 15(4) of Law 30/2000.

(4) Source: 2005 Annual Report of Instituto da Droga e da Toxicodependência de Portugal (pub 2006, p 99).

(5)Trigo de Roza, A (2007), "Presentation: Conference on quasi-coerced treatment and other alternatives to imprisonment", paper presented to conference in Bucharest, quoted in December 2007 briefing paper by Caitlin Hughes and Alex Stephens, pub Beckley Foundation Drug Policy Programme.

(6) IDT Annual Report, 2006.

(7) For more detailed analysis, see G Greenwald, Drug Decriminalization in Portugal, pp4-5, pub at www.cato.org/pubs/wtpapers/greenwald_whitepaper.pdf

(8)  IDT Annual Report 2006 (pub 2007), p53.

(9) IDT Annual Report 2006 (pub 2007), p26.

(10) Mirjam van het Loo, Ineke van Beusekom, and James P Kahan, Decriminalization of Drug Use in Portugal: The Development of a Policy (pub RAND Europe, Leiden, 2002).

(11)  World Prison Brief, International Centre For Prison Studies, King’s College, London.

(12) General Register Office Statistics, found at http://www.gro-scotland.gov.uk/files1/stats/drd06t1.pdf

(13) Report by St George’s, University of London, pub 24 August 2010, found at http://www.sgul.ac.uk/media/latest-news/drug-related-deaths-in-the-uk-continue-to-rise 

(14) NHS Information Centre Statistics on Drug Misuse 2008. The statistical bases used in the 2009 report are different, but where comparison can be made, the pattern of the preceding three years seems to be maintained.

(15) Drug Misuse Information Scotland Statistics 2009.

(16) http://news.bbc.co.uk/1/hi/world/europe/3421523.stm

(17) http://www.guardian.co.uk/politics/2010/sep/05/portugal-decriminalising-personal-drug-use

 (18) http://www.cato.org/pubs/wtpapers/greenwald_whitepaper.pdf

(19) http://www.cps.org.uk/cps_catalog/the%20phoney%20war%20on%20drugs.pdf . The writer, though, does not concur in Mr Hitchens’ analysis of this paper.

(20) http://hitchensblog.mailonsunday.co.uk/2009/11/arguments-against-legalising-drugs.html 

(21) Illegal in terms of the Environmental Public Health (Public Cleansing) Regulations (Cap 95, Rg 3, 2000), reg 16.

(22) Illegal in terms of the Sale of Food (Prohibition of Chewing Gum) Regulations (Cap 283, 2004, rev ed).
 

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