Transcript Treatment alternatives to prison / punishment Brendan Hughes

Legal aspects of cannabis in the EU and
Norway
Brendan Hughes
Lisbon, 2 October 2007
Presentation
1. European Legal Database on Drugs:
structure and contents
2. What the laws say: consumption,
possession, quantities, treatment
alternatives, driving, workplace…
3. What happens: some sentencing statistics
National laws - European Legal Database on
Drugs (ELDD)
• ELDD is a free database on a public website.
• Specific objectives :
• Availability and updating of the relevant texts of drugrelated legislation in the EU Member States;
• Country Profiles, brief Topic Overviews and in-depth
Legal Reports show research and analysis on selected
subjects within the drug legislation sphere, in order to
exchange good practices and inform policymakers.
• Legal Correspondents:
• National experts, probably from a Ministry
• Appointed by each country
• Validate the content of the ELDD
Classification – UN Narcotics Convention 1961
Schedule
Guidelines for included substances
Cannabinoids
I
Those which are, inter alia, having, or convertible into substances
having, “a liability to abuse comparable to that of cannabis,
cannabis resin, or cocaine”.
Cannabis and
resin;
Extracts and
tinctures of
cannabis
II
Substances 1. “Having addiction-producing or addictionsustaining properties not greater than those of codeine but at
least as great as those of dextropropoxyphene; or
2. Convertible into a substance having addiction-producing or
addiction-sustaining properties with an ease and yield such as to
constitute a risk of abuse not greater than codeine.”
III
Preparations which are intended for legitimate medical use, and
which the WHO considers not liable to abuse and cannot produce
ill effects, and the drug therein is not readily recoverable.
IV
Substances that are particularly liable to abuse and to produce ill
effects, and such liability is not offset by substantial therapeutic
advantages not possessed by substances other than drugs in
Schedule IV.
Cannabis and
cannabis resin
Classification – UN Psychotropics Convention 1971
Schedule
Guidelines for included substances
Cannabinoids
included
I
Substances whose liability to abuse constitutes an
especially serious risk to public health and which have
a very limited, if any, therapeutic usefulness
THC, specified
isomers and their
stereochemical
variants
II
Substances whose liability to abuse constitutes a
substantial risk to public health and which have little to
moderate therapeutic usefulness
Delta-9-THC and its
stereochemical
variants /
Dronabinol
III
Substances whose liability to abuse constitutes a
substantial risk to public health and which have
moderate to great therapeutic usefulness
IV
Substances whose liability to abuse constitutes a smaller
but still significant risk to public health and which have
a therapeutic usefulness from little to great
Government reports on cannabis in 100 years
• Cannabis is not harmless
• The dangers have been overstated
• Civil sanctions, fines, compulsory health
assessments should take the place of
criminal penalties
Classification systems – national
• May be classed by
•
•
•
•
Narcotic or psychotropic (echoing UN),
level of harm,
medicinal use or not
links to punishment or not
Some countries have one table, some have 12!
Distinctions between cannabis and other drugs
• Classification by law
• Cyprus, Netherlands, UK (unique among 17 Sch.IV
substances)
• Specific exemption to the law
• Ireland, Belgium, Luxembourg, Greece (cultivation)
• Exception by guidelines
• Denmark (prosecutors), Germany (Constitutional Court), UK
(police)
• Exception due to judicial discretion
• The nature of the substance is one of the criteria (together
with the quantity, previous criminal records, and other
circumstances) considered by prosecutorial or judicial
discretion
What offence; use, or possession for use?
Slightly academic distinction (can’t use without
possessing), but:
• UN asks to criminalise possession, not use
• Possession always retains the possibility of
trafficking
• Positive blood or urine test – criminal charge?
• Police suspect a crime being committed – what
extra powers?
Drug use/consumption
– an offence?
Criminal offence
(7)
Non-criminal
offence (4)
Not an offence
(15)
Drug possession
Various combinations of the following main
factors:
• Possession /
• of a certain amount /
• with intention /
• of a certain drug /
• by an addict.
Possession of drugs for
personal use
The legal status
Possession of drugs
for personal use
Penalties in Laws
Criminal, prison
possible (14)
Cannabis – non-criminal/
no prison;
Other drugs – criminal,
prison possible (4)
Non-criminal / no prison
(8)
Possession of drugs
for personal use
Penalties in Laws and
Guidelines
Criminal, prison
possible (11)
Cannabis – non-criminal/
no prison;
Other drugs – criminal,
prison possible (7)
Non-criminal / no prison
(8)
Hypothetical penalties: possession of small quantity of drugs for
personal use, without aggravating circumstances
Fines for possession of cannabis for personal use:
BELGIUM
1st €75-125 ; 2nd €130-250 ; 3rd €250-500
DENMARK
1st – fine; 2nd €40 for 0-10g / €67 for 10-15g /
€135 for 50-100g
SPAIN
(in a public place) between €301 and €30,000
or suspension of the driving licence
IRELAND
1st €63; 2nd €127; 3rd €317 or up to 1 year prison
LUXEMBOURG
€250- €2500
Source: EMCDDA 2004, Illicit drug use in the EU; Legislative approaches
Recent legal changes
•
•
•
•
2000 – Portugal (drugs)
2001 – Luxembourg (cannabis)
2003 – Belgium (cannabis)
2004 – UK (cannabis)
•
•
•
•
2004 – Denmark (drugs)
(2005 – Netherlands)
(2005 – France)
2006 - Italy
The role of the quantity in the prosecution of
drug offences – April 2003
• Should be an aid to distinguish between personal use
and trafficking
• “Small” (defined) / “small” (not defined) / not mentioned.
• Defined by street value, doses, weight, active principle…
• Different status / consequences of offences
• 2006: Italy / Bulgaria / UK
• 2006: UK Home Office: “There are difficulties in
establishing prescribed amounts which are universally
applicable and appropriate.”
• There is no right answer!!
Treatment alternatives to conviction or punishment
• Usually an option: occasionally obligatory for a
first offence.
• Some countries have 1, others may have 5
• Depends on type of offence
• Not only a drug consumption/ possession offence: can be used for
property crime or any “minor” offence – avoid imprisoning an
addict.
• Depends on type of offender
• In Europe, approximately twice as many alternatives for problem
drug users (“addicts”) as for simply “users” (occasional users).
• Austria, Germany – occasional cannabis users
were blocking “real” treatment places…
Young people and drugs - October 2003
• Minor as victim; selling to minors,
encouraging minors, selling near schools or
sports facilities.
• Minor as dealer; age of criminal responsibility,
lower penalties or diversion, responsibility of
parent
• Minor as user; almost always education or
treatment.
Drugged driving – Tolerance
Zero (7)
ET, FR, LI, PL, SI, SK, SE (but no liability
if in accordance with prescription)
Impairment (13)
DK, ES, GR, IE, IT, CY, LU, HU, NL,
AT, PT, UK, NO
2-tier system (4)
BE (Any substance causing
impairment, but 7 subject to zero
tolerance; both criminal offences)
CZ (Impairment is criminal, trace
(zero tolerance) is non-criminal.
Complex!)
DE (Any substance causing
impairment, but 7 subject to zero
tolerance; former is criminal, latter is
non-criminal)
FI (Any substance causing
impairment, but non-prescribed
products are subject to zero
tolerance; both are criminal)
Testing in the workplace
• Normally covered by general health and safety,
privacy, and/or data protection laws
• 3 countries have adopted specific legislation on
drug testing in the workplace:
Finland, Ireland, and Norway.
• In Italy, the main drug law contains an article
addressing specifically drug testing in the
workplace.
Testing in the workplace – on what basis?
•
•
•
•
•
•
Safety risk – BE, DK, FR
When necessary – DK, NO
Proportionate – DK, NO
When justified – BE, NL, NO
When reasonable – IE, NL
When suspicion – LV, LU, FI
• Germany; Federal Labour Court considered that armed
guard did not justify regular blood tests without cause
Testing in the workplace - who can be tested?
• Job applicant: BE (where drug use presents a
safety risk), FR, LV, NL (prohibited for all
applicants), SK, FI, NO (when necessary)…
• Employee: FR, FI, IR, NO…
However…
Existence of an option in the law is no indication
of actual frequency of use by the judiciary.
What really happens?
Prosecution of drug users in Europe (2002)
• Questioned 10 experts in each country –
“what is likely to happen?”
• Police, prosecutor, court stages
• Most countries look to deal with possession of
small amounts by police or prosecutor, not in
court
• Retail sale will usually be prosecuted, unless
there is a close link to addiction
NEW PROJECT - Implementation of laws
• What’s written in the law vs. what actually
happens; “Liberal / repressive countries”
• EMCDDA monitors entry to criminal justice system
(DLOs). What about exit; police warning, fines,
prison, diversion, case closed?
• Diversion to treatment; how many are actually
used?
• National statistics of “CJS outputs” not always
kept, or clear.
• Subject of Selected Issue, November 2009
UK – Disposal of drug possession offences by type of
drug, England and Wales, 2004
Source: Home Office Statistical Bulletin, 23/05
Portugal – Commissions for Dissuasion of Drug Abuse
Rulings of 3192 cases in 2005 (from 6260 started)
Offences
3 500
3 000
Provisional Suspension,
non addict.
2 500
2 000
Provisional Suspension
with treatment.
1 500
1 000
Punitive.
500
Aquittal.
2001
2002
2003
(2.º semester)
Source: NFP report, 2006
2004
2005
Suspension of the
ruling/ execution of
the sanction.
Portugal – Commissions for Dissuasion of Drug Abuse
Type of drug involved in administrative offences by year
Offences 4 500
4 000
3 500
3 000
2 500
2 000
1 500
1 000
500
2001 (2.º semester)
Heroin
2002
2003
Cocaine
Hashish
2004
2005
Polydrugs
Source: NFP report, 2006
Sweden – Convictions and sanctions for drug
offences in 2005
• almost 19 200 persons were convicted of drug
offences in 2005
• 48% use, 30% possession, 4% smuggling and 5%
distribution.
• 73% minor offences, 24% non-minor offences, 2%
serious offences
• 36% cannabis, 30% amphetamines…
• 56% awarded fines (by prosecutor or court), 19%
waivers of prosecution, 16% prison sentences
Source: NFP Report 2006
Thank you for listening
Brendan Hughes
http://eldd.emcdda.europa.eu/