On Monday 18th July, the Home Office released a new drugs policy white paper titled Swift, Certain, Tough. New Consequences for Drug Possession. Promising to ‘drive down’ drug use by targeting recreational users, it set out a new rulebook for how drug possession offences should be dealt with in England and Wales.
The paper proposes the introduction of an escalatory three-tier framework. The first time the police catch someone with drugs, that person can expect to pay for a drugs awareness course; the second time, they will be offered a caution and will also be subjected to drug testing; and the third time, they will receive a formal court order, where the penalty could involve drug tagging, exclusion from a geographical zone, or confiscation of ID documents. It’s worth noting, however, that police officers ‘may choose to charge the offender where they feel it to be a more suitable punishment’ at any stage.
Perhaps surprisingly, some have seen the proposals as a step towards decriminalisation. Policy experts at both Volteface and Transform Drug Policy Foundation have highlighted the paper’s proposal that ‘first time’ offences relating to the possession of Class A drugs would no longer result in a criminal record, and also suggested that some of the harsher punishments proposed are unlikely to materialise. Meanwhile, though condemning the use of punitive measures like ID confiscation, charity Cranstoun welcomes the paper’s implicit recognition that the current policy approach is not working.
However, as many commentators have acknowledged, Swift, Certain, Tough is still ultimately based on a punitive model - and one that clearly anticipates an intensification of policing. As Niamh Eastwood, Executive Director of Release, explains: ‘Any model that requires an escalated approach towards criminalisation is not decriminalisation’. Additionally, in forcing people caught with drugs to pay for their drug awareness course, the framework effectively criminalises poverty, given that those unable to pay would presumably be forced to go down the traditional route, ending up in court while others pay their way out. Eastwood continues: ‘Are you a middle class uni student caught with MDMA? No criminal record. What if you’re a teenager suffering from social deprivation, found with cannabis? If you can’t afford to pay for your awareness course, you’re going to get a criminal record and face the sharp end of the proposals.’
So far, the potential impact of the new policies on police powers has received relatively little attention – no doubt partly due to the chaos elsewhere in the Conservative party. But you don’t need to be a detective (if you’ll pardon the police-themed vocabulary) to realise that the new framework will have huge implications for police stop and search powers.
At the most basic level, the identification of ‘recreational’ users will inevitably rely on the power of stop and search and police decision-making. Crucially, drug stops already account for the majority of police stops: in 2020-21, almost 70% of stops under section 1 powers were carried out in search of drugs, and the number of drug stops and searches was up 36% compared to the previous year.
As ever, those affected are unlikely to be the ‘middle-class’ recreational users that the paper claims to target (or, naturally, any of the coke users in the Houses of Parliament), but rather poor and minoritised communities. In the year ending March 2021, Black people were seven times more likely to be stopped and searched than white people, whilst those from an Asian or mixed ethnic background were approximately two and half times more likely to be stopped.
Another cause for concern is the paper’s apparent lack of distinction between Class A and B drugs. Since any type of possession will result in the same consequences within each tier (with no ability to skip or repeat tiers), the paper effectively groups together Class A drugs with those in lower classes, such as cannabis, amphetamines, and ketamine. It also specifies that Drug Testing on Arrest (DToA) would be expanded to include cannabis. Currently, DToA is used to identify heroin and cocaine users after they have committed a crime (generally acquisitive crimes, such as robbery), with the ostensible aim of identifying where drug use has contributed to criminal behaviour and providing an appropriate intervention.
The tightening of the approach towards cannabis is only likely to exacerbate existing inequalities throughout the criminal justice system. After all, cannabis possession already drives ‘much of the racial disparity in the prosecution and sentencing of drug offences’: despite self-reporting lower rates of cannabis use than white people, and comprising less than four per cent of the population in England and Wales, Black people made up a quarter of those convicted of cannabis possession in 2017.
The 2022 National Stop and Search learning report, published by the Independent Office for Police Conduct, has also highlighted that the ‘reliance upon the smell of cannabis as sole grounds for a stop and search, and how it is used to justify the apparent over-policing of Black communities, is one of the greatest concerns we hear from stakeholders’. Consequently, it seems that Swift, Certain, Tough will simply reinforce the criminalisation and overpolicing of Black communities.
This is especially true given that – on a wider scale – the white paper explicitly supports the entrenchment and extension of police powers. To facilitate the use of mandatory drug testing within Tier 2, the paper proposes the introduction of ‘new police powers’ – the nature of which remain undefined. As Eastwood argues, rather than increasing their reach and authority, ‘real reforms reduce the involvement of police in the lives of people who are [overpoliced] and those who use drugs’. In fact, ‘anything else is the status quo’.
At present, the policies in the white paper are proposals, and ones which may never become law. With a new administration just around the corner, and the possibility of a general election within the next twelve months, it’s unlikely that we’ll see this implemented any time soon. Yet the paper stands as one of many reminders of the darkest sides of Conservative Britain. By continuing to demonise drug use, current policy stands only to harm the most vulnerable communities and widen existing divisions in society.