On the possession of drugs

I've recently had a look at the Drugs Misuse Statistics for Scotland 2010. Hidden inside this rather imposing document are some very interesting figures which tell us a lot about the enforcement of the criminal law.

As is well known, the main offences relating to drugs are contained in the Misuse of Drugs Act 1971. The main offences under the statute are contained in s.5(2) and 5(3) - these are being in possession of a controlled drug and being in possession of a controlled drug with intent to supply another. (The definitions of controlled drugs are found in Schedule 2 to the Act). While there has been a lot of legal discussion of the definition of possession (basically you are held to possess sometihng if you know that it is on your person or in your property even if you do not know exactly what it is), what I am more concerned about here is the question of enforcement. What is important here is that s.23(2) of the Act gives a police officer power to serach any person or vehicle where they have reasonable grounds to believe that the person is in possession of a controlled drug. With this in mind let us turn to the statistics.

These show that in 2010 there were 39,408 drug related offences recorded by Scottish police forces. 29,179 (74%) of these were for possession (s.5(2)) and 9131 (23%) were for possession with intent to supply (s.5(3)). If we go on we find that there were 9503 drug offences where the charges were proved, 7251 of which where it was the main offence (ie. that in the other cases the person was also charged with another offence, which was presumably how they had come to the attention of the police).

What is the significance of this? The main thing that stands out here is the massive discrepancy between the number of recorded offences and the number of convictions. What the figures then suggest is that the search powers are widely used, but that these are only rarely followed through to prosecution or conviction - there are other more or less formal ways of disposing of these cases. The good news here is that if you possess drugs (especially Class C drugs), you are unlikely to be prosecuted, but this does depend on the discretion of the police and prosecution.

More generally, these figures point to the increasing importance of possession offences to the criminal law. under the law possession is defined broadly, and is usually associated with special powers for the police to stop and search suspects. This is justified because the possession of certain objects (drugs, knives, articles associated with terrorism etc) is seen as creating a particular risk of future harm - even though the connection might be quite remote. The enforcement of the law places a great deal of discretion in the hands of the police, as the question of what amounts to 'reasonable grounds' remains vague and hard to determine, with the suspicion often grounded by the subsequent discovery of the criminalised item. And of course enforcement comes ot be targeted in certain areas or aimed at particular groups or ethnic communities, having the effect of creating 'suspect communities'. This cannot be a good way of constructing the criminal law. The answer must be that we need to think much harder about the enactment of these broad offences, and where they already exist in the law to think about how they might be constrained. And if all else fails, the card below offers a different kind of solution.