Cannabis (Hansard, 24 June 1977)

§ Mr. Merlyn Rees

A substantial majority of the Advisory Council on the Misuse of Drugs is of the opinion, in principle, that imprisonment should no longer be available in relation to a person, who has no previous conviction of a drugs offence, who is summarily convicted of unlawful possession of cannabis or cannabis resin. Because of the consequential changes needed to give effect to this proposal, however, the Council has advised against giving effect to it in the Criminal Law Bill. Instead it proposes to undertake, as a matter of urgency, a comprehensive review of the classification of the drugs listed in Schedule 2 to the Misuse of Drugs Act 1971 and of the penalties in Schedule 4. The Council has also advised that the Criminal Law Bill should be used to amend the statutory definition of cannabis in the 1971 Act so that all parts of the plant, including the leaves, which contain significant quantities of psycho-active ingredients should be controlled in the same way. I have accepted the Council's advice on both these matters and I have tabled a new clause to the Criminal Law Bill to amend the definition of cannabis.

The letter to me from the Chairman of the Council setting out its advice and the reasons for it is as follows:

Dear Home Secretary,

A. PENALTIES ON SUMMARY CONVICTION OF UNLAWFUL POSSESSION OF CANNABIS OR CANNABIS RESIN.

B. STATUTORY DEFINITION OF "CANNABIS".

Arising out of amendments tabled to the Criminal Law Bill when it was before the House of Lords—the effect of which would have been either to remove entirely the penalty of imprisonment at present available 598W under Schedule 4 of the Misuse of Drugs Act 1971 (the 1971 Act) on summary conviction of unlawful possession of cannabis or cannabis resin, or to make that penalty imposable only on a third or subsequent conviction—you asked the Council for advice on the issues raised.

2. The Council and two of its working groups—those concerned with cannabis, and with legal and administrative matters—have held a number of meetings to consider these issues; they have also considered the issue of the statutory definition of "cannabis" in the 1971 Act. I now have pleasure in submitting the Council's considered views.

A. PENALTIES ON SUMMARY CONVICTION OF UNLAWFUL POSSESSION OF CANNABIS OR CANNABIS RESIN

3. A substantial majority of the Council are, in principle, of the opinion that the penalty of imprisonment should no longer be available in relation to a person summarily convicted of unlawful possession of cannabis or of cannabis resin who has no previous conviction of an offence under the 1971 Act (or it predecessors). Subject to what is said below, the majority of the Council holding this view are strongly of the opinion that appropriate changes in the law to give effect to this principle should be enacted at the earliest opportunity. At the same time, the Council is unable to recommend that the Criminal Law Bill should be used for this purpose.

4. The reasons for this conclusion are, briefly, that the repercussions of a change of this kind raise wider issues for both the policy underlying the 1971 Act and for penal policy generally than could be resolved in time for appropriate amendments to be included in the Criminal Law Bill, even if that Bill were an appropriate vehicle for such amendments, which appears to be doubtful!

5. The scale of penalties set out in Schedule 4 of the 1971 Act distinguishes between the more serious trafficking offences and the less serious possession offences. The scale also distinguishes, very broadly, between the relative seriousness of the drug involved as judged by the harm which may be caused by its misuse. For the latter purpose the drugs are categorised into three classes, A, B and C, the most harmful drugs being in Class A, in which class is to be found cannabinol and certain cannabinol derivatives, except when contained in cannabis or cannabis resin. These substances are believed to be the essential psychoactive ingredients in cannabis. Cannabis and cannabis resin are classified as Class B drugs together with about a dozen other substances.

6. The penalties have been designed to reflect the gradations of seriousness involved between the different offences and the different drugs. They are not, however, capable of taking into account the different circumstances of each offence and each offender. The decision with regard to sentencing in relation to individual offenders is left to the discretion of the courts.

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7. Against this background, the difficulty of giving effect to what is desired in respect of cannabis and cannabis resin possession offences is that, to do this in isolation would treat possession of these two substances differently from, and more leniently than, possession of other Class B drugs or of all Class C drugs, which are regarded as the least harmful category. Alternatively, to make the same change in relation to all the other drugs in these two classes raises issues which the Council has not had adequate opportunity to examine. While it may be desirable in relation to cannabis and cannabis resin to introduce the exception of first offenders from imprisonment, this may not be so in the case of other drugs in the same class or in other classes. In the view of the Council, therefore, the question of amending the penalties in relation to cannabis and cannabis resin opens up much wider questions about the classification of controlled drugs generally and the penalties applicable. Accordingly, the Council proposes to initiate, as a matter or urgency, a comprehensive review of the classification of the drugs listed in Schedule 2 to the 1971 Act and of the penalties in Schedule 4. The Council strongly urges that, having regard to the loss of the opportunity to use the Criminal Law Bill to make appropriate hanges, if this review results in recommendations which are likely to require changes in the law and these are accepted by the Government, time should be found without delay to introduce the necessary amending legislation.

8. Other important considerations which convince the Council that the Criminal Law Bill is not the appropriate vehicle for effecting the change which in principle it favours, are that the Bill was not originally drafted with a view to effecting what would be a significant change in drugs offences sentencing policy. It does not seem appropriate, subject to a wider examination of the relevant issues, to introduce a new "stepped" penalty for a summary offence where the general trend is away from such penalties. For these and other reasons the Council feels that it needs more time than it can be afforded during the passage of the Criminal Law Bill to consider the implications of the proposed change in cannabis and cannabis resin possession penalties, and to work out reasoned proposals.

B. STATUTORY DEFINITION OF "CANNABIS "

9. The Council has given urgent consideration to the question of the definition of "cannabis" in section 37(1) of the 1971 Act. Recent court judgments, in particular that of the Court of Appeal in the case of R v. Good-child (1977, The Times, January 15), have made it clear that, contrary to what had been the general understanding, the statutory definition does not embrace all those parts of the cannabis plant, in particular the leaves, which are known to contain substantial quantities of psycho-active substances. In contrast, other judgments have suggested that if a person in possession of cannabis leaves is not guilty of unlawful possession of cannabis (a Class B drug) he may well be liable to conviction of the more serious offence of possession of substances, cannabinol and certain cannabinol 600W derivatives, which are contained in the leaves and which are individually controlled as Class A drugs. Whatever the outcome of these proceedings, it appears to the Council that their result will be to leave the law relating to the control of cannabis confused, unsatisfactory and possibly unworkable.

10. The Council is satisfied from its study of the national and international developments in the field of drugs control that the intention has always been that the misuse of all those parts of the cannabis plant which contain psycho-active ingredients should be controlled although, so far as possesion of the drug is concerned, States which are Parties to the International Treaties should have discretion as to the degree of control they exert. Accordingly, the Council recommends that the opportunity of the Criminal Law Bill should be taken to amend the statutory definition of cannabis in the 1971 Act so that all parts of the plant, including the leaves, which contain significant quantities of psycho-active ingredient, are controlled in the same way.

11. The Council recognises that it might at first sight be regarded as illogical for them to make this recommendation whilst, at the same time, refraining from recommending that the Bill should be used to bring about the changes considered desirable in the possession penalties. The two situations, however, are not analogous. Without the urgent redefinition of cannabis the situation would either result in the injustice of persons being exposed to penalties greater than intended or in a breakdown of the system of control; similarly the changes in the law needed to give effect to the policy favoured by the Council to which reference has been made in paragraph 3 cannot sensibly be considered until the substance under control is properly defined. If the review of the whole situation is to be conducted without distracting pressures of this kind it is most desirable that the situation should be clearly restored without delay to what it was thought to be before the defects in the definition were exposed by the recent decisions of the courts. This is a pre-requisite to the general review. The Council would not wish this necessary preliminary step to be regarded as weakening in any way their intention that their wider review of the classification of drugs in general, the position of cannabis and cannabis resin in particular and the appropriate penalties should be guided by the views expressed earlier in this letter.

Yours sincerely

Sir Robert Bradlaw, Chairman, Advisory Council on the Misuse of Drugs.