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Chapter Eight: SECONDARY ASPECTS OF CHANGE PDF Print E-mail
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Books - The Social Control of Drugs
Written by Philip Bean   
Thursday, 10 June 2010 00:00

Chapter Eight: SECONDARY ASPECTS OF CHANGE

So far we have been examining the legal changes in terms of the drug takers themselves and the major sources of supply through the medical profession. I now want to examine certain secondary aspects which have helped to shape the normative changes either by opening up new normative systems or buttressing and refurbishing existing legal norms. Implicit in my argu-ment is the assumption that legal norms are rarely created or sustained in a moral vacuum and it is as important to examine those secondary aspects which help to open up new normative systems as it is to examine those which legitimize them. Ideally one would want to present this argument in terms of the natural history of the normative changes—i.e., to show what is generic to a class of phenomena which produced these changes—but unfortunately there are too many gaps in our knowledge to be able to succeed here. All we can do is to assume in a common sense way that certain social groups have had an influence on the moral passage of legal norms. Later we can examine how norms were reinterpreted to fit in with new changes, especially in those cases which involve a new way of viewing older norms.

Before examining these issues, however, it seems worthwhile to point to certain groups who may have had an important influence but who somehow have either not been as prominent as expected or have not had their influence clearly documented. Perhaps later studies may show how they fit into the overall scheme of things.

The first of these groups concerns those rather shadowy figures in drug legislation known as the drug manufacturers. I have already stated that they do not appear to have a predominant part in the system of control, and yet we could assume that they had some influence on legislation. At the other end of the drug 'production line' the pharmacists have also remained unobstru-sive, appearing once only and then to refuse to dispense prescrip-tions for amphetamine sulphate powder. Have the manufacturers and the pharmacists been content to sit back and observe events, or have they taken a more active part which has avoided the publicity given to the activities of their professional colleagues? If not, in what way they have been able to influence events? The Pharmaceutical Society, after all, were considered to be sufficiently influential to be represented on the Rolleston Committee.

The second group, central but unobtrusive, has been that of the Home Office drug inspectors. One can only surmise that their influence has been enormous, but it will be a long time before we can know the extent of their powers. Someone, however, provided the impetus to convene the first Brain Committee and to reconvene it two or three years later. And that someone also formulated the frame of reference which included the establish-ment of tribunals. This certainly reflected a belief that tribunals ought to be established, and their inclusion in the terms of reference was probably designed to cope with the changes in the pattern of drug taking. Perhaps the Home Office had some early warnings that over-prescribing was likely to occur.

The third group who have received less attention than they ought, have been the press. Criminologists are only beginning to evaluate the mass media's influence on deviancy and the work of Stan Cohen points the way to further studies.' In the field of drug taking it would be invaluable to question the way in which the press have assisted in the subtle shifts of moral evaluation of drug takers, and so paved the way for legislative changes. Banner headlines of "Drug crazed hippies" who are supposedly "wanted by the police to help with murder enquiries"—which incidentally were later denied, but by a different newspaper—must have some effect in shaping evaluations of behaviour. More subtle still is the reporting by default, where by ignoring some groups, the media have helped to produce the stereotypes. Dr. Stan Cohen made similar observations in his studies of Mod and Rocker violence at seaside resorts. He argued that "only an intensive study of each phenomenon can reveal the mechanisms of myth creation, and particularly the techniques and sources of distortion to be found in the mass media. The following are some trivial examples of such techniques: the reporting of the same incident twice to appear as if it were two separate incidents; the reporting of non events (e.g., 'Fears when Ton-Up Boys Walk are Groundless', 'No Violence in Brighton Today'); the invention of highly stereotypical gang leaders (Why I Threw That Hammer—by Mick the Wild One'), etc. The portrayal of violence in the media is more often allegorical than real. Folk villains and devils are paraded before us as if they were actors in some gigantic morality play." 2

Cohen's point is simply that one cannot understand teenage violence without recourse to a study of the effects of the mass media. Neither does it seem possible to be able to understand moral evaluations of behaviour in drug taking without a similar examination. Cohen, who has probably made the largest contri-bution in this field, notes that the cumulative effect of the mass media is both subtle and potent. "Through a complex process that is not yet fully understood by students of mass communica-tion, the mere reporting of one event has under certain circum-stances the effect of triggering off events of a similar order . . . The main reason why this process has been misunderstood in regard to deviance—particularly collective and novel forms—is that too much effect has been placed on the supposed direct effects (imitation, attention, gratification, identification) on the deviants rather than the effects on the control system (italics mine) and culture and hence (via such processes as amplification) on the deviance."3

In its simplest forms, the effects of the media have been to produce stereotypes which in the early 1960s showed the drug takers and particularly the addicts, as 'tragic' creatures who needed a great deal of sympathy and understanding. Like the addicts of the 1930s they were sad rather than bad. Whether this view produced corresponding role models for would-be addicts is difficult to say but from my own research in Piccadilly Circus in the mid and late 1960s it appeared that many addicts set out with a deliberate intention of becoming addicted as quickly as possible. Unfortunately, for these particular addicts the mass media's concern with their situation is both problematic and flexible and those who became addicted in order to receive undiluted sympathy suddenly found that the media began to see them in a different perspective. In some cases the media argued for extra controls long before the second Brain Committee whilst other sections changed their views more slowly, but by the late 1960s the understanding-sympathetic approach had given way to the drug-crazed-hippie type argument. The dangers of relying on the media to provide or buttress a public image is that one can be quickly let down. The danger signals are now becoming clear; the first and important one is when the press appear to lose interest, but this is of ten the gestation period of a new image, and when interest is reawakened it almost always appears in a different form. So for example in 1965 drug taking was freely discussed in the press, and drug takers were often presented in the "they-need-sympathy-guise". By 1968 the image had changed, but the intervening 3 year period showed a slackening of interest.

Any study of these secondary aspects, and particularly the media, may prove worthwhile both as a necessary adjunct to criminological thought, and in the development of a new perspective on emerging legal controls. Whenever new laws emerge to control specific behaviour, there seem to be other secondary aspects such as sectional interests which are rarely considered in any analysis. The effect of the political lobby on firearms control in the U.S.A. is fairly well documented, but lobbying in Britain seems either less developed or less publicised. I have already highlighted the more obvious systems in the field of drug control, but all emerging laws have to compete with similar networks. For example, when certain types of 'offensive weapons' or comics were banned in Britain, what happened to the manufacturers? Did they wholly transfer production to more legitimate goods, or did they develop similar .products which would later require legislation? Have the back-street abortionists turned their semi-medical talents to curing other 'diseases' and if so, how are they going about it, and which diseases are they now curing? One of the more curious anomalies of the Street Offences Act is not only to understand what happened to all those prostitutes, but also to understand what happened to the 'pimps' and the countless other secondary groups such as the landlords who let out their rooms at call-girl rents. It would be too much to expect that they suddenly transferred to lower rental accommodation for homeless families. If the countless millions of barbiturate prescriptions suddenly stopped overnight, would the manufacturers simply transfer to other fields without a backward glance at the loss of earlier profits? It seems that any viable study of emerging criminal law ought also to be linked to previous legislative changes. We already know from studies on adoption of children and perhaps from abductions, that in 1972 we must also consider the effects of the Abortion Acts which have tended to restrict the availability of children for adoption. Similarly, in the study of law, the effect of opening up or closing down secondary systems could throw light on emerging laws as well as on emerging types of deviance.

There is nothing new in this argument, but as Carson says: "There is a danger that in the current climate the sociology of law will become prematurely harnessed to the demands of immediate legal applicability . . . [and] the plight from which British criminology is still extricating itself could all too easily become the fact awaiting the sociology of law."4 Whilst I broadly agree with Steven Box when he says we are all in the business of persuasion, if the form of persuasion is located in too narrow a perspective, it has the additional problem of simply being too repetitive.

Although it may be difficult to show precisely the influence of groups such as the Home Office Inspectors or the mass media, we are on less fluid ground when we consider the changes made in the official definitions of addiction, and later in the official classifications of the addicts themselves. Compare, for example, the comments about the causes of addiction in the Rolleston Report and those in the second Brain Report. The Rolleston Committee thought that "the immediate cause of addiction is the use of the drug for a period sufficient to produce the consti-tutional condition manifested by 'craving' and the occurrence of withdrawal symptoms when the drug is discontinued." They were presenting a wholly clinical/pharmacological statement, divorced from moral undertones. Later, when they were concerned with the sort of people who became addicts they may have adopted a somewhat moralistic view, but this was mixed with a certain note of sympathy. "Addiction is more readily induced in some persons than in others, the most important predisposing causes are chronic pain or distress, insomnia, overwork or anxiety."5 The second Brain Report on the other hand saw addiction as occurring where a person has an overpowering desire for the drug's continuance but does not require it for the treatment of organic disease. As was pointed out in Chapter 1, it appears that an addict cannot be someone who has an overpowering desire to use the drug but still needs it for the relief of pain.

Implicit in this definition is the distinction currently being made in Britain that there are two sorts of addicts. The difference is thought to be based on the 'origins' of their addiction. This distinction first appeared in 1958 when the Home Office suddenly developed a new classificatory procedure, dividing addicts into therapeutic and non-therapeutic groups. The second Brain Report merely continued with this classification. Prior to 1958 all addicts were simply listed as "those who received drugs from medical sources." This new classification coincided with an increase in known addicts and particularly with an increase in young, male, heroin addicts. No reasons were given as to why there was a need to make such a distinction, but it has the obvious effect of showing that there are two distinct types. In the 1930s, some addicts were known to have acquired their addiction through "injudicious medical treatment" whilst others became addicted simply through contact with drugs during the course of their work. The Rolleston Committee did not think it was necessary to see addicts as forming separate groups although they too could not avoid a sidelong swipe at those addicts who came from the 'criminal claSses' and who were addicted "out of mere curiosity or the search for pleasurable experiences." Yet they were quick to point out that "use is maintained, not so much from the original motive, as because of the craving created by the use."

The new classification has been explicitly accepted by almost all research workers and the therapeutic group has been almost totally ignored. No-one appears to have asked if this group is basically criminal, or if they too come from broken homes. An assumption is made that they are different, and different in the sense which resembles Duster's quotes on the two groups of American addicts. The following quote from a research study published in 1969 illustrates this point. "These non-therapeutic addicts contrasted strikingly with the former type of therapeutic or professional addict (most of whom used morphine or pethidine, were scattered throughout the country, were secretive about their habit and generally achieved a measure of social stability). The new addicts, on the other hand, were mostly of unstable personality and social background, inhabited certain localities in London, talked freely of themselves as 'junkies' and evolved a pseudo-philosophic drug subculture. Such junkie groups formed foci for the epidemic spread of heroin addiction to other suscep-tible individuals."6 Notice how the therapeutic group was des-cribed in terms of 'professional' and 'achieved a measure of social stability'. The non-therapeutic group were mostly of 'unstable background and personality' and they formed 'pseudo-philosophic drug subcultures', and that there was an 'epidemic spread' to 'susceptible individuals'. It would be interesting to know how this author knew so much about either group; there are no available listed comprehensive studies to allow for such a generalisation and his own particular study was concerned with 50 heroin addicts in a London prison!

This particular research worker was not alone in making the distinction; others have operated with a similar model. The effect has been to produce the stereotypes of the therapeutic group as consisting of peaceful citizens whose lives have unfor-tunately taken an addictive turn due to their peculiar medical circumstances, and of the others as 'pathological', either as personalities or in a social sense, who have now formed them-selves into groups or drug subcultures. In other words, one group could not help becoming addicted, but the other could.

Such a distinction has the obvious effect of allowing moral connotations based on a very doubtful distinction of the origin of addiction. The Rolleston Committee saw addiction as "the use of a drug sufficient to produce . . . craving"—in other words as a clinical/pharmacological state. If addiction is an illness then there seems no need to discuss the origins except as a minor part of the diagnosis. It would seem no more relevant than for an orthopaedic surgeon to know how a person came to break his leg. The addiction, like the broken leg, is what one concentrates on, not how it happened. In fact, classifying addicts in this way seems to show a clear intention not to discuss addiction but to indicate that there are different moral categories.

Once such a classification is made, it then becomes a short step to move to the next stage which is to distinguish between the type of drug taken and the social categories of the different groups of addicts. As the above quote makes clear, the 'thera-peutic' group were addicted to morphine and pethidine and the 1 non-therapeutic group to heroin. When the Treatment Centres were established to cater for the heroin addicts, a deliberate policy seems to have been made to substitute physeptone for heroin. Yet I wonder if such a substitution makes the addict less addicted? On the face of it it is difficult to know why there was a need to substitute at all unless it can be shown that physeptone is being prescribed as part of a deliberate treatment plan, or that it contains less serious addictive properties than heroin. When this question is linked to the previous example, the more likely answer is that it has less to do with treatment, especially in the form prescribed by the Centres, but more with the suspected relationship between heroin and the subterranean values which are thought to be part of the heroin addict's new value system.

The link between moral condemnation of the drug and the user is not a new one. In this sense the pattern has scarcely changed since Allbut and Dixon would not take stimulants because they were "the resort of the scum of the earth" (see Chapter 2). Perhaps it is labouring the point a little, but it is nonetheless worth noting that in a study by Brian Barraclough et al, the authors showed that death from barbiturate poison-ing in 1968 accounted for 30% of the 4,584 suicides in England and Wales and 65% of all suicides due to drugs. Of the 100 suicides in Barraclough's study, 52% had been taking bar-biturates regularly, a third for more than two years, and 10% for more than ten years. As for the prescribing habits of doctors, Barraclough noted how frequently the patient received a routine prescription either from a receptionist or through a relative or by post without first having a further consultation with the doctor. The authors pointed out that in Australia a legal limit has been placed on prescribing and no patients can receive more than 25 barbiturate tablets without a further consultation.' In Britain our knowledge of barbiturate addiction has not led to any great moves to restrict supplies or to condemn the addict.

We tend, if anything, to feel compassion for them, and in so doing link them with other 'therapeutic' addicts who became addicted through no fault of their own. But, of course, bar-biturate addicts are part of the moral centre, and are not thought to hold the subterranean values of the heroin addict. Cannabis, which does not produce addiction is, on the other hand, closely bound up with the subterranean value systems and attacked, not necessarily because of its own inherent properties, but as in the Parliamentary Reports on the 1971 Act, by invoking the escala-tion argument that it leads to heroin addiction.

I am not saying that the changes in the classificatory pro-cedures were deliberately introduced to produce the types of controls exerted by the 1967 Act, but I am saying that these official classifications have had the important effect of producing the notion that there are two types of addicts. And since one type can be linked to:3 Press reports of 'Drug Crazed Hippies' they can be easily identified and recognized by features other than the taking of drugs.

Furthermore, once research workers use this classification a sort of scientific credence is immediately given to the Home Office categories and research then has the important function of identifying and delineating a selected problem group. Stan Cohen and Laurie Taylor see one type of research as having a principal function of reassuring the public that the problem is being scientifically tackled, "The research itself may or may not say anything significant, relevant or even interesting. Its results indeed may never get published. This is relatively unimportant. The main thing is the research W.D.P. (window dressing poten-tial). To have a high W.D.P. the research must fulfil the following criteria: it must be well financed; it must be comprehensible to most politicians and administrators; its aims must be presented in a simple direct way, preferably in the form of a hypothesis to be tested. Any complex theoretical and methodological problems must be kept to one side and the results, when they appear, should be ambiguous enough to reassure while at the same time generating numerous statements of the 'more research is needed' variety." 8 Whilst Cohen and Taylor are right to draw our attention to the W.D.P. type of research and suggest that it does not matter whether anything is done as a result of the research findings, there is another type—the promoting-legal-control-type which does have an influence. This is simply designed to show who constitute the problem group and if this group can be seen to be 'pathological' then controls are justified for the subject's own good. Whether this was the intended con-sequence, is not the point; simply by using the non-therapeutic classification as the area to be studied, there is the implicit assumption that this group already constitutes a new social problem.

Although changes in the classificatory procedure can in them-selves have an important function of delineating new groups to be controlled, reinterpretations of existing law can have the additional effect of officially endorsing new changes. They can both adjust the moral climate and implement new sanctions. In the first example given below reinterpretation merely adjusted the moral climate. This adjustment occurred when drug offences changed from offences of strict or absolute liability to ones involving mens rea. Later we can show how the interpretations helped with the next stage of the legal process which was to define a new moral climate.

The notion of strict liability in law is a difficult and confusing one which cannot be discussed in very great detail here.° Lord Morris stated the position clearly in the case of Sweet v. Parsleyl° in terms of the relationship between offences involving strict liability and those which require mens rea, i.e., a guilty mind. ". . . it is a cardinal principle of law that mens rea, an evil intention or a knowledge of the wrongfulness of the act is . . . an essential ingredient of guilt of a criminal offence. It follows from this that there will not be guilt . . . unless there is mens rea or unless Parliament has by statute enacted that guilt may be established in cases where there is no mens rea." 'I The difficulty about drug offences was to decide if Parliament had decreed that mens rea was to be an essential ingredient of guilt in those offences. Up to 1966 it was thought not.

After 1966 there were three important legal decisions which have left the notion of strict liability in drug offences in some doubt. Or at least two have; the third, that of Sweet v. Parsley, is now clear cut.

The first case, Lockyer v. Gibb, was an appeal to the Queen's Bench Division on the 3rd May 1966.12 The appellant was charged with possessing morphine sulphate tablets. At first she told the police that she did not know what the tablets were and that a friend asked her to look after them for him. Later, she gave a different explanation. She said she was in a cafe with a friend, and when the police arrived he must have dumped them on her. The Magistrate held that mens rea was not an ingredient of the offence. On appeal, Lord Parker, C.J. agreed with this decision, but said "whilst it is necessary to show the appellant knew she had the article which turned out to be a drug, it is not necessary that she knew she had a drug, and a drug of particular character."

The second case, Warner v. Metropolitan Police Commissioners, involved an appeal to the House of Lords." This is a long complicated case where the appellant was originally convicted of possessing 20,000 amphetamine sulphate tablets. He was con-victed after the Chairman directed the jury that the question whether the defendant knew what the contents were was relevant only in mitigation, i.e., the offence was an absolute one. The importance of this case, like that of Lockyer v. Gibb, centred around the mental element implicit in the notion of possession.14 In the Lords appeal only one judge held that mens rea need be proved. One other thought it was only necessary to establish possession, not prove the "nature and quality of that which he had" whilst the remainder simply saw the offence as 'absolute'. As the Criminal Law Review points out, this was the first case of strict liability to reach the House of Lords and it would have been too much to expect a thorough going re-examination of the basis for such an offence. However, it was an important start for one Law Lord to hold that possession should not be absolute. How this judgement affected the third case, that of Sweet v. Parsley, is difficult to say and I also wonder if the social status of the defendants may not have been important too, as Miss Sweet was described as a 'respectable school teacher'.

This final case of Sweet v. Parsley leaves the issue in no doubt. The appellant was convicted by the Divisional Court of being concerned in the management of premises used for the purpose of smoking cannabis. The Divisional Court said it was not neces-sary for the prosecution to prove that Miss Sweet knew that cannabis was being smoked on her premises as this offence was one of strict liability. In the House of Lords this judgment was reversed; the Law Lords held that this offence should involve mens rea.15

The arguments for this change are particularly interesting, not only for our purposes but for the whole study of the sociology of law. Lord Reid, one of the five Law Lords sitting on the appeal, quoted the authoritative statement of J. Wright who saw strict liability offences as acts "which are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty." Lord Reid saw this offence of permitting cannabis smoking as a "truly criminal act" as opposed to what he called the "quasi-criminal acts" of offences of strict liability. At a later point in his judgement he pointed out that "when one comes to acts of a truly criminal character [the] legislator must bear in mind . . . that a stigma still attaches to any person convicted of a truly criminal offence and the more serious or disgraceful the offence, the greater the stigma." '" Lord Reid seemed to be saying here that offences of strict liability protect the offender from stigma—and moral condemnation too—because the offender can always claim it was not necessary to show mens rea, and if not necessary we can assume that it did not exist. 'Truly criminal acts' by comparison allow for both condemnation and stigma, and Lord Reid considered that this type of drug offence ought now to be seen as a truly criminal act.

The importance of the case of Sweet v. Parsley—and to a lesser extent those of Warner and Lockyer—was the placing of drug taking in a new legal, social and moral category where the offender could receive the full condemnation and stigma for these offences. It is important to bear in mind, however, that these offences had existed in their previous form since the 1920s and that Miss Sweet was not the only one to appeal against a decision of strict liability. In 1965 an innkeeper and his wife were charged under similar circumstances, and although the Appeal Court accepted their argument that they had not known their premises were being used for the smoking of cannabis the appeal was dismissed on the grounds that the offence involved strict liability." By 1969, however, the House of Lords had identified a new sort of drug taker—described by Lord Reid as those of slovenly or exotic appearance—and the law had begun to operate at a more symbolic level. The legal gesture which existed in the 1930s had by the late 1960s achieved its full symbolic significance.

This, and the previous examples of changes in classificatory procedures, and the changes in prescribing all occurred at a time when drug takers in Britain ceased to be seen as predominantly from the social categories of the centre. Using Duster's analysis, they became the most vulnerable to the charge of immorality. In this sense the pattern of drug taking and the development of controls in Britain in the 1960s bore a striking similarity to the pattern of the American system in the early part of the 20th Century.

Once the law has achieved its full symbolic significance and the designated group is clearly identified, new controls can then be justified on the grounds that the general public demands some action. The general public in this sense is of course the groups which identify themselves with the current moral centre. In the case of the drug takers the moral entrepreneurs of the late 1950s had been able to see their campaign implemented by the 1967 Dangerous Drugs Act—incidentally ably assisted by the norms and values of the drug takers themselves who remained unre-pentant to the last. So, Sec. 6 in the 1967 Act provided powers of search and arrest which are in many ways in excess of all other powers given to the Police.

Once, however, new controls become implemented it is difficult to remove them for the simple reason that they have been formulated by the whole range of primary and secondary features which we have discussed in previous chapters. It had taken 8 or 9 years for the 1967 Act to be implemented and to reverse this process it would be necessary to reverse the whole designation of the deviancy, change the stereotypes and most of all either require the moral centre to change its views or replace it with a new moral centre. The main point here is that legal changes simply do not occur in a vacuum so that once established they require similar processes to develop new controls or even remove existing ones. A return to the legal system of the 1930s would require a shift in the type of people who were seen to be the drug takers (the best hope here would be to begin to recognize the barbiturate user as the main drug taker), redefinitions of their values as being a repentant rather than an enemy deviant, as well as making changes in the classification systems, research samples, etc., etc. These processes take time as any realistic moral entrepreneur knows to his cost.

To illustrate how legal changes can be justified, even such extreme ones as those under Section 6 of the 1967 Act, it is worthwhile examining some of the arguments presented at the time the controls were introduced and when they were later re-examined by the Deedes Committee. The arguments by Lord Stonham are particularly interesting, especially the one which justifies the powers on the grounds of public (i.e., moral centre) demand.

The Advisory Committee's Report on Cannabis's concluded in paragraph 10 of their summary of recommendations that "the Advisory Committee should undertake as a matter of urgency a review of police powers of arrest and search in relation to drug offences generally. . . ." le Michael Schofield in that report put the matter more strongly: "In my opinion the powers of search are already too wide. Section 6 of the Dangerous Drugs Act 1967 gives the police power to stop and search without warrant any person reasonably suspected of being in unlawful possession of drugs. The dangers in these new powers are immense, for there is only the subjective word 'reasonable' to prevent the over-zealous from stopping and searching anyone for anything anywhere. Young people are already being subjected to indis-criminate searches where no grounds for reasonable suspicion exist." The controversial section, Section 6 (1) of the 1967 Dangerous Drugs Act, gave the police powers to stop and search where there are "reasonable grounds to suspect that any person is in possession of a drug in contravention of the principal Act or Regulations thereunder. . . . A constable may, a) search that person or detain for the purpose of searching him; b) search any vehicle in which the constable suspects any drug may be found and for that purpose require the person in control to stop it; c) seize and retain anything found in consequence of the search which appears to the constable to be evidence of the offence. Compare this with the usual powers existing under Section 2 of the Criminal Law Act, 1967. This Section gives powers for "any person to arrest without warrant anyone who is or whom he with reasonable cause suspects to be in the act of committing an arrestable offence." The fundamental difference between the two Acts is that Section 6 of the Dangerous Drugs Act, 1967 is not concerned as such with arrest, but with powers to search and obtain evidence. However, these powers are wider than those under the Criminal Law Act as there is power to search and detain for searching before arrest, even where the offence is not an arrestable offence, i.e., where the sentence is fixed by law or carries a sentence of imprisonment for a term of five years.

A Committee under the chairmanship of William Deedes, M.P., was asked to examine this question, as a result perhaps of the comments and questions raised in the Cannabis Report. A minority view in favour of abolishing the statutory powers of search, pointed out that "The police have no statutory powers to search for concealed weapons, other than firearms, even though knife carrying may be common at some times in some areas. It may seem strange that a statutory power to search in respect of drugs should exist since it is a consensual offence and not a potential offence of aggression." However, a majority view thought the new powers were justified and they have now been further incorporated into the 1971 Act. There have been a few critics of these powers, most of whom gave evidence to the Deedes Committee. The organisation 'Release' argued that Sec-tion 6 should be clearly defined so that conduct, not appearance, should determine whether a police officer decided to execute a search. Baroness Wootton in the House of Lords' Debate on the 1971 Act pointed out that as only 1 in 6 searches from one police station in London resulted in an arrest, and 1 in 3 from Birmingham, "Reasonable cause to believe is unfounded cause to believe."

The police in their evidence to the Deedes Committee argued that "it would be extremely difficult without the new powers . . . to carry out the intention of Parliament to suppress drug addic-tion and drug peddling and to honour international agreements on drug offences." Lord Stonham at the second Reading of the Bill on the 20th June 1967, gave the following reasons for these new powers: a) drug trafficking was widespread; b) existing law was inadequate because drug peddlers were well familiar with statutory limits on search and arrest; c) some police forces were able to use local powers and these had proved to be of much value (e.g., Section 66 of the Metropolitan Police Act);2° and d) there was a strong public demand that young people should be protected from drug pushers and peddlers. No dissent was expressed, and the clause was agreed to without a division.

The important point here is that no arguments were given as to the drug taker being a particular type of persistent dangerous criminal. Most other groups who attack conventional value systems and who do so publicly, such as Mods and Rockers, or even some extreme political organisations, either leave visible evidence in the form of a traditional victim, or damage to property, or even personal injury. Drug takers if engaged in illegal transaction have, as mentioned earlier, no such 'victim% their crimes are in Schur's definition, "a willing exchange . . . of strongly demanded, but legally proscribed goods or service." " The absence of the traditional victim may make enforcement particularly difficult if the exchange takes place priyately, at a mutually agreed place, and in this sense it could be argued that special powers are needed owing to the consensual nature of the offence. On the other hand there are other 'victimless crimes' such as certain types of homosexuality and abortions for which no special powers have been requested; and in the case of the latter, there have been frequent reports of severe physical damage inflicted, sometimes involving loss of life.

Also, there are forms of behaviour closely linked to drug taking which have received less attention, and in some cases avoided the more perjorative overtones which have been reserved for the more traditional drug taker. The first of these centres around drug taking and driving, but in this case driving offences are of course rarely seen as 'criminal'. In a written answer in the House of Commons in 1969, it was stated that "it appears that the number of road accidents which can be attributed to drug taking is very small." However, in a debate one month later, a number of important studies were quoted which cast doubt on this earlier statement. One Member quoted a study which involved 945 drivers of private cars and commercial vehicles in which each driver was asked if he had taken any pills or medicines during the previous 24 hours, and 140 or 14% admitted that they had. Relating this to the general population, 2 million motorists in any one day drive under the influence of pills or medicine. The results of this study fit in well with that by the California State Highway patrol which showed that 13.2% of drivers had been under a similar influence. Another study of 100 alcoholic patients showed that 38% had driven after taking barbiturates or tranquillisers. Very little research has been done as yet into which drugs have the more potent effect or how long their influence remains, or to what extent they impair driving ability, but it seems an important field which has been neglected in the past at the expense of the younger drug taker. It is also interesting to note that the law relating to the breathaliser has not permitted the police to deal in the same way with the person who drives under the influence of drugs. The police have restricted powers in the case of drugged driving, so prosecutions for this offence remain small." Furthermore, as Baroness Wootton pointed out, 30 deaths in 1968 were attributed to the misuse of drugs, plus a further 438 where there was a suspicion of drug misuse. The number killed on motor-cycles is practically 30 times that of those who died from drugs and nearly twice the number of cases in which drugs were suspected of causing the deaths.23 There appear to be more dangerous things in life than taking drugs.

It is also interesting to note that offences for breaking/entering and stealing drugs from chemists' shops have received very little attention, although for slightly different reasons. There are no detailed figures available as to the extent of these, but it is thought that they have increased over the last 10 years. The Advisory Committee reports that 30 cases of pharmacy breaking occurred in Nottingham alone in 1968 and in Lancashire a group of young people broke into 20 chemists' shops in 6 weeks netting some 30,000 amphetamine tablets. In 1966 during the debates on the 1967 Act, the House of Commons was told that there were 60 cases of breaking and entering pharmacies in London, 35 in Manchester, 25 in Lancashire and 14 in Liverpool. It seems important to ask if excessive stocks are being carried, and if pharmacists are being careful enough in the safe keeping of dangerous drugs. Might there not be a case for arguing special powers here too?

REFERENCES
1. Cohen, S. Folk Devils and Moral Panics, MacGibbon and Kee, 1972.
2. Cohen, S. 'Research into group violence and vandalism among adolescents' in paper presented to the 4th National Conference on Research and Teaching in Criminology, July 1970, mimeo.
3. Cohen, S. Folk Devils and Moral Panics, op. cit., p. 162.
4. Carson, W. G. Social Control Deviance and Dissent, op. cit., p. 2.
5. See Chapter One.
6. James, I. P. 'Heroin Addiction in Britain', British Journal of Crimi-nology, 1969, Vol. 9, p. 108-125, op. cit.
7. Barraclough, B., Nelson, B., Bunch, J. and Sainsbury, P. 'Suicide and Barbiturate Poisoning' Journal of Royal College of General Practi-tioners, 1971, Vol. 21, p. 645.
8. Cohen, S. and Taylor, L. Psychological Survival, Penguin, 1972, p. 205.
9. See particularly Smith, J. C. and Hogan, B. Criminal Law, Butter-worth, 1969, p. 67, and Smith, J. C. 'Guilty Without Intent' New Society, 17th April, 1969. Also Turner, J. W. (ed.) Kenny's Outlines of Criminal Law 19th Edition, Cambridge University Press, 1966, Chapter Two.
10. See Justice of the Peace, 1969, Vol. 133, p. 188-205.
11. Strict liability offences exist in Law in certain specific areas, mainly in the Licencing Acts, Food and Drug Legislation and certain sections of the Road Traffic Acts. There are a number of reasons why strict liability offences are retained although they pre date common law. The most obvious reason is because the Legislature appears to see a particular type of behaviour as being so important as to absolutely forbid it. So, in the Food and Drugs Acts it is not necessary for the prosecution to prove a person knew he was selling defective food only that the food was sold in a defective state. Similarly in the Licencing Acts a publican could be prosecuted if his staff sold alcohol outside permitted hours even if the publican did not give staff permission to do so. The legislature views this type of behaviour as needing to be stamped out.
However, it is not simply a question of retaining strict liability offences for behaviour which needs to be stamped out. Murder for example is deprecated but is not a strict liability offence. Retention of strict liability offences seems to be based on pragmatic principles, such as the difficulties of having to prove mens rea in organizational struc-tures involving a hierarchy of responsibility where quasi criminal acts are concerned, i.e., those acts which need to be stamped out but not stamped out too hard. The article by Smith, J. C. 'Guilty without Intent', New Society, 17th April, 1969, gives an excellent summary of strict liability offences.
12. See Justice of the Peace, 1966, Vol. 130, p. 303-309.
13. Ibid., Vol. 132, p. 378-416.
14. See Criminal Law Review, July, 1968, p. 380-384.
15. See Justice of the Peace, 1969, Vol. 133, p. 188-205.
16. Ibid., p. 191.
17. Yeandel v. Fisher reported in Justice of the Peace, 1965, Vol. 129, p. 546.
18. The second Brain Report recommended the establishment of an Advisory Committee to survey the whole field of drug taking and call attention to any development or area that might be a cause for con-cern or worthy of closer study. The Report on Cannabis was one which stemmed from demands to provide a thorough review of can-nabis and its relationship to the law.
19. Cannabis, H.M.S.O., para. 10, p. 33, op. cit.
20. Metropolitan Police Act, 1839, gave power for a Police Constable or the owner of the property involved to arrest without a warrant per-sons suspected of committing certain offences relating to property.
21. Schur, E. M. Crimes Without Victims, Prentice Hall, 1965, p. 169.
21. The 1967 Road Safety Act does not apply to drugs; it applies only to alcohol when alcohol exceeds the prescribed limit of 80 milligrams per 100 millilitres of blood. Prosecutions involving drugs and driving must still take place under Sec. 6 Road Traffic Act 1960, and a prosecution takes place if a person is unfit to drive through drink or drugs. Successful prosecutions have to establish that the driver's ability is impaired—a much more difficult test than under the 1967 Act as the term "impaired" is open to subjective evaluation of prosecution and jury.
23. In the House of Lords debates 14.1.71.

 

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