RESERVATIONS BY MR. MICHAEL SCHOFIELD
Reservations to Paragraphs 85-90
1. I agree in the main with the first 84 paragraphs of this report. In particular I agree with the last part of paragraph 81 that the present penalties are altogether too high and I would add that the sentences being given at present are too high. Paragraph 80 indicates- that there has been greater emphasis on fines and imprisonment for the possession of cannabis, but less use of probation; average fines for possessing cannabis have been almost as high as for dangerous drugs such as heroin. The same paragraph shows that in 1967 about a quarter of all cannabis offenders were sent to prison and 17 % of first offenders were imprisoned. A further study of Table C on page 26 shows that even those convicted of posses-sing small amounts of cannabis run the risk of being dealt with quite severely. Of the 2,419 people who were convicted of possessing less than 30 grams of cannabis, 373 (15%) were imprisoned. This table also shows that 1,857 persons without previous convictions for any type of offence were convicted of possessing less than 30 grams of cannabis; 237 (I 3 %) of these first offenders were sent to prison, 119 of them were aged 25 or less.
2. In paragraphs 86, 87 and 88 my colleagues seem to be putting all their trust in the behaviour of the police and the discretion of the judiciary, but the information given in the previous paragraph of this reservation does not inspire trust. It will still be possible to give prison sentences to offenders possessing small amounts of cannabis when they are what my colleagues call "difficult individual cases", but they seem to hope that magistrates will start to give less severe sentences after reading this report. Government reports may be the prelude to legal reform, but they are not a particularly good way of enlightening the judiciary
3. There is an increasing tendency in modern criminology to limit the sentencing powers of the judiciary. Indeed section 39 of the Criminal Justice Act 1967 (which provides for suspended sentences) removes considerable sentencing powers from the Courts (particularly magistrates) although this Act is quoted by my colleagues (paragraph 88) as a reason for retaining heavier penalties.
4 Nothing emphasizes the generation gap more than a drug offence. The drug user and the magistrate are basically out of sympathy. The cannabis-user is partaking in a form of enjoyment that is how he looks at it which was unknown to the magistrate when he was young. In addition to this the clothes, hair style and attitudes of many young drug-takers are unlikely to please the magistrate. Even if we adults feel inclined to put our trust in the magistrate’s ability to understand these differences in the generations, it is quite certain that most of the young people of this country do not believe this wide gap can be bridged except by a very few. Why should they have to take their chance whether they get an informed and understanding magistrate or not? The administration of the law should not be a matter of luck.
5. Like my colleagues I would like to distinguish more clearly between possession intended for use and possession intended for supply. Unlike them I think this distinction should be written into the law. I think it would be preferable to
base the distinction on the quantity found in possession. Accordingly I suggest that:
1) Illicit possession of up to 30 grams, leaves or resin, should be a summary offence only, punishable on a first or subsequent conviction by a maximum fine of œ50.
2) Illicit possession of any amount larger than 30 grams should be punishable
(a) on summary conviction by a fine not exceeding f100 or imprisonment for a term not exceeding four months;
(b) on conviction or indictment a fine or imprisonment for a term not exceeding two years or both.
The existing provision under the Dangerous Drugs Act 1965. whereby proceedings on indictment can only be instituted by or with the consent of thc Attorney General or the Director of Public Prosecutions, should be retained.
6. 1 am not impressed by my colleagues’ arguments (paragraph 85) against sentences based on the amount of cannabis found in a person’s possession:
(a) It is suggested that it would be tiresome for the police to determine the exact amount of cannabis found in possession. In fact, however, the police already measure the amounts of cannabis seized and the Courts are influenced by the amount in determining sentence. Therefore it would seem to be imperative that the police should always be exact about the quantity found in possession and defence lawyers should have the right to demand adequate safeguards. For the same reason it is essential to establish equivalent amounts for synthetic cannabinols when these be-come widely available. If the sentencing policy suggested in the previous paragraph were to be adopted, there would be less work for the police for only a small number of cases (11% in 196n will be found in possession of more than 30 grams.
(b) I agree that the introduction of a quantitative formula might have an effect on trafficking: it will tend to make it more difficult. In such circumstances the cannabis users would wish to buy from the supplier in small quantities. In order to sell the same amount the supplier would have to make more sales; consequently he would be more often at risk and therefore more likely to be caught by the police. We have learned that a substantial part of the smuggling of cannabis is in small amounts (paragraph 3D and is not exploited to any significant extent by professional criminals (paragraph 38). When large illegal imports evade the Customs, they have to be broken up and sold in small amounts. If a quantitative formula were to be introduced, the cannabis would have to be distributed in even smaller amounts: it would make dealing in cannabis, not more, but less attractive to the so-called "professional criminals". The profit to be made on 30 grams of cannabis is not enough to attract big time crooks.
7. Of the 2,419 persons convicted of possessing less than 30 grams of cannabis in 1967, only 191 (under 8 /0) had previous convictions for drug offences. This may suggest that most first offenders give up cannabis after a conviction for possession: a more probable explanation is that the convictions only reflect a very small proportion of the total number of cannabis users and detection is mostly a matter of chance.
8. I agree with the views expressed in paragraph 90. If the objective is to bring about a situation in which it is extremely unlikely that anyone will go to prison for an offence involving possession for personal use, then I think my suggestions are more likely to bring this about than the views expressed in this report, which may be forgotten by the time the recommendations become Acts of Parliament. I also agree with the recommendation (in paragraph 90) that the situation should be reviewed over the next three years. If some evidence is produced which shows that cannabis is socially harmful or disruptive, then the penalties can be in-creased. A recent example (section 7 of the Dangerous Drugs Act 1967 in which penalties were increased from two to ten years) suggests that time can usually be found for a Bill to increase penalties, but as a matter of practical politics any reform of the law which involves reducing penalties takes longer.
RESERVATIONS TO PARAGRAPH 95
9. I agree with paragraph 94 in which it is recommended that section 5 of the Dangerous Drugs Act 1965 should be repealed in relation to premises to which the public has no access. I agree that it should still be an offence for occupiers of premises open to the public to "permit" premises to be used for smoking or dealing in cannabis, and for managers to allow public premises to be used for these purposes. I suggest that knowledge should be an ingredient in the offence and, unlike my colleagues, 1 recommend that the onus should be on the prosecution to show that the occupiers or managers were aware that cannabis was being used or sold on these public premises.
RESERVATIONS TO PARAGRAPH 97
10. I agree with my colleagues that if cannabis were excluded from the Dangerous Drugs Act 1965 the case for retaining police powers of search and arrest without warrant would have to be reopened. I agree that it is difficult to consider these police powers in relation to cannabis alone, but as we are recommending new legislation to deal separately with cannabis, it is our duty to make some recommendation. Without doubt there are some occasions when the police search for one drug and find another. But there are other occasions when the reasonable grounds for suspicion relate only to suspected cannabis-use. Consequently I believe it is necessary to state that the existing extensive police powers of search and arrest are not necessary as we all agree that taking cannabis in moderation is a relatively minor offence (paragraph 87).
11. 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 "reasonably" to prevent the over-zealous from stopping and searching anyone for anything, anywhere. Young people especially are already being subjected to indiscriminate searches where no grounds for reasonable suspicion exist. Parliament bad been led to assume that the purpose of the Dangerous Drugs Act 1967 was to deal with drugs such as heroin, but large-scale searches for cannabis are now made under section 6 of this act. This section was put in as a late amendment and accepted by an unwatchful House of Commons almost without discussion. It should be repealed.
RESERVATIONS TO PARAGRAPH 101
12. The previous eleven paragraphs give the reasons for my dissent to items (7), (9) and (10) of paragraph 101. 1 agree with items (1) to (6) and (8h (11) and (12)