January-June 2016
ISSN 2050-005X (Online); 978-1522795582 (ISBN-13); 1522795588 (ISBN-10)
This article outlines the criminalisation of drug possession in the UK, with reference to the Misuse of Drugs Act 1971, and discusses the inadequacies of criminalisation. It presents the theoretical concept of paternalism and the sub-concepts of soft and hard paternalism. These are compared in order to illustrate the current legislative situation in theoretical terms and to provide a suitable backdrop to advocate for the decriminalisation of drug possession on the basis of the un-paternalistic harm such criminalisation causes. The particular social consequences an individual may currently face as a result of an approach based on criminalisation are articulated. The reforms made in Portugal, regarding the decriminalisation of drug possession, are examined in detail and the suitability of introducing such reforms under UK legislation are assessed. Using the evidence gained from the reforms made in Portugal this paper advocates for the decriminalisation of drug possession in the UK, with the view to introducing a softer paternalistic approach. The connotations of decriminalisation are briefly discussed, with legalisation being dismissed as an option, and submissions are made for an approach that places a focus on healthcare and education in place of criminal sanctions.
Keywords: Drugs, Paternalism, Decriminalisation, Portugal, Reform
1 Damien Gayle, ‘Police won’t target pot smokers and small-scale growers, say commissioners’ (The Guardian, 22 July 2015) <http://www.theguardian.com/society/2015/jul/22/police-wont-target-pot-smokers-small-scalegrowers-commissioners> Accessed 3 September 2015.
2 Christopher Hooton, ‘UK weed legalisation petition hits 150,000 signatures, will get Parliament debate date in September’ (The Independent, 27 July 2015), <http://www.independent.co.uk/news/uk/uk-weed-legalisation-hits-150000-signatures-will-getparliament-debate-date-in-two-days-10417757.html> Accessed 14 August 2015.
3 Consider legislation passed requiring the wearing of a seatbelt, banning smoking indoors and prohibiting the use of a hand held mobile phone whilst driving. The introduction of each of these was based on paternalistic motivations (to an extent), and each has proved successful in terms of protecting the individual from themselves.
4 Road Vehicles (Construction and Use) Regulations 1986, SI 1986/1078.
5 Joel Feinberg, Harm to Self: The Moral Limits of the Criminal Law (Volume 3, New York: Oxford University Press, 1986) xvii.
6 Gerald Dworkin, ‘Paternalism’ (Stanford Encyclopedia of Philosophy, 4 June 2014) <http://plato.stanford.edu/entries/paternalism/> Accessed 25 November 2015.
7 As defined under the Mental Capacity Act 2005, s 2(1).
8 Op. cit. no. 6.
9 Misuse of Drugs Act 1971, s 5(2).
10 In the context of Section 2 Misuse of Drugs Act 1971, the authors are only concerned with the possession of controlled substances.
11 It is recognised by the authors that criminalisation also finds roots in the protection of society as a whole; the theory of which can be found in the Harm Principle.
12 Prison Reform Trust, ‘Prison the Facts’ <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Prisonthefacts.pdf>, 7, Accessed 3 October 2015.
13 A. B. Bucknall, J. R. Robertson, ‘Deaths of Heroin Users in a General Practice Population’ (1986) 36(284) Journal of the Royal College of General Practitioners 120.
14 R Jurgens, A Ball, A Verster, ‘Interventions to Reduce HIV Transmission Related to Injecting Drug Use in Prison’ (2009) 9(1) The Lancet 57, 58.
15 John C Coleman and Leo B Hendry, The Nature of Adolescence (Third Edition, London: Routledge, 1990) 128.
16 Ibid.
17 Timothy A Hickman, ‘Why Strict Drugs Laws Work (And Why They Do Not)’ (2010) 2(4) Amsterdam Law Forum <http://amsterdamlawforum.org/article/view/160/328> Accessed 10 August 2015.
18 Damien Gayle, ‘Police won’t target pot smokers and small-scale growers, say commissioners’ (The Guardian, 22 July 2015), <http://www.theguardian.com/society/2015/jul/22/police-wont-target-pot-smokers-small-scalegrowers-commissioners> Accessed 3 September 2015.
19 In particular, Portugal faced real issues with the increasing prevalence of intravenous heroin use.
20 If we measure Portugal’s success by those who are pushing for repeal, there are few.
21 All psychoactive drugs, including cocaine and heroin are covered by the legislation. The Portuguese system does not draw a distinction between so called ‘soft’ and ‘hard’ drugs.
22 Defined as the average individual quantity sufficient for 10 days’ usage for one person. (Decriminalization of Drug Use Act). Note that criminal sanctions remain possible for those growing, trafficking or selling illicit drugs.
23 Glenn Greenwald, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies (Cato Institute, 2007) 7 <http://object.cato.org/sites/cato.org/files/pubs/pdf/greenwald_whitepaper.pdf> Accessed 30 November 2015.
24 One impassioned comment was: “There will be planeloads of students heading for [Portugal] to smoke marijuana and take a lot worse, knowing we won’t put them in jail. We promise sun, beaches and any drug you like.” [Quoted in Daniel McGrory, ‘Portugal Police Won’t Arrest Drug Takers’ Times (London, 14 July 2001)].
25 Op. cit., no. 24, 6.
26 Op. cit., no. 23, 9.
27 Note that referrals can come from physicians as well. Given the confidential nature of the doctor/patient relationship and the breach of confidence this would necessitate though, this would likely be a rare case.
28 Op. cit., no. 23, 9.
29 Op. cit., no. 23, 1.
30 Mark Thornton, ‘Portugal’s Experiment in Drug Decriminalization Has Been a Success’ (Mises Daily, 2015) <https://mises.org/library/portugal%E2%80%99s-experiment-drugdecriminalization-has-been-success> Accessed on 25 November 2015.
31 This is a notion further emphasised by Zeeshan Aleem in, ‘14 Years After Decriminalizing Drugs Here’s What Portugal Looks Like’ (Policy.Mic, 11 February 2015) <http://mic.com/articles/110344/14-years-after-portugal-decriminalized-all-drugs-here-s-whats-happening#.dGZIBu2FS> Accessed on 25 November 2015.
32 The policy decision has been termed ‘a disastrous failure’ in M Pinto Coelho’s, The ‘Resounding Success’ of Portuguese Drug Policy: The Power of an Unattractive Fallacy (Lisboa, Associação para uma Portugal livre de drogas, 2010).
33 Cited in Caitlin Hughes and Alex Stevens, ‘A resounding success or a disastrous failure: Re-examining the interpretation of evidence on the Portuguese decriminalisation of illicit drugs’ (2012) 31 Drug and Alcohol Review 101, 107–108.
34 John C Coleman and Leo B Hendry, The Nature of Adolescence (Third Edition, London: Routledge), 128.
35 Zeeshan Aleem, ‘14 Years After Decriminalising All Drugs, Here’s What Portugal Looks Like’ (Policy.Mic, 11 February 2015) <http://mic.com/articles/110344/14-years-afterportugal-decriminalized-all-drugs-here-s-what-s-happening> Accessed 9 September 2015.
36 Op. cit. no. 23, 15–16.
37 Prison Reform Trust, ‘Prison the Facts’ <http://www.prisonreformtrust.org.uk/Portals/0/Documents/Prisonthefacts.pdf>, 7, Accessed 3 October 2015.
1 † Ellen Wright and Kate Harker are LLM graduates from Teesside University, Middlesborough, UK.
(2016). Misusing Drugs and Misapplying Paternalism: Injecting Portuguese Decriminalisation into the UK Justice System. Legal issues Journal, 4 (1), https://www.legalissuesjournal.com/article/04-01-13012016/
