Do trends in criminal statistics reflect changing attitudes in the English criminal justice system towards drug offences?

The question posed in the title of this paper is: "Do trends in criminal statistics reflect changing attitudes in the English criminal justice system towards drug offences?". To answer this question I will look at two major decision making moments within the criminal justice process: the moment where the police have to decide whether to caution or to prosecute, and the moment where the judge has to decide which sentence to pass. The assumption is that the choices made at these moments can reveal part of the attitude towards drug offenders held within the criminal justice system.

This paper partly builds on an article by Mike Collison, named "Drug Crime, Drug Problems and Criminal Justice: Sentencing Trends and Enforcement Targets." In this article, Collison argues that - despite an official bifurcation rhetoric - on the basis of the criminal justice statistics it cannot be concluded that police and the courts have followed this trend in practice and that it seems the case that the criminal justice system still deals with users rather than with traffickers.

The material Collison bases his conclusions on consists mainly of Home Office statistics over the period 1987-1991, and focuses on offences involving heroin and cocaine. In this paper I want to see whether his conclusions still hold, or whether the way the criminal justice system deals with drug offenders has changed since 1991. For this purpose I will analyze the statistics available for supply, possession with intent to supply, possession and import and export offences for the period 1987 - 1995, the latest figures available.

Cautioning

The initial decision whether to prosecute or not lies with the police. If they think there is enough evidence to prosecute they can either caution the suspect or send the file to the Crown Prosecution Service. To issue a formal caution it is necessary that the offender admits guilt.

Recently, the Association of Chief Police Officers has set out guidelines with regard to the cautioning of drug offences. The core of these guidelines consists of a matrix in which the balance between aggravating and mitigating factors determine the offender’s suitability for cautioning. Police Forces are free to decide whether to follow these guidelines, and the interpretation may vary a lot between different forces, but the majority of the Police Forces in England have now adopted a cautioning policy in dealing with minor drug offences. Whereas the caution is generally used for first time cannabis possession, some forces have extended this policy to all drugs, including heroin and cocaine.

Over the ten year period studied we can see that the use of cautioning has risen for all categories of drug offences. However, the rise in the use of cautioning has not been spread evenly over the categories: the use of cautioning for all drug offences has almost tripled from 18% to 52% of the offenders dealt with, but this figure is severely skewed by a lower increase for possession offences. The use of cautioning for production, supply and possession with intent to supply has increased sixfold.

Figure 1: Trends in the use of cautioning for various drug offences (1986=100).

The increase in the use of cautioning has not taken place very gradually: the cautioning rate for possession offences has hardly changed over the past five years, and the cautioning rate for production offences has stabilized for the last three years. Since 1993, we can even see a slight decrease in the use of cautioning for possession with intent to supply and supply offences.

Over the period 1987-1991 Collison noted an increase in the use of cautioning for heroin, but a decrease for cocaine. Furthermore, he noted that the caution did not figure as a response for any of the more serious offences involving Class A drugs. He was therefore careful with his interpretation of these developments.

Table 1: Cautioning rates

As said, the use of the caution has increased a lot since 1991, and Collison’s findings do not reflect the current situation: the use of the caution has increased for the possession of all Class A drugs to between 15% for LSD and 30% for amphetamines. Furthermore, the caution is not only used for possession of Class A drugs anymore, but also figures clearly for supply and production offences. The increase of the use of the caution for Cannabis offences has continued.

However, despite a change in the situation, the same reservations Collison had in interpreting his conclusion still hold. The increase in the use of the caution could be a sign of a harm reduction policy being adopted: it is generally recognized that there are important negative and counterproductive consequences that can result from criminalisation, for example with regard to job opportunities, which should not be overlooked.

But, there are other explanations for the increase found. An increase in cautions could also be the result of an increase in cautioning of offenders of a lower tariff (net widening), either as the result of "accidental" apprehension in bigger operations primarily aimed at drug suppliers or as the result of higher street level activity aimed at intelligence gathering. In this case we witness an increase in the number of drug offenders that is dealt with by the criminal justice system.

On the other hand, the increased use of the caution can be the result of so called organizationally generated imperatives, such as time, resources and efficiency; after all the costs of sending someone to court are considerably higher than the costs of cautioning, and if every drug offender would be sentenced in court the system would soon be clogged up. Although the result here is that less people end up in the criminal justice system, it should be realized that in this case, the necessary support to keep these people out of the system will probably be lacking.

The fact that the caution is often only used for first time offenders has important implications. The very nature of drug use will make it likely that offenders are not arrested just once. Without any further measures the caution will therefore often only be a delay of prosecution. Recidivism figures could be very revealing in this case, but are unfortunately not available. However, we do see that this problem is recognized and in some police forces referral schemes are set up to get drug offenders who get cautioned in touch with drug workers.

The stabilization of the use of cautioning we saw in the last few years suggests that a plateau has been reached. What the reason for this is, is difficult to say. It might suggest a reverse trend: a stabilization of the number of low-tariff offenders dragged into the criminal justice system or a halt in the organizational need to keep people out of the system. It could also mean that the maximum number of offenders deemed suitable for cautioning according to national guidelines - those who have not been cautioned before and admit committing the offence - gets a caution: after all the caution is a warning that the next time the consequences of an offence might be more serious, and repeated warnings without any action are felt to undermine the credibility of the system.

If we look at the current figures I think we must ask ourselves whether the caution is not grossly underused, at least for Class A drug offenders. More information is needed to be able to draw firm conclusions, but I will point at some possible considerations.

Although the cautioning rate for possession of heroin and cocaine has been increasing slightly, the majority of the users will still end up in court for simple possession. One explanation for this might be that Class A drug offenders are less likely to admit their offence, which is a necessary prerequisite for a caution. Another factor can be that Class A drug offenders are more likely to re-offend which makes them unsuitable for a caution. It is also suggested that Class A drug offenders are more often considered to be in need of help, and that the court is perceived as being able to provide this. Whether this perception is right is doubtful and will be looked at in the second half of this paper.

The cautioning rate for supply offences is low, no higher than 12% for all drug offences. This goes against the knowledge that the majority of suppliers are small scale drug dealers who deal to fund a drug habit: they are therefore more in need of help than punishment and a caution would probably be more appropriate than a court procedure. However, it is felt that even a small scale supplier makes it possible for other people to develop a habit and should therefore generally not be distinguished from the big dealer. Whether this is considered a valid argument is disputable. A similar but more liberal argument is that when your habit affects not only yourself but society, it is justified to take the responsibility to do something about your habit away and use the court to make a treatment order enforceable.

It seems striking to see that the cautioning rate for possession with intent to supply at 6% is even lower than for supply. However, the knowledge that intent to supply offences often concern larger amounts of drugs and are more difficult to prove - and therefore will be less readily admitted - can explain this difference.

The relatively high cautioning rate for cannabis possession is seen in a different light when we turn the figure around: no less than 40% of those caught in possession of cannabis end up in court. However, the interpretation of this figure is difficult as more information about the offence and offender characteristics such as recidivism, contempt of the court, the use of concurrent sentencing and accompanying crime is needed to be able to draw firm conclusions, and this cannot be got from statistics.

Sentencing

The second decision making moment I wanted to discuss is the judge’s decision which sentence to pass. Once the drug offender is in court, the judge has a wide range of choices. I will restrict myself in this paper to the sentences discussed by Collison, i.e. the discharge, the probation order, the fine and immediate imprisonment, which are numerically the most important ways of disposal of drug offenders.

Discharge

A way of disposing of offenders similar to the caution is the unconditional discharge. Collison noted a rise in the use of the discharge for both heroin and cocaine between 1987 and 1991, and wondered if this could be seen as "the product of (...) new sensibility".

The trend in the five years following is less straightforward, and depends on which percentages we look at. If we look at the discharge rate in relation to only those offenders found guilty in court, we find an overall increase of the use of the discharge for possession of all drugs and for supply of cocaine. There is also a slight increase for all cannabis offences. The use of the discharge has gone down only for possession with intent to supply and supply of heroin.

However, if we look at the number of offenders who received a discharge as a percentage of all offenders found guilty - including those cautioned - we get a slightly different picture: we see that the trend found by Collison has almost completely reversed and that the levels are back to those of 1987. The only exception to this is the possession of heroin, for which the use of the discharge has decreased slightly since 1991, but is still considerably higher than in 1987. Therefore, even if the first figures could be a sign of new sensibility on the part of the courts, the proportion of all offenders who receive a discharge remained much the same.

Table 2: Use of discharge as proportion of all offenders

Collison noted that a rise in the use of the discharge could also be the result of an increase in questionable cases put before court. If we look at the number of persons dealt with in court who are found not guilty we find support for this theory: trends in the proportion of people found not guilty closely follow the proportion of discharges. Firm conclusions cannot be drawn without further information, but any change in the use of the discharge that can be found seems no good indicator of a change in attitude within the criminal justice system.

Fine

Collison found an increase in the use of the fine for almost all offences, which, as he said, "completely defies the logic of both harm reduction and getting tougher on drugs". This increase has reversed for the majority of drug offences in the subsequent five years. For most cannabis offences the use of the fine has gone down considerably and for the import and export of cocaine the use of the fine has been reduced with a factor 4 compared to 1987. Only for the supply of cocaine and possession of heroin the use of the fine has increased since 1987, but in the case of heroin there has been a strong downward trend in the last years. These developments might suggest that the fine has recently been recognised as an inappropriate response to drug offences.

Table 3: Offenders fined as percentage of all offenders dealt with.

Probation order

The probation order is the sentence that is probably most clearly related to harm reduction ideas. The use of this sentence has gone up since 1987 for almost all drug offences. Collison noted a downward trend in the use of the probation or supervision order for possession offences but this trend has been strongly reversed. Only possession of heroin with intent to supply has received fewer probation orders than in 1991. The use of the probation order for import and export offences is still negligible, but this can be explained by the nature of the offences dealt with in court and the fact that the offenders in this category will often not be addicted.

Table 4: Use of probation or supervision order as proportion of all offenders

Immediate imprisonment

With regard to immediate imprisonment Collison noted an important decline for all offences apart from the import and export of cocaine. This trend has changed quite drastically in the following years: for almost every offence the incarceration rate has gone up since 1991, although in most cases the 1987 level was not reached again. There are a few exceptions: the use of imprisonment for supply of cocaine has gone down over the whole period and the use of incarceration for possession offences can be seen to have stabilized for all drug types. However, on the whole we must conclude that the use of imprisonment as a penalty for the more serious drug offences is growing.

Table 5: Offenders imprisoned as a percentage of all offenders dealt with

What is the situation now?

So what have we got? The use of the caution has increased dramatically, until around 1992. This increase could be explained in many ways, but for non-possession offences this increase has been so great that it seems likely that at least part of it is the result of a different attitude. However, the upward trend seems to have halted, and it could be argued that for the more serious offences the caution is still underused.

In court we see an important decrease in the use of the fine and an increase in the use of the probation order. These findings are more optimistic than the ones found by Collison five years ago, and suggest that the criminal justice system has taken the harm reduction message to heart.

The trend in the use of incarceration is less straightforward, but in recent years we have seen an upward trend for all offences apart from possession. The interpretation of this is not clear. For the most serious offences an increase in the use of imprisonment seems to confirm the bifurcation process. However, it is more likely that also for the small scale supplier imprisonment is used more often, and this development does not fit in a harm reduction approach.

It has been suggested that prison is often mistaken by judges as a place where addicts will lead a drug free life and where they will receive help to fight their habit. However, it has become clear that the opposite is often the case. If this is true we can say that the message of harm reduction is being taken on by the criminal justice system, but that it lacks the necessary knowledge and expertise to make the right choices. Education of those making the decisions will in that case be an important step forward.

Be that as it may, the question whether the criminal justice system is the right place to deal with drug offenders remains. This is a question that cannot be answered in the scope of this paper. However, the fact that still around 2000 people were sentenced to immediate imprisonment for the simple possession of cannabis, that 23% of the heroin users got a fine, and that no more than 9% of those found in the possession of cocaine got a probation or supervision order shows that we are still a long way from an effective way of dealing with drug offenders.

Table 6: Current figures