Chapter Six: Enforcement

Introduction

1 How the law is implemented is critical for its effectiveness and credibility. We have discussed penalties and sentencing, together with the offences to which they apply, in Chapters Four and Five. Penalties determine whether or not an offence is ‘arrestable' under section 24 of the Police and Criminal Evidence Act 1984 (PACE). We have therefore set out in Chapter Five our recommendations on powers of arrest for possession offences alongside our recommendations for reducing the maximum penalties for those offences. In this chapter we look at two major issues in the process leading up to prosecution: police powers of stop and search - these are frequently the means by which arrests for possession are achieved; and the exercise of police discretion to caution, warn or reprimand offenders rather than prosecute. We also discuss analogous non-prosecution options in Scotland (warning letters and fiscal fines) and compounding by H.M. Customs and Excise.

Stop and search

2 Section 23 of the MDA enables a constable, if he 'has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of the Act', to ‘search that person and detain him for the purpose of searching him'. The officer may also search any vehicle in which he suspects that the drug may be found and for that purpose require the person in control of the vehicle to stop it. These are discretionary powers and their impact depends on how the police exercise this discretion. Code A issued under the Police and Criminal Evidence Act 1984 (PACE) contains statutory guidelines on the exercise of this discretion and the results have been closely monitored [1]. Customs officers have separate powers to search vehicles under section 163 of CEMA and persons under section 164. They too are subject to Code A of PACE.

3 Code A gives guidance on what constitutes 'reasonable suspicion'. It says that there must be an objective basis for it. Relevant factors include time, place, behaviour and information received. People must not be judged by appearances: the code states 'reasonable suspicion can never be supported on the basis of personal factors alone without supporting intelligence or information. For example, a person's colour, age, hairstyle or manner of dress, or the fact that he is known to have a previous conviction for possession of an unlawful article, cannot be used alone or in combination with each other as the sole basis on which to search that person. Nor may it be founded on the basis of stereotyped images of certain persons or groups as more likely to be committing offences’. There is an exception for members of gangs who habitually carry knives, other weapons or controlled drugs and may be recognisable by jewellery, insignias, tattoos or other features known to identify them.

4 In England and Wales over a million stops and searches of persons or vehicles were carried out in 1997-98 under section 1 of PACE and related legislation, including the MDA. About a third of these were for drugs. Since 1990 the numbers of stops and searches for drugs have gone up steadily, from 97,800 in 1990 to 343,900 in 1997-98. The numbers of arrests following stops and searches for drugs have also risen, from 16,000 in 1990 to 39,000 in 1997-98. But the proportion of searches leading to arrests has fallen from 16% to just under 12% in the same period. It is clear from the annual Home Office Statistics of Drug Seizures and Offenders that the great majority of such arrests followed the discovery of cannabis and the most usual outcome was a caution.

5 Of the 343,000 stops and searches for drugs in England and Wales in 1997-98, nearly half(157,230 or 46%) were carried out by the Metropolitan Police. The proportion of stops and searches leading to arrests for drugs offences varied between police forces, the lowest being 6% (Wiltshire) and the highest 27% (City of London). Most forces achieved between 11 and 14%.

6 Figures for stops and searches in Scotland [2] show that the total of persons stopped in 1998/99 was 29,045 and that drugs were found on 5,935 or 20%. This compares with a proportion of 27% on whom drugs were found in 1997/98 and 23% in 1996/97. The figures appear to be compiled on a different basis to England and Wales because there is no reference to vehicle stops.

7 Stop and search is an important means of detecting offenders. The Metropolitan Police Service examined [3] over 8000 arrest records taken from a two-month period in five London divisions. Almost 850, or just over 10%, had arisen from a stop and search. One-third of these were for drugs offences. When crimes cleared up were examined it was found that a quarter of all clear-ups for possessing drugs with intent to supply and two-thirds of those for possession had been achieved after an initial stop and search. Over 60% of all arrests following a stop and search led to a charge or caution, in 19% no further action was taken. The remaining 21% were dealt with in various other ways.

8 The question has been raised whether strip searches are permitted as part of a stop and search under section 23 of the MDA. Guidance on such searches is, however, given elsewhere in the PACE codes (Part B of Annex A to Code C, which deals with searches of people in custody at police stations). Code A has now been amended to make it clear that all searches involving exposure of intimate parts of the body shall be conducted in accordance with paragraph 11 of Annex A to Code C and not in a police van. We welcome this.

9 Home Office research [4] preceding the enactment of the Police and Criminal Evidence Act 1984 suggested that black people were three times as likely to be stopped and searched as white people. A study [5] in 1997-98 of the ten police forces in England and Wales with the highest percentage of ethnic minorities found that in these forces' areas 'overall black people were five times more likely to be stopped than whites'. In the combined Metropolitan and City of London police areas, 38 white people were stopped for every 1,000 population as compared with 66 Asian people and 181 black people.

10 As the race and criminal justice system statistics [6] show, the actual number of white people stopped and searched for any reason is still nearly eight times as large as any other group. There are, however, significant regional variations. In inner city areas people from the minority ethnic communities are far more likely to be stopped and searched than elsewhere. Clearly demographic factors play some part in explaining the far larger proportions of members of ethnic minorities searched in inner cities as compared to the rest of England and Wales. The differential impact of stop and search may also be as much socio-economic as racial. In our meetings with young people we were struck by how much more often young people from the inner London boroughs had been in contact with the police than young people in outer London. A proportion [7] of stops and searches arise from action taken in response to information from the public, which may be consciously or unconsciously biased.

11 We accept that the power to stop and search is essential to enforcing the law on drugs and we have made no recommendations for any diminution of police powers in this respect. Stop and search is a crucial evidence-gathering power. It may also disrupt local markets and visible policing is important where trafficking is a nuisance. But stop and search is, as the Advisory Council on the Misuse of Drugs pointed out in 1994 [8], one of the most controversial powers as well as one of the most important.

12 The evidence to us continues to confirm the controversial nature of the power. It is intrusive, gives opportunities for discrimination and can undermine police-community relations. Members of the public often take exception to the manner in which stops and searches are conducted and young people, who are particularly prone to being stopped, see it as an unjustified interference in their freedom of movement. It is frequently suggested that the police use their stop and search powers as a substitute for the former 'sus' laws. The most recent research [9] suggests that the police may sometimes use the power for intelligence gathering but that this can seem like harassment of people who have come to police notice in the past. The power may also be used as a form of social control for breaking up or moving on groups of young people. None of these purposes is covered by the PACE Codes.

13 As much resentment may be caused by the manner in which stops are made as the fact that they take place at all. Code A has been amended to give guidance to police officers on this point as follows:-

'...in general a brief conversation or exchange may be desirable, not only as a means of avoiding unsuccessful searches, but to explain the grounds for the stop/search, to gain co-operation and reduce any tension there may be surrounding the stop/search.'

We share the view of the Advisory Council on the Misuse of Drugs [10] that the main need is for quality control and close monitoring of the outcomes of stop and search. The importance of monitoring and supervision is also now recognised in a recent amendment to Code A as follows:

'Supervising officers, in monitoring the exercise of officers' stop and search powers, should consider in particular whether there is any evidence that officers are exercising their discretion on the basis of stereotyped images of certain persons or groups contrary to the provisions of this Code. It is important that any such evidence should be addressed. Supervising officers should take account of the information about the ethnic origin of those stopped and searched which is collected and published under section 95 of the Criminal Justice Act 1991.'

We support the current efforts by the police to manage the tactic more fairly and effectively. The aim should be to have fewer stops and searches but a higher proportion of them with successful outcomes. Such steps are also necessary in order to ensure that powers of stop and search are compatible with the European Convention on Human Rights, since that requires powers of detention to be proportionate and objectively justifiable.

Powers of arrest

14 The powers of arrest in section 24 of the MDA now apply only in Scotland. In England and Wales they have been replaced by the powers of arrest set out in sections 24 and 25 of the Police and Criminal Evidence Act 1984 (PACE). If an offence carries a maximum penalty of imprisonment for five years or more it is an ‘arrestable offence' for the purposes of section 24 of PACE. In Scotland, where PACE does not apply, police officers have powers of detention for up to six hours under section 14 of the Criminal Procedure (Scotland) Act 1995 for any offence punishable by imprisonment. This is not a power of arrest: it enables the police to detain suspects for the purpose of facilitating the carrying out of investigations. In addition section 24 of the MDA remains in force.

15 We set out these powers of arrest and detention in detail in Chapter 5 because if, as we recommend, penalties for possession offences are reduced, the powers of arrest and detention that apply at present would no longer do so unless the law were amended. Even under the present law, cannabis possession offences would not be arrestable in England and Wales under section 24 of PACE or attract the power of detention in Scotland under the Criminal Procedure (Scotland) Act 1995 if; as we recommend in Chapter Three, cannabis is transferred from Class B to Class C. We have recommended that special provision outside PACE should be made to retain the present police powers of arrest in England and Wales for possession of Class A and Class B drugs. We have concluded that no change should be made to the powers of arrest for drugs in Class C. We have similarly concluded that the effect of the present powers of detention in Scotland under section 14 of the Criminal Procedure (Scotland) Act 1995 should be preserved for Class B drugs but not extended to Class C when cannabis is transferred there. Powers of arrest under our proposals will in our view remain adequate for police needs and proportionate to the offences concerned.

Use of discretion

16 The use of discretion in deciding whether or not to charge or prosecute has been of great importance in enforcement of the drugs laws in the last two decades. Had diversion, largely through cautioning, not taken place on the scale that it has done, the courts would have been unable to cope. We set out below the main features of the way discretion in this area has operated together with our conclusions on how it should be regulated in future.

Cautioning

17 The caution is the last step in a formal process After arrest the offender is taken to the police station, where he is treated in accordance with the procedures laid down by the Police and Criminal Evidence Act 1984 and its associated codes. If, but only if, the offence is admitted, a caution may be administered (in the case of young people under the age of 18 by a uniformed Inspector in the presence of parents or an appropriate adult). In most cases the offender is released on police bail pending a decision and the caution follows at a later date.

18 A caution is not a criminal conviction but it may be cited in court as part of the defendant's criminal record. This should be explained to the offender when the caution is administered. Information about cautions may also be given in criminal record certificates, but not criminal conviction certificates, issued under Part V of the Police Act 1997. Under section 112 of this Act, the Secretary of State must issue a criminal conviction certificate to any individual who applies for one and pays a prescribed fee. The certificate gives the details of the criminal convictions of the applicant, unless they are spent under the Rehabilitation of Offenders Act 1974. Cautions should not be included since the certificate is confined to convictions. Such a certificate is likely to be needed by people whose potential employers make it a condition of employment that the applicant proves that he has no criminal record.

19 For certain appointments, the Secretary of State must issue criminal record certificates under sections 113 or 114 or enhanced criminal record certificates under sections 115 or 116 of the Police Act 1997. Examples of people who may be required to produce such certificates are those whose duties involve regular contact with children, those who need to be checked in the interests of national security, people involved in the administration of the law, people in the medical professions, people seeking appointments under the Crown and senior managers in banking and financial services. A certificate issued under section 113 may include convictions that are spent under the Rehabilitation of Offenders Act 1974 and cautions. Certificates issued under sections 114-116 may in addition contain information held on police records that does not relate to convictions or cautions at all, for example acquittals, decisions not to prosecute, continuing police operations, and known associates of the applicant.

20 There is no provision in the Rehabilitation of Offenders Act 1974 for a caution to be treated as spent. Thus a caution may remain in force after a conviction for an equivalent or more serious offence has become spent. The Government has recently issued a consultation paper proposing that the law should be changed so that a caution becomes spent immediately with the result that there should be no rehabilitation period for the purposes of the Act. We support this. It would mean that the recipients of a caution need not refer to it when asked, for example by a prospective employer, whether they have a criminal or police record. The caution could still, however, be cited in court during any criminal proceedings.

21 Home Office circulars giving guidance to the police on cautioning practice have encouraged consistency across police force areas and have had some success, although there are still wide variations between police forces in the proportions of offenders who are cautioned. In 1997, these varied from 22% in Dorset to 72% Cleveland as compared with a range of 16% to 77% in 1992.

Reprimands and warnings

22 Cautions have been abolished for people under 18. Sections 65 and 66 of the Crime and Disorder Act 1998 have introduced a new system of reprimands and warnings. These apply to children under 14 and to young persons aged from 14 up to and including 17. Warnings or reprimands may be given (1) where a constable considers that on the evidence there is a reasonable prospect of conviction if the offender is prosecuted; (2) if the offender admits the offence; (3) if the offender has no previous convictions; and (4) if the constable is satisfied that it would not be in the public interest for the offender to be prosecuted.

23 A warning results in the offender being referred to a youth offending team who must assess him and, unless they consider it inappropriate, arrange for him to participate in a rehabilitation programme. Reprimands may not be given if the offender has been reprimanded or warned before. Warnings on the other hand may be repeated, but only once, provided that more than two years have passed since the previous warning. A warning may also be given in the absence of a previous reprimand if the constable thinks the offence serious enough. The provisions are being introduced in trial areas before being implemented nationally from June 2000.

24 The reprimand is similar to the caution except that repeated reprimands and reprimands of young people with previous convictions are ruled out. The warning is much more than a caution in that it requires the matter to be taken further (reference to a youth offending team and if thought appropriate a rehabilitation programme). Under subsection 66 (5) of the Act, reprimands and warnings may be cited in criminal proceedings in the same circumstances as a conviction may be cited. The position under the Rehabilitation of Offenders Act 1974 is the same as for cautions and the Government has proposed that they should be immediately spent for the purposes of the Rehabilitation of Offenders Act 1974. As with the parallel recommendation on cautions, we support this, particularly given its potential significance for the employment prospects of young people.

25 Many reprimands and warnings will be in response to offences of cannabis possession and will result in reference to youth offending teams. This is significantly different from the position with adults and for many young people it will seem both unnecessary and disproportionate. However, early initiation into drug-taking is one of the indicators of later problem use and we recognise the advantages of a system that enables action to be taken at an early point where very young offenders are concerned.

Informal warnings etc.

26 Several police forces operate less formal warning systems. These usually involve an oral warning, sometimes without an arrest or taking the offender to the police station. An admission of guilt may be required but the offender's consent is not. Informal warnings are therefore sometimes used for offenders who refuse to accept a caution. They cannot be cited in court proceedings as part of the offender's criminal record. Many are not recorded. We were told that it was not uncommon for small quantities of cannabis found after a stop and search to be poured down the drain by the police. Presumably the motive is to save time and paperwork in what the officers concerned regard as trivial cases. As this illustrates, whatever rules are laid down it is likely that informal mechanisms will spring up to deal with cases that seem to the police not to fit those rules.

Warning letters in Scotland

27 In Scotland there is no equivalent to the formal caution nor will the provisions of the Crime and Disorder Act 1998 on reprimands and warnings apply there. Procurator fiscals may send offenders a warning letter in any case where they decide not to prosecute. There need be no admission of guilt. Warning letters may not be cited in court in criminal proceedings nor are they part of an offender's criminal record. There are no figures of the numbers issued.

Fiscal fines

28 Under section 302 of the Criminal Procedure (Scotland) Act 1995, procurator fiscals may also in lieu of prosecution offer the offender a fine (known as a 'fiscal fine') of a fixed amount for offences, including drugs offences since 1995, that are triable before a district court. There is a sliding scale, the penalties being at present £25, £50, £75 or £100. The full amount, or a predetermined instalment, is payable within 28 days. Payment is via the district court fine enforcement machinery, albeit non-payment is pursued through civil process (because no criminal conviction has taken place). Although the offender must accept the offer before any fine is enforced, no formal admission of guilt is required nor can the fiscal fine be cited in criminal proceedings. In 1997, the first year for which figures are available, 499 were accepted in drugs cases, 432 for possession of cannabis, 60 for possession of other drugs and 7 for other offences. We have been told by the Crown Office that between 60 and 70% of fiscal fines are successfully collected.

Compounding

29 Under section 152 of the Customs and Excise Management Act 1979, the Commissioners of Customs and Excise may compound proceedings for any offence under the Act (not just drugs offences). In effect this means that there will be no prosecution provided the offender agrees to pay a monetary penalty. An admission of guilt is not required. Compounding in drugs cases is limited to offences involving herbal cannabis or cannabis resin not exceeding 10 grams in total weight. The maximum amount payable in such cases is £100.

Discretion: our conclusions

30 Drugs offences, even the most serious, cover a wide range, as our analysis in earlier chapters has shown. It is right and also in the interests of harm reduction that the least serious, which are also the ones that most frequently come to notice, should not be treated with the full rigour of the criminal law. We therefore support, on grounds both of principle and pragmatism, the approach taken by the police and customs.

31 We think, however, that discretion should operate as even-handedly as possible and that cautioning in particular needs a proper framework to achieve this. We recognise that cautioning is bound to vary considerably between different areas to reflect local diversity and local priorities. Nevertheless, we think that the differences in cautioning between police forces, although they show an improvement on several years ago, are still too wide to be equitable. Like the Royal Commission on Criminal Justice and the Advisory Council on the Misuse of Drugs [11], we recommend that cautioning should become a statutory sanction, with guidelines laid down in Regulations.

32 In the youth justice system this process is already under way with the replacement of cautions for under-18s with the new statutory system of reprimand and warnings. Even adult cautions are mentioned in statute (as in the Police Act 1997) and are likely to be included in the rehabilitation of offender provisions. What we recommend is therefore the logical conclusion to a process that has already begun.

33 Legislation would promote consistency better than non-statutory guidelines have done so far and would also, as we recommend in Chapter Eight, enable any conditions attached to a caution to be legally enforced. This is not possible at present although many police forces operate caution-plus schemes and they are recommended in the Government's 10-year drugs strategy. Legislation could also ensure that, where the offence is non-arrestable, there is power to request a person to come to the police station for the purpose of receiving a caution, although it should not be an offence to ignore such a request. We see no objection in principle to the suspect being warned that his failure to comply with a request to attend the police station for a caution to be administered might result in proceedings being instituted against him by way of summons for the offence.

Out-of-court fines

34 When a case is taken to court, a fine imposed long after the event loses much of its relevance, especially in a minor drugs case. We see attractions therefore in a procedure whereby an offender, in a case too serious to overlook or to deal with by way of caution or warning, is ordered to pay a fine of a fixed amount within 28 days. The customs and the procurator fiscal service already have this sanction at their disposal. We therefore recommend that, as proposed by the Royal Commission on Criminal Justice [12], the fiscal fine system be introduced in England and Wales for operation by the Crown Prosecution Service.

35 It is important that out-of-court fines should be used for cases that would otherwise be prosecuted and should not replace the caution in the kind of case for which cautions are used now. That might be ensured under the statutory cautioning guidelines that we recommend above. There would also be a question of how the fines should be paid and collected, since the CPS have no machinery for this at present. We see no objection to using the magistrates' courts machinery for this purpose provided it can respond without undue delay. We have not been told of any problems in Scotland in this respect. For the cases where it is appropriate, this innovation should be simpler, cheaper and more proportionate than prosecution.

Criminal records

36 The fiscal fine is not part of an offender's criminal record and we believe that the same should be true of all out-of-court disposals. It should be made clear in legislation that cautions, reprimands, warnings, compounds and out-of-court fines should not be capable of being cited in court as evidence of the character either of the defendant or of a witness. The principle in our view should be that only sentences passed by a court should be taken into account for that purpose. Section 66 (5) of the Crime and Disorder Act would need to be amended accordingly. A similar change is needed to CEMA's provisions on compounding in order to ensure that compounds may not as now be drawn to the attention of the court.

37 Cautions, reprimands and warnings have, however, to remain on police records if appropriate action is to be taken should the offender commit a further offence. At present, records of cautions that relate to recordable offences (roughly speaking those which carry a maximum penalty of imprisonment) are kept on the Police National Computer, while the remainder are kept on local police records. The same will apply to reprimands and warnings under the Crime and Disorder Act 1998. We think it reasonable that records of cautions, reprimands and warnings for drugs possession offences should be kept on the Police National Computer after the reduction in penalties that we propose. Otherwise, removing the maximum penalties of imprisonment for possession of Class B and Class C drugs may affect the ability of police forces to obtain access to records of previous cautions, reprimands and warnings if those took place in another police force area.

38 We make no proposals on the contents of criminal record certificates under Part V of the Police Act 1997. We note, however, that the information to be included in these is supposed to be relevant. We doubt the likely relevance in these contexts of drugs cautions, reprimands or warnings, especially if administered long in the past. We recommend therefore that the Secretary of State includes such information in the certificates only in the most exceptional cases.

Footnotes:
1. The most recent figures, with those for earlier years, are in Home Office Statistical Bulletin 2/99, ‘Operation of Certain Police Powers under PACE. England and Wales 1997/8’, London, Home Office 1999.

2. 'Published in the Annual Report of H.M. Chief Inspector of Constabulary for Scotland, 1998/99.

3. 'Stop and Search: Renewing the tactic. Interim Report’. Metropolitan Police Service, August 1998.

4. C. Willis, ‘The use, effectiveness and impact of Police Stop and Search Powers’, Research and Planning Unit Paper no. 15. London, Home Office 1983.

5. 'Statistics on Race and the Criminal Justice System. A Home Office publication under section 95 of the Criminal Justice Act 1991’, London, Home Office 1998. Chapter Three. The results cover stops and searches for all reasons, not just drugs.

6. See paragraph 3.10 of the report cited in the previous footnote.

7. In the pilot sites for the study cited at footnote 9, this is put at around a quarter.

8. 'Drug Misusers and the Criminal Justice System Part II: Police, Drug Misusers and the Community’, London, HMSO 1994. Paragraph 3.6.

9. M. Fitzgerald, ‘Final Report into stop & search’, Metropolitan Police Service 1999.

10. See paragraph 3.10 in report cited at footnote 8.

11. ‘Drug Misusers and the Criminal Justice System, Part II: Police, Drug Misusers and the Community’, London, HMSO 1994. Paragraph 7.33.

12. Recommendation 113.