Chapter 7: The Law

In the seventies, there was concern about a new type of drug, hallucinogenic amphetamines such as MDA and MDMA, which had not yet reached Britain. With a tradition of being more prohibitive than other countries, the British government tried to forestall trouble by classifying the entire chemical family as Class A drugs; the most restrictive category carrying the highest penalties. This was effected through the Misuse of Drugs Act 1971 (Modification) Order 1977 (SI Number 1243). So, although prohibition dates from 1977, MDMA is a controlled drug under Class A of the Misuse of Drugs Act 1971. Class A includes all compounds structurally derived from an N-alkyl-a-methylphenethylamine by substitution in the ring with an alkylenedioxy substituent, and this includes MDMA and its salts. Parliament may move drugs to other classes after consultation with or on the recommendation of the Advisory Council on the Misuse of Drugs, whose purpose is to keep under review the situation in the United Kingdom.

The British government is a signatory to the International Convention on Psychotropic Substances which requires member nations to make laws to control specified drugs. In spite of objections from the chairman of the Expert Committee, the Convention issued a directive to outlaw MDMA in 1985, but "urged countries to use the provisions of article 7 of the Convention on Psychotropic Substances to facilitate research on this interesting substance."(15) Although the British law against MDMA was made before this, the Act does allow for Class A drugs to be used for research.(87)

Penalties

The maximum penalties that may be passed by any court for drugs offences are set through legislation. Courts have a wide discretion on what penalty to impose provided that they do not exceed the maximum. They must act judiciously and not arbitrarily, and they must take note of the Court of Appeal's guidelines. It may be possible in practice to persuade a court to pass a lighter sentence for an offence involving MDMA than the court would have passed had a quantity of heroin of the same value been involved, but the Court of Appeal has always held that no distinction should be drawn between the various types of Class A drug, it being for Parliament (as advised by the Advisory Council on the Misuse of Drugs) and not the courts to classify drugs.

For offences involving Class A drugs, the maximum penalties are as follows:

1. Life Imprisonment and/or unlimited fine for production, supply, offering to supply and possessing with intent to supply besides confiscation of assets (except for assets that you can prove were not the result of supplying drugs).

2. Fourteen years imprisonment for allowing premises to be used for producing or for unlawful prescribing

3. Seven years for possession.

For any of these offences, the Crown Court has power to impose an unlimited fine in addition to or as well as imprisonment. If a magistrates' court hears the case, the maximum is six months' imprisonment and/or a fine of up to #5,000 for any offence in relation to Class A drugs.

All courts have power to impose sentences such as community service or probation instead.

The Court of Appeal's guidelines (as laid down in the Aramah and Bilinski cases) for offences other than simple possession involving Class A drugs are, briefly:

1. Fourteen years for importation involving a street value of over #1m

2. Ten years for importation where the street value is between #100,000 and #1m

3. Four years for the importation of any appreciable amount

4. There may be a considerable reduction in penalty if there is a confession of guilt coupled with considerable assistance to the police

5. Three or more years imprisonment for supply.

The Magistrates' Association sentencing guidelines suggest a fine of 30 units for possession of a small amount of a Class A drug in contrast to a Guidelines fine of 4 units for the possession of a Class B drug. The value of a unit depends on the offender's means and can be between #4 and #100. 30 units represents a fine of between #120 and #3,000. When someone is found in possession of more than a "small amount" of a drug (which is not defined), the guidelines recommend a community sentence, custody or committal to the Crown Court for sentence.

Precursors (chemicals that may be used to make MDMA) are controlled under section 12 of the Criminal Justice (International Co-operation) Act 1990 which was enacted following the signing of the Vienna Convention Against Illicit Traffic in Narcotic and Psychotropic Substances. This makes it an offence to manufacture or supply a scheduled substance knowing or suspecting it to be used in the unlawful production of a controlled drug. The maximum penalty for this offence is 14 years imprisonment.

How the law is applied

The way you will be treated for a drug offence depends on whether you are considered to be a dealer or carrying drugs for your own use. Dealers are charged with 'supply' or with 'possession with intent to supply' while users are charged with 'possession'. However, you will be considered to be a dealer, and charged with supply, if you pass on drugs to other people. It makes no difference whether you have made a profit, or if other people asked you to obtain the drugs for them. Even a gift to a friend of a single tab of Ecstasy makes you guilty of 'supply'.

The fact that MDMA is a Class A drug means that you will probably be given a higher sentence than you would for a Class B drug such as amphetamine - particularly if you are accused of dealing.

Possession

If you are caught by the police with one or two pills, what happens to you depends very much on chance. The luckiest outcome will be if the police happen to be overloaded or concentrating on arresting a gang, when they may just confiscate the drugs and let you go. Normally, they will arrest you and take you to the police station. About half those arrested for possession are simply cautioned(88) and let go, and this is more likely to happen in a big city, particularly London. You are also more likely to be cautioned if it is your first offence, if you have nothing else of a suspicious nature on you and if you look innocent. You can only be cautioned if you admit the offence (such as that you were in possession of an illegal drug).

In Scotland, cautions are seldom given, but, if found guilty of possession of a small amount and you have no previous convictions, you stand a good chance of 'admonishment' - no penalty on this occasion, but more severe penalties on a further offence.

Fines are applied following the unit system; the court first has to decide on what fine to give in terms of a number of units, then work out the fine according to your 'disposable income'. However, a lot depends on luck, with small country courts giving the highest penalties whereas elsewhere fines as low as #15 are not uncommon. For second offences, the range is about #25 to #130 and increases with further previous offences. People caught with other drugs on them or who have committed other offences are likely to face heavier fines or imprisonment.

Supply

If you are charged with supply, your case will almost certainly be heard at a Crown Court. Imprisonment is the usual penalty on conviction unless your barrister persuades the court that you are not a dealer but simply supplying friends. Sentences vary from 18 months to 5 years in most cases; again, chance plays a big part. Besides the quantity, being found with several different kinds of drug or a lot of cash will go against you, so will evidence that you were seen trying to sell drugs or that someone suffered as a result. Image counts too - if the court sees your trade as part of a ruthless operation rather than that of a naive individual, then you are in trouble.

What to do if you are arrested

Do not resist, make notes of exactly what happens, and ask for a solicitor. If you cannot make notes on paper, then memorise events as best you can until you have the chance to write down what happened.

The reason for making notes is that the police quite often make mistakes in procedure which can be used to your advantage by your solicitor. Resistance may be interpreted as implying guilt, and you may also be charged for another offence.

Assistance from a solicitor is free to suspects held by the police, but you may have to wait in a cell, sometimes for a long time. The advantage is that a local solicitor will know the police and will be able to give you the best advice. This is particularly useful if the police are trying to strike a deal with you.

This is quite common. A typical offer might run: "You confess that the pills are Ecstasy, and I'll ask my supervisor to caution you and that will be the end of it". The pledge will usually be kept, but it has been known for suspects to be double-crossed. Once you have confessed, the policeman may come back and say, "Sorry, but my boss has decided to charge you all the same". The underlying reason for this is that if you confess, the police need not have the drug analysed, which can take up to 3 months.(89)

Searches and warrants

Warrants. If the police arrive with a warrant, read it, ask for a copy and note what they do on your premises. Don't resist, the only way you can help yourself is to cooperate but object to any incorrect procedure later. Search. The police must have 'reasonable cause' to search you, and that does not include the mere fact you were in a place where drugs were on sale. Ask what their reason is for searching you and note what they reply. If the reason is not good enough, then the evidence so obtained should not be used against you.

Searches may include a strip search.An 'intimate search' is only admissible if there is reasonable cause to believe you are supplying Class A drugs - intimate search is not allowed with people who are suspected of possession. Possession suspects who are subjected to an intimate search could charge the police with assault, or with indecent assault if the police search the genitals or anus. 'Intimate search' means looking inside any part of the body, including the mouth and ears.

Blood and urine tests

You cannot be compelled to give samples except in traffic cases. However, the fact you have refused to give a sample may be used as evidence against you.

Police policy trends

There is a trend towards giving cautions instead of prosecuting for the possession of drugs; but this seems to be mainly due to pressure on police testing facilities.(89) What is worrying is that there still seems to be no recognition in Britain that MDMA is far less dangerous than heroin, for instance, whereas in Holland there has been a recommendation to move MDMA to a lower category.(90)

Another worrying trend is that there is a movement within the police to turn attention to users rather than dealers.(91) The idea - expressed by Commander John O'Connor of the Metropolitan Police in a recent report - that the policy of arresting dealers has failed and should be replaced by a drive on arrests of users, would involve thousands of arrests. It also conflicts with recommendations of sociologists in the field.(33) However, the lack of resources may prevent this from becoming policy.

Raves, along with New Age Travellers, have come in for particularly vindictive treatment, with some police forces declaring: "Raves will not happen, legal or otherwise."(171) Concern about falling alcohol consumption and pub attendances by young people may put pressure on the authorities to clamp down on raves.(159)

I was also worried by the lack of interest in harm reduction on the part of the policemen I interviewed. I feel that it would earn the police a great deal more respect if they were seen to show some caring for ravers instead of being seen as persecuting them.