14 Law Reform

The Legal Objectives

Most people believe that the use of cannabis is contrary to the best interests of society, and the law is intended to prohibit its use. This objective may still be valid although it has been shown that the most usual arguments against cannabis are based on misconceptions and misinformation. We now know that the effects of taking cannabis are not harmful in normal circumstances. It is also clear that its use does not lead to addictive hard drugs, crime or sexual orgies.

But there are still good reasons for retaining the law against cannabis, even though it may not be necessary to attach such serious sanctions to its use and possession. The main arguments against legalization are:

(1) The use of all new recreational drugs should be discouraged. Even if cannabis is more benign in its effects than alcohol, it would still be a mistake to add another non-therapeutic drug to those already and irreversibly legalized.
(2) Britain is a party to the 1961 Single Convention on Narcotic Drugs and it would be wrong to abandon the prohibition of cannabis after signing this international agreement.
(3) Even though it may have been inappropriate to control cannabis under the Dangerous Drugs Acts, a big reduction in the penalties would appear to condone the smoking of cannabis.
(4) No matter what the experts may say about cannabis, public opinion is not yet ready for any liberalization in the law.

These are strong arguments. But there is some doubt if the law is realizing its objectives or contributing towards a solution to the problem of cannabis. There are nine important reasons for looking at the law again to see if it can be improved. (1) The concept of possession is clumsy. (2) The law misinforms. (3) It is expensive. (4) It is capricious. (5) It gives rise to a sense of injustice. (6) It is ineffective. (7) It is the cause of social alienation. (8) It widens the generation gap. (9) There are better ways of achieving the 'same objectives. These nine criticisms of the law will be considered briefly in this chapter.

The Concept of Possession

It is claimed that a law which is concerned with possession is the best way to catch the sellers of drugs, but such a law leads inevitably to accusations of planting, whether they be true or false. In fact most people are arrested, not because they are found smoking cannabis, but because it is found in their possession. Of the 4,683 convicted of cannabis offences in 1969, 4,094 (87 per cent) were for the offence of possession; only 147 (3 per cent) were found guilty or supplying cannabis.

The concept of possession is particularly cumbersome when someone is said to be in possession of something when it is not actually found on him and where the actual location of the drug is equivocal as far as the person is concerned. It may be found in the room where he is at the time although this may not be his home; it may be found in a car which he is alleged to have driven shortly before the drug was discovered. Although there is evidence given in court of the drug being found in a certain place, that evidence taken in isolation would not be conclusive and it often depends on the remarks which the police claim the accused made at the time. 'This is often disputed in court and very often the decision of the court depends upon the question of what was said or not said by the accused.

If lt is possible to keep some control over alcohol without making it illegal for people to carry it about, at least an attempt might be made to frame a law without making the possession of drugs an offence. It might be possible to make the law similar to the drunk and disorderly' enactments, particularly for the less harmful drugs. Ideally the criterion should be the behaviour of the man whilst under the influence of a drug, not whether he has some grains of a specific drug in his possession. If he is aggressive or a nuisance, then the law should step in to restrain him. But if he is not causing trouble to anyone or to society in general, then it is hard to see why the law should interfere.

The Law Misinforms

There may be controversy over the effects of cannabis, but nearly everyone would agree that it is less harmful than the other major illegal drugs. This was emphasized by the Wootton committee who reported that the legal association of cannabis with heroin and other opiates was 'entirely inappropriate' and that the effects of the use of cannabis were 'intrinsically different' from those of other drugs.

We now know that both the international treaty and the British law which followed it was based on misinformation. It might be said that this does not matter so long as the end result is satisfactory. But this situation presents the education authorities with an impossible task.

Many commentators conclude that the best solution to the drug problem is more and better education. Indeed it is offered as a solution to most of our more intractable problems. But what is the teacher supposed to say about cannabis? If he says that it is not a very harmful drug, he will be accused of condoning cannabis. If he followed the textbooks and produces a list of the horrible results that can follow from the use of cannabis, he will not be believed. As cannabis is the most controversial of all the restricted drugs, he cannot evade the question.

Even the proposed legislation fails to make an adequate distinction between cannabis and the other recreational drugs. This is undesirable for social and medical reasons, and places an additional strain on those who enforce the law.

The Cost of this Law

Over two thirds of cannabis offenders are otherwise law-abiding citizens. Thus we are 'criminalizing' over 2,000 people each year and this involves a very high social cost. There is the material cost of enforcing the law and the psychological cost of turning a large number of young people into criminals.

All laws are expensive to administer, but the cost is usually thought to be outweighed by the benefits. But there must be some doubt whether the cost of detecting and arresting over 3,000 cannabis offenders is really worth while. The work of the courts is already overtaxed, but all of these cases must come before the court at least twice, and some of them three, four or more times.

The increase in cannabis offences is very recent; ten years ago there were less than 250. The average policeman knows very little about this new crime and in several areas chief constables have found it necessary to form special drug squads with policemen working full time on the problem. There are probably more people chasing, arresting and treating drug takers than there are heroin addicts in this country. Some people wonder whether this expenditure on judicial and police resources could be better applied elsewhere.

There are other social costs which are less easy to measure. If a man is arrested for possessing cannabis, he will probably lose his job and he will find it difficult to get another one. This experience will decrease his respect for the law, especially if he feels that his crime has not hurt anyone. If he is sent to prison or borstal, he will come into contact with experienced criminals and upon release he may find it easier to associate with these people than go back to his old friends, some of whom will ostracize him.

The existence of these high costs does not mean, in itself, that it is a bad law. But it is a factor to be taken into consideration when judging the efficiency of a law, especially as this public expenditure is likely to increase each year as more and more people use cannabis. Therefore it is necessary to ask if these social and psychological costs are a worth-while investment.

The Law is Capricious

There is also a wide variation in the sentences awarded for similar cannabis offences. Working-class boys appear to get more severe penalties. Defending lawyers still have to warn their clients that the sentence they get may depend upon their clothes or the length of their hair.

For every pot smoker known to the police there are hundreds that are undetected. Whether a cannabis user becomes involved with the law depends in part only upon his actions; it may also depend upon some influential segment of the community that becomes concerned about a particular state of affairs and brings pressure to bear on the police to take action. It will also depend upon the attitude of the chief constable in the particular area in which the pot smoker lives; some act as if they accept the findings in the Wootton report, others exhibit a crusading zeal to stamp out all signs of cannabis.

This gives the police wide discretion and allows them to arrest some people for cannabis offences because they feel they should be dealt with for entirely different reasons. This law can be used to curb political dissent or to suppress someone whose defiance of authority is embarrassing but not illegal. The police drive against several well-known pop singers had the appearance of a vendetta against a particular life style which was thought to be a bad example to the young.

There has been more than one case in which a person's home has been searched and nothing found; when a complaint about police behaviour was received, the place was promptly raided again and this time an illegal drug was found. In several areas the coloured residents are convinced that the police are more likely to stop and search them than the white people who live in the district.

The Law Creates a Genuine Sense of Injustice

It is always necessary to strike a balance between the civil liberties of the subject and the necessity to enforce the law. The more serious the crime, the more freedom should be given to the police. But when it is a victimless crime and when the opportunities of police malpractice are considerable, then the rights of the citizen are paramount and safeguards are needed.

The law on drugs, and on cannabis in particular, is a constant source for allegations of planting, entrapment, and the use of informers or decoys; there is also the suspicion that not all confiscated drugs are destroyed. No doubt the dangers of corruption in this area are fully realized by police authorities and precautions taken, but there are still more allegations of bribery than one would expect for a crime which does not increase the offender's wealth. The fact that abuses are hard to prove means that they are more likely to flourish.

Two famous cases in recent years serve as examples. In the summer of 1967 Mick Jagger was charged with possessing four tablets containing drugs which he had bought quite legally in Italy but which were illegal in Britain without prescription. He had been granted bail at committal proceedings, but was kept in custody at the end of the first day's trial. On the second morning of the trial, while still unconvicted, he was brought from prison in handcuffs. It was agreed during the course of the trial that the police had at all times received full cooperation from Jagger. Although the charges against the two other defendants were quite different, none of the three accused were sentenced until the evidence against all three had been completed. On the third day Jagger was kept in the cells all day awaiting sentence. There was no justification for any of these procedures and it appears that the object was to vilify this famous pop star in the eyes of the younger generation. The ' exemplary ' sentence given for this unimportant conviction on a technicality caused an outcry in the press and on appeal Jagger was given a conditional discharge. Two years later Jagger was arrested for possessing cannabis. On this occasion he alleged that the drug was planted and a policeman suggested bribery. He was convicted and fined, and the police rejected his allegations.

The second case concerns Lady Diana Cooper whose flat was raided in 1968. The police had a search warrant and no complaint was made about their behaviour inside the house. But because this was the house of a well-known personality, there was a special debate in the House of Commons (7 March 1968) about this incident which was, in fact, similar to hundreds of other raids carried out by the police over the years. Later Lady Diana received a personal visit and an apology from the Deputy Commissioner of the Metropolitan Police, and the Home Secretary circulated a special note to chief officers of police asking them to be more careful before applying for search warrants. The Lord Chancellor issued a similar note to those responsible for the training of magistrates.

Both these cases received wide publicity, but there are many cases of police malpractice which do not get reported in the press. One example of this was a case which came to the notice of the Law Society. The short facts of the case are as follows: It had come to the knowledge of the police that a man who had been convicted and sent to prison for possessing drugs was due to be released from prison on a particular day. Apparently on no greater evidence than this, the police sought and obtained a search warrant for premises to which it was known that he was intending to return. They duly entered the premises, without difficulty, having sought admission at the door. Within the premises were a number of persons of good character, each of whom was a graduate of a university. The police then directed the women present to go to one room and the men to another; required the men to stand against the wall with their hands upon their heads, and the women to be searched by a woman police officer. It was the contention of the occupants of the property that they did not object to the police enforcing a warrant which, on the face of it, appeared to be have been regularly issued, but they greatly resented the tone and manner in which they were accosted and the indignity to which they were subjected, as was alleged, by force. A young woman was found in possession of dexedrine tablets which she had taken for slimming purposes and with which she was subsequently charged. Another had pills prescribed for epilepsy, which were not made the subject of a charge. No other dangerous drugs were found whatsoever but, arising out of their protests at the manner of search used by the officers, charges were brought under section 14 (3) of the Dangerous Drugs Act of wilfully obstructing police officers in the exercise of their powers. Despite a strong contest, all the defendants were in due course convicted although only nominal penalties were imposed.

The Law is Ineffective

All the arguments in favour of the law assume that it works, but in fact the drugs legislation, as it applies to cannabis, is singularly ineffective. None of the arrangements for treatment in special centres under the 1967 Act applies to cannabis users, because most doctors do not attempt to treat pot smokers. Less than one in ten of those convicted under the 1965 Act are reconvicted for a subsequent drug offence. 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.

It is obviously impossible to say what proportion of cannabis users are arrested, but a little speculative arithmetic will make clear that hundreds of joints are smoked every day and the chances of getting caught are remote.

The Wootton committee received estimates of the total number of cannabis users which ranged between 30,000 and 300,000.

If one takes a midway figure, we may assume that there are 165,000 pot smokers in the country — probably an underestimate.

Let us assume that each one of these takes cannabis fifty times in a year; therefore there are at least 8,250,000 occasions when the law is being broken.

Leaving aside the significant fact that the police usually arrest people when in possession of the drug, but not when they are smoking it, we know that about 4,000 people were convicted of cannabis offences.

Therefore the chances of being convicted for a cannabis offence are far greater than 2,000 to one.

This speculative arithmetic is probably wide of the mark, but it does show that the detection rate must be very low. Now it is possible that it will get better if we decide to devote even more police time and expenditure to the task. When President Nixon' was elected, one of his first acts was to strengthen the Federal Bureau of Drug Abuse so that a special campaign could be waged against the smuggling of cannabis across the Mexican border. Initially the price of cannabis increased in New York and other large American cities, but the drive against the smugglers was not very successful. It is a long border and a very large number of people are bringing across relatively small amounts. In addition there were protests from ordinary travellers who were subjected to delays and inconvenience at the border.

Even if the Bureau of Drug Abuse had succeeded in curtailing the activities of the dealers, it is not certain that the results would be entirely beneficial. If there was a scarcity of cannabis, this would increase the risk that organind crime, and in particular the Mafia, would gain control of what is at present a loosely organized system of supply. If cannabis were driven off the market, the multiple-drug users would turn to the synthetic drugs which are easier to produce, are less bulky, and can be manufactured within the United States. The amphetamines and barbiturates are quasi-legal and it would be much harder for the Government to build up pressure against these pills because millions of Americans take them on prescription. It is possible that the same situation could occur in this country. If the law against cannabis became more effective, the result might be to increase the consumption of more addictive and dangerous drugs.

In fact the opposite is more likely to happen and the current trend indicates the use of cannabis will continue to spread even though the law is being strictly enforced. Meanwhile the present users of cannabis are growing older, marrying and having children, and are being appointed to important positions in the community. One of the many reasons for the failure of prohibition in the United States was that it became more and more difficult to get jurors to return convictions, because they themselves had often violated the law. Before very long there are going to be pot smokers on the juries who are asked to convict a cannabis offender.

Lenny Bruce once said that cannabis will become legal in a few years time because law students are now smoking it. Eventually there will be lawyers, magistrates and policemen who smoke pot when they are off duty. In the near future there will be parents who take cannabis. Today a teenager can tell his parents he his been invited to a bottle party, but he would not mention an invitation to a pot party. But the parents who smoked cannabis when they were young are likely to be more tolerant and will not be shocked if they find their children using cannabis.

The Law Encourages Social Alienation

The law reflects public attitudes, and at the same time these attitudes are harder to change because of the present state of the law. So the social hostility to cannabis is under-pinned by the law. A tolerant attitude towards users of cannabis is to be 'soft' with criminals; to excuse the smoking of pot is to condone the breaking of the law. Doctors and social workers who are trying to help cannabis smokers who are in some kind of distress have to be ever mindful of their own predicament when trying to assist these law breakers.

The present law does much to ensure that adolescents and young people who take cannabis will be less likely to stop than would otherwise be the case. Because it is illegal they have to get their supplies from someone who, even if he is not a professional pedlar,' is likely to be more involved in the drug scene.

If the young pot smoker is arrested, he will be labelled as a drug user and will probably begin to think of himself in this way. All his future behaviour will be influenced by this event. In many , cases his family and friends will avoid him and his chances of successful social adjustment will be enormously prejudiced. The effect of appearing in court on a cannabis charge is often calamitous, even if the sentence is not severe. He has to get time off to appear in court and his employer is apt to think there is no smoke without fire. A conditional discharge has led to a man losing his job and future prospects.

The belief in escalation fosters the view that once a person has been arrested fort taking cannabis, all hope is lost. Magistrates and judges encourage this view with remarks about cannabis leading on to hard drugs and the young drug offender may come to believe that he will inevitably end up as a heroin addict. If he is imprisoned he will meet, probably for the first time, multiple-drug addiccts as well as many other kinds of criminals.

In chapter 13 it was shown that the law tends to push cannabis into introverted minority groups with strong intra-group loyalties, away from community integration and towards social alienation.

The Law Widens the Generation Gap

One of the most unfortunate things about the controversy over cannabis is that the two sides are so sharply divided by age. Very few people over forty have a good word to say about it, while hundreds of young people think the attitudes of the older generations are hypocritical.

Nearly all cannabis offenders are from the younger sections of the community, whilst of necessity the administration of the law is the responsibility of the older sections. The problem is intensified because the young have received a different and more extensive education, with the result that they are less willing, than heretofore, to agree that laws and policy laid down by the older generations are necessarily wise. They do not believe that the authorities are well informed about cannabis, and the more stringent the laws for its suppression, the more militant they become in defying them.

Furthermore the police find this new spirit among the young makes their job much harder. The police regard the pot-smoking hippie as the epitome of protest and political dissent and so they set about the task of searching and arresting young cannabis users with more than their usual amount of enthusiasm.

In fact the swaggering self-confidence of the young, defiantly asserting their independence, is an outer shell which is tough, but it can collapse at the sight of five policemen and an alsatian dog. Young first offenders are confused and afraid when they run against the law and this is especially true of drug users when they have come down in the cold light of morning. The police station where the messages never get though; the policemen who obstruct the search for sureties even after the magistrate has granted bail: the untrue promises of we'll see you get off lightly if you cooperate': these unofficial actions can be countered by the experienced criminal, but they confuse and depress the young drug offender to the extent that he does not get the justice he deserves.

Some university staff have noted that the antagonism towards the police is not confined to the cannabis takers alone. Students who have no wish to take any drug hear about how their friends have been treated and resent it. Indeed they may be in danger of being arrested and charged if they are in the same room as someone who has a piece of cannabis in his pocket (Hindmarch, 1970). Young people cannot be expected to ostracize their friends who occasionally smoke cannabis, even if they do not wish to use it themselves.

Sometimes the ardent desire of adults to protect the young merely looks like hypocrisy to them. A girl of sixteen who is sleeping with a steady partner can be taken 'into care', but the law does not interfere with an adult woman who is promiscuous. Similarly, a homosexual of nineteen can be arrested and imprisoned even if all his sexual activities are with consenting partners in private. It is as though the young are expected to be better behaved than adults.

The law on drugs can be used by the police to control the activities and movements of juveniles. Teenage clubs are raided and young people are taken to the police station to await collection by their parents. Relations between the police and young people have never been worse. The cannabis laws are viewed by the young as just another weapon in the generation war.

The Law does not Provide a Solution

Drug taking is mainly a social problem, less a medical problem. Legislation can play only a small part in the search for a solution. It can act as a discovery agency, bringing to the notice of social workers and doctors those who need help. Otherwise its role is bound to be very limited.

If a politician thinks that making the law more severe will stamp out the use of cannabis, he is going to be disappointed, but not before many people have been hurt. A man sent to prison for possessing cannabis will not receive any treatment while he is there ) that will make it any less likely that he will smoke pot on his release. Even a man put on probation will not get any medical treatment; indeed most doctors confess that they do not know what treatment to offer cannabis takers.

The law may act as a deterrent. It certainly makes pot smokers very secretive, but it would be optimistic to suppose that they give up taking cannabis as a result of an arrest.

The law is not an effective means of regulating private behaviour if there is too large a gulf between precept and practice. Many people in the United States were worried by the problem of alcohol and the prohibition of all drinks was seen as the answer. After a short period it was found that the experimental cure was worse than the ailment. The prohibition of off-course betting in this country had to be abandoned for similar reasons.

Some people have suggested that the clients of prostitutes, as well as the girls themselves, should be subject to the criminal law. But if the attempt to patronize a prostitute were made a crime, it would cause more social disruption than the harm caused by the evils of prostitution. Likewise it would be to the detriment of the whole community if all homosexuals were thrown into jail because most of them participate in the basic activities of society, in business, commerce, government, and the home.

In an earlier section of this chapter the law is criticized because - it is unworkable. But if in fact it was made to work, the whole community would be disrupted. Hundreds of students would have to give up their studies, hundreds of young people would lose their jobs and hundreds more become social outcasts. This does not happen because most people who use cannabis go undetected. But a law which is tolerated only because it is unworkable, and which would cause chaos of it could be made effective, is plainly not a good law.

Many people now accept that the law should not try to regulate private behaviour (Hart, 1963). At one time blasphemy was punished, but now the police only make arrests when it is likely to cause a breach of the peace; attempted suicide is no longer a crime, although it is still forbidden by most religions; private homosexual acts are now not criminal although church dignitaries persist in calling them sinful. The laws on abortion, divorce and Sunday entertainment have recently been reformed.

There is a general feeling that nowadays there is Too 'much , legislation; unless the consequences are obviously and demonstrably ',harmful, it is wiser to permit than to repress. The permissive society has its drawbacks, but the repressive society has many more.