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Criminal Justice and Police Act 2001 (Amendment) Order 2009

Volume 707: debated on Monday 26 January 2009

Motion to Approve

Moved By

That the draft order laid before the House on 20 January be approved.

Relevant Document: 3rd Report from the Joint Committee on Statutory Instruments.

My Lords, the order seeks to add the offence of cannabis possession to the penalty notice for disorder scheme—the PND.

The offence of cannabis possession was included in a previous draft order laid before Parliament on 15 December. In view of concerns raised over some of the offences listed in that order, we decided to withdraw it and to consult more widely on the new offences to be added to the scheme. However, as my right honourable friend the Home Secretary said, the penalty notice for disorder scheme will play an important part in the regime to deal with possession of cannabis and therefore I am bringing this new order before your Lordships’ House.

As part of the consultation with stakeholders on the introduction of PNDs for cannabis possession, the Association of Chief Police Officers and the Home Office have considered how the possession of cannabis should be policed as a class B drug. This led the Home Secretary to invite ACPO to bring forward formal proposals for an escalation approach. The approach proposed and jointly developed with ACPO consists of three steps: warning, PND and arrest. Penalty notice disposal provides the police with a quick and effective way of punishing minor nuisance offending by minimising the paperwork and the processing required from the police. Issuing a PND takes approximately 30 minutes compared with two and a half hours to prepare an evidential case file. The cases do not have to be taken to court, which also relieves the burdens on the court.

Cannabis is used in public far more commonly than other illicit drugs and is perceived to be linked with anti-social behaviour and public disorder, which penalty notices are specifically designed to address. Although cannabis warnings will continue to be available to the police, PNDs impose a financial penalty which cannabis warnings do not. They are therefore sanctions of a different order. The penalty amount for cannabis possession will be fixed at £80. We believe that the introduction of a PND will offer a proportionate response to a second possession offence as part of a strengthened escalation process of enforcement on the reclassification of cannabis to a class B drug, effective from today, 26 January. At the moment, in practice, a cannabis warning can be followed by another cannabis warning which can be followed by another cannabis warning.

Subject to parliamentary approval of penalty notices for disorder for cannabis possession, the Association of Chief Police Officers will publish revised national guidance for the policing of cannabis possession as a class B drug in England and Wales. That will make it clear that while arrest is always the first option, an adult offender is likely to receive a cannabis warning for a first possession offence and a penalty notice for disorder for a second offence. A third offence will result in arrest and consideration of further action, including prosecution. Ultimately, decisions on the most appropriate disposal of an offender are made by the police and the CPS using their professional judgment and experience. However, I emphasise that that escalation will apply to possession-only offences.

Officers will use their discretion to determine whether the amount of cannabis possessed appears reasonable for personal possession only or becomes an offence of possession with intent to supply. In the case of the latter, neither a penalty notice for disorder nor a cannabis warning is available. I remind the House that dealing in any amount of cannabis is a very serious offence and can result in up to 14 years’ imprisonment.

The guidance sets out a number of aggravating factors which, at present, a police officer should take into account to escalate the response accordingly. Among those aggravating factors are smoking cannabis in a public place or view, a locally identified policing problem or community concern, particularly protecting young people such as where an adult is found in possession in the vicinity of young people, and repeat or persistent offenders for any criminal offence of anti-social behaviour indicating a disregard for the law.

The proposed introduction of PNDs is specific to cannabis and the dedicated escalation process. Most forms of cannabis are, as a matter of fact, generally recognisable by experienced police officers without the need for forensic analysis. Other controlled drugs, often in powder or tablet form, cannot necessarily be so readily identified without forensic analysis, which precludes a police officer from dealing with the matter on the street, as a PND otherwise enables. As an intermediary step in escalation, PNDs have a greater potential to alter behaviour, providing the offender with a final reminder in the form of a financial penalty to change his or her ways before more serious action is taken. We believe that the disposal will prove valuable to the police in cracking down on those caught in possession of cannabis for personal use and that it will remain a useful addition to their armoury of powers. I beg to move.

My Lords, this is a funny way to legislate. The Government first introduced an order some time last December in which some 21 different offences were to be subject to PNDs—penalty notices for disorder. No doubt they consulted on that before they issued it, but they then listened to further representations, some coming as late as last week and, last week, withdrew the whole order and replaced it with this order which has only one offence, the possession of cannabis. They were then very anxious to acquire it as quickly as possible, particularly as they want to bring it into effect on the same day as cannabis moves from class C to class B, as announced by the Home Secretary. At the same time as the Home Office or the Ministry of Justice—the Minister will be able to tell me which—tries to send out a message that the possession and use of cannabis are to be taken much more seriously, the punishments available for possession of cannabis are to be relaxed, but only for cannabis and not for any other class B drugs. Perhaps the noble Lord can tell us whether PNDs will be available for possession of class C drugs. Can he confirm that cannabis will be the only class B drug subject to PNDs?

The noble Lord then told us that that is part of a graduated response to dealing with possession of drugs; it starts with a warning, moves on to a penalty notice for disorder and then, presumably in due course, moves on to some other more serious punishment. We have also been informed that no record will be kept of the PNDs issued and there will be no criminal offence committed by the possessor. How on earth will the police police this? If they do not keep any records of the original warning and of the possession, how will they know whether this is the first, second, or third time?

A Home Office Minister—Mr Alan Campbell, I think—told MPs examining the proposals in Committee that warnings would be recorded on a new police computer system called pentip—I would like confirmation from the noble Lord on that—but that it would not be in place until 2010. We understand that that contradicts a previous parliamentary answer from the Home Office stating that the system would not be fully operational until about 2012 and that it was already about £10 million over budget, but that is what we have come to expect from the Home Office and the Ministry of Justice. I would like confirmation of those points from the Minister. If that is so, the records allowing the police to know whether a PND or a warning has been issued will not be available to them until 2010 or 2012. Why the desperate haste by the Government to bring this in now, particularly as they will be sending out very mixed messages to the populace at large? On the one hand, they say that they are taking the possession of cannabis more seriously and uprating it from class C to class B, but on the other hand they are relaxing the penalties available for possession of that drug.

My Lords, I have a confession to make to your Lordships: the swinging 60s passed me by. Consequently, I neither puffed nor inhaled cannabis at any stage and I have no axe to grind today. My only connection with this drug was in prosecuting some people for growing it on an industrial scale in the north-west of England. Unfortunately for them, when they grew it on an industrial scale, it had one-tenth of the potency of normal cannabis. There was a great deal of puffing going on in Warrington at the time.

I am baffled by the Government’s policy on cannabis. In 2004, the Home Affairs Select Committee said that it should be reclassified from class B to class C on the advice of an independent panel of experts, the Advisory Council on the Misuse of Drugs. Mr David Blunkett, the then Home Secretary, followed that advice and said that it would free the police to concentrate on more serious drugs and that the use of cannabis would be followed normally by a warning. Then, all of a sudden, we have a reversal of that policy, against the advice of the Advisory Council on the Misuse of Drugs, which said that it was not convinced that moving it to class B, with the possibility of five years’ imprisonment for its possession, would have any beneficial effect.

The council does not believe that criminalising people will assist. It feels that alcohol is more harmful to the population—and certainly to the individual—than cannabis. Mr Danny Kushlick, of the drugs policy think tank Transform, said that nobody would be put off smoking cannabis by the decision to reclassify it. He makes the valid point that if cannabis can be dangerous to a few people but 2 million regularly smoke it, we should have a regulated and supervised market for it, rather than putting its distribution in the hands of criminals. Indeed, as the noble Lord, Lord Bach, well knows, it is the proliferation of drugs, including cannabis and more serious drugs, which lies behind so much of the crime that we suffer in this country.

Putting cannabis back up to class B, which carries with it as a summary offence a penalty of £2,500 or three months’ imprisonment—or, on indictment, five years’ imprisonment—is a considerable escalation. One can understand that if the Home Secretary is worried about it, she might decide to make that move. However, she immediately follows this by linking it to the PND—or penalty notice for disorderly behaviour—provisions of the Criminal Justice and Police Act 2001, which I have looked at.

The offences which lead to on-the-spot penalties include being drunk on the highway, a class 1 magistrate’s court offence; throwing fireworks in a thoroughfare, which carries a fine up to level 5 in the magistrate’s court; trespassing on a railway, which carries a fine up to level 3 in the magistrate’s court; throwing stones at trains, a level 3 offence; and disorderly behaviour when drunk, a level 1 offence. Even the most recent extension, Section 5 of the Public Order Act 1986, on behaviour likely to cause harassment, alarm or distress, is still a summary offence, with a fine up to level 3. All the offences for which penalty notices have been issued in the past have been summary offences, and not even the most serious summary offences.

To that regime, suddenly, the Government have decided to add an offence punishable by up to five years’ imprisonment. Not only that, but one of the results of the proposed alteration is that no conviction will be recorded, as the noble Lord, Lord Henley, said. Payment of the penalty fine will end the whole matter. There will be no possibility for any intervention to make sure that the person concerned does not go on to take more serious drugs or, indeed, to see if it is necessary to cure them of the habit, if that is seen to be in the public good. The messages to the public are completely contradictory and confusing.

I am not going to oppose this order tonight; let us see how it works out. However, the Government should rethink their drugs policy altogether. Either you clamp down and make the possession of cannabis punishable by up to five years’ imprisonment, or you decide to get rid of this criminal subculture, which causes so many of the problems that we face in our streets and cities, and say that the whole thing should be decriminalised. As I said at the beginning, I have no particular interest one way or the other, but it seems that the effects of continuing to criminalise drugs, particularly of this low order, are far worse for our population than for them to be decriminalised. I hope I have made that point; no doubt I will make it again at a later date.

My Lords, I am grateful to both noble Lords who have spoken. The noble Lord, Lord Henley, asked about the process and why we withdrew the earlier order. We listened to concerns about certain aspects of extending the penalty notice for disorder scheme and decided to consult more widely on the new offences. That consultation will begin shortly. The proposal that cannabis possession should be added to the penalty notice for disorder scheme was made public last October. We believe that there has been plenty of opportunity for people to comment on it. The Government believe that penalty notices should, subject to parliamentary approval, be available to police officers from today, on reclassification of the drug to class B. We have no plans to introduce PNDs for the offence of possessing other drugs, including other class B and class C drugs, largely for the reasons that I stated in opening the debate on this order. Cannabis is well known; most experienced police officers know cannabis when they see it or smell it. We believe that this is appropriate for cannabis possession. It is much the most widely used of these drugs.

Are PNDs recorded? Yes, indeed they are. PNDs will be recorded for possession on the police national computer, so it will become well known straight away that someone has a PND against their name for cannabis possession. As to warnings, the position is that there is, as the noble Lord, Lord Henley said, no recording at present. However, if one thinks about it, it is clear that many cannabis offences of this kind are committed in a particular locality. The same person will smoke cannabis on more than one occasion in a particular area. There will be police intelligence. It may well be the same police officer involved. Those who have cannabis warnings will take a severe risk if they continue smoking cannabis in the same area as they had previously. The noble Lord is right to point out that when PentiP comes into force from 2010, cannabis warnings will be recorded.

I turn to other matters that have been mentioned. The noble Lord, Lord Thomas of Gresford, started to debate again the issue of reclassification. Obviously, I listened carefully to the points that he made. One of the reasons for reclassification at this stage, and there are others, is that evidence shows that the cannabis being taken is a good deal stronger than it was a few years ago. The rough figure given is that 80 per cent of the cannabis taken now is of the skunk variety, which, as I think everyone knows, is much more dangerous than other types of cannabis.

The noble Lord referred to a number of offences which he claimed were very minor compared with the possession of cannabis. Destroying or damaging property under the value of £500 is also an offence for which a PND can be issued; likewise theft of items with a retail value of under £200. So other offences of a fairly serious nature can be dealt with by PNDs already.

Legalising drugs is not an appropriate response. Drugs are controlled for good reason: they are harmful to health. Their control is a necessary and legitimate means of protecting individuals and the public from the harm caused by their misuse. Prohibition has an important role in restricting availability and keeping the level of drug use under control.

The new escalation scheme that I have referred to will become well known to those who attempt to take cannabis—first the warning, then the PND, and then their potential arrest. I repeat that these measures will remain at the discretion of the police officer involved. He may decide to arrest on the first occasion if there are aggravating circumstances. I emphasise that this PND is available only to those over 18, as is a cannabis warning; anyone who is 17 or under cannot receive either a cannabis warning or a PND. They will be taken to the police station to see whether they should be referred on to the YOTs. What we are talking about today applies only to those over the age of 18. I am grateful to both noble Lords for their questions and comments.

Motion agreed.

Sitting suspended.