1. Purpose and context
This paper gives an overview of seven case studies in drug law reform approaches from five countries. It aims to support Scottish Government research and policy development regarding drug law and enforcement, and the work of the Drug Deaths Taskforce in identifying successful interventions and locating them within their legal and policing contexts. This is a research paper and represents the findings of the project only. It does not constitute a Scottish Government policy position.
Internationally, there is a growing recognition of the harms that punitive drug policies cause, and a movement towards harm minimisation efforts instead of traditional enforcement and abstinence based responses to drugs in the community. Reforms such as depenalization, decriminalization and even regulated legalization are increasingly common internationally, as are efforts to ensure policing and health priorities are better aligned. As Palmer noted in 2018: "during a period of arguably the most stringent prohibitionist enforcement in history, worldwide drug production has increased, drug consumption has increased, the number of new kinds of drugs has increased, drugs remain readily available to the consumer market, drug prices have decreased and the purity of street drugs has increased. If this is a recipe for success it is difficult to envisage a recipe for failure." (Palmer 2018)
In Scotland, drug law is governed by the UK Misuse of Drugs Act 1971. There is a continuing commitment in Scotland to reduce drug harm, including addressing the rising number of drug related deaths. This has involved police engagement in harm reduction approaches, but the justice system's ability to reorient it's approach to people who use drugs is constrained within the current law.
The relationship between people who use drugs and the health and justice systems is complicated. Research from 2016 showed that 77% of people who died from overdose in Scotland had been in drug treatment, prison or police custody, or discharged from hospital in the six months prior to death (Barnsdale, 2018). Police officers are present at the scene of most overdoses (both fatal and non-fatal) if the emergency services are called, although the true number of non-fatal overdoses in Scotland is not known.
Moreover, commonly quoted drug death figures relate only to overdoses, not including other deaths related to drug use. Many of the wider harms of drug use are not measurable, but the overall extent of health harms and early death are indicated in Scottish Burden of Disease study, which showed that drug use disorder was the eighth most common cause of disease burden in Scotland in 2016. Of this burden, 60% was due to premature mortality and 40% to health loss caused by drug use disorders (NHS Health Scotland, 2016).
Drug treatment has been found to reduce costs. Research from 2010, found that the total social and economic cost of illicit drug use in Scotland is just under £3.56 billion (around £61,000 per problem drug user) per annum. Estimated costs of crime are reduced significantly for individuals in treatment (from £12,713 for individuals with no intervention in place; to £1,536 for those in treatment for more than one year) (Malloch, 2011).
In November 2019, the Scottish Affairs Committee made a number of recommendations including that the Misuse of Drugs Act be amended to allow a range of public health focused responses, and that the UK Government should move away from treating drugs as a Criminal Justice matter (House of Commons Scottish Affairs Committee, 2019). Similarly, The UK Parliament Health and Social Care Committee inquiry into drug use called for radical change to the drug policy and decriminalisation for the possession of small amounts of drugs for personal use (House of Commons Health and Social Care Committee, 2019).
The Scottish Government has now established the Drug Deaths Taskforce, in response to the almost unparalleled rise in annual overdose deaths in recent years. The Taskforce is examining the main causes of drug deaths, and will advise what changes, in practice or in the law, could help save lives. They are also considering the impact of the Misuse of Drugs Act on taking a public health approach to the drug deaths emergency, including proposals to provide harm reduction services, such as medically supervised overdose prevention rooms.
There are some examples of elsewhere in the UK where justice agencies are working with harm reduction services, although again these are all bounded by the Misuse of Drugs Act.
- As far back as 1988, a Police Order in England and Wales made it service policy that people who inject drugs should not be arrested for carrying injecting equipment in a public place (Monaghan & Bewley-Taylor, 2013).
- The Checkpoint scheme in Durham, England diverts certain people, including those with possession or minor dealing charges, into a four month long offender management programme with a navigator and support tailored to the individual, instead of prosecution. It has shown lower reoffending rates for those diverted from prosecution into rehabilitation.
- A pilot of the UK's first drug safety testing service at a music festival, involving a police negotiated 'tolerance zone' around the service in a large fixed tent in the festival's welfare area, took place in 2018 with paramedic and support services (Measham, 2019).
- Various naloxone pilots across the four nations of the UK.
With this context in mind, the remainder of this paper focuses on the international evidence. The next section lays out some frameworks for considering different options – the role harm plays in policy calculus, and the impact law and enforcement has on the risk environment for those who use drugs, and what is known about policies that don't work. The subsequent section provides case studies on reforms made in Australia, Canada, Denmark, The Netherlands and Portugal, and highlights some other international examples of note. The final section summarises key themes from the international literature, relating to criminalisation and harm reduction, supervised consumption rooms, cannabis-specific reforms, reforms specific to minimising the harms of harder drugs, and implementation issues.