Responding to the Scottish Lord Advocate's statement on drugs

On Thursday, 23 September, the Scottish Lord Advocate (chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters) announced that recorded police warnings may now be used to divert people in possession of class A substances from the criminal system.

It was great to see Dorothy Bain QC using her first interaction with the Scottish Parliament to support the extension of police warnings and possible diversion for those caught in possession of a controlled drug. It is a welcome move away from the need to criminalise possession, and one towards the practical, harm-reduction solutions needed to reverse this public health crisis. However, there are concerns about the way this change has been referred to in the media, and a cautiousness on the way Scottish diversion schemes will work in practice.

The sensationalism of the scheme

Socially conservative politicians and certain media outlets have wrongly framed this decision as an unprecedented move in the UK. This is journalistic sensationalism, as recorded police warnings, which is essentially depenalisation, already exist for class B and C substances in Scotland.

Police-led diversion schemes for a number of low-level offences including the possession of all illegal drugs have already been in place in a number of police forces in England and Wales for over half a decade. Notably, the Durham Constabulary introduced its “Checkpoint” diversion scheme in 2015 (although initially this was a post-arrest diversion scheme) and Avon and Somerset Police force adopted the first pre-arrest scheme in 2016, with other schemes being implemented in across England and Wales in the following years. Furthermore, police in England and Wales can issue a community resolution (essentially a police warning) for possession of drugs.

Depenalisation or diversion are neither new, untested nor controversial. These are evidence-based police-led interventions that seeks to understand the causes behind offences, and offer alternatives to prosecution and punishment. Drug possession remains as a criminal justice issue, but does not warrant an automatic punishment.

Criminalising dependency but not use? The devil is in the detail

We are not contesting the value of depenalisation or diversion; it is better than immediate prosecution, and arguably as far as the Lord Advocate can go considering drugs legislation is the reserved to Westminster . However, there are still lingering questions around the efficacy of the approach in improving the lives of people with problematic relationships with drugs.

Firstly, the decision to issue an individual a warning or to prosecute is ultimately down to the police officer’s judgement at the point of issue, guided by the Police Scotland’s Standard Operating Procedure (SOP). Those possessing drugs can still be prosecuted and not warned. In practice, police discretion has often allowed for racial disparities or overrepresentation of people from deprived communities to be sustained in the criminal justice system.

Secondly, the Lord Advocate’s statement provided no detail on how warnings will be used for repeat offenders. The decision to either issue another warning or prosecute is based on the similarity of their previous offence, the gravity of their offence and/or the frequency of interactions with law enforcement. While it is important to avoid bringing new people into the criminal justice system, the police warnings may have no positive impact for those already within the system due to past offences or regular drug use. The guidelines must allow for people to receive repeated warnings or to be repeatedly diverted, otherwise Scotland will simply be criminalising those who are drug dependent, which is contrary to the motivations for expanding the scheme.

We fear that as a result, a system will be developed that awards first-time offenders with a police warning, and repeat offenders (typically those that require the most assistance from health and  social systems) will continue to be criminalised, further fuelling a distinction between good “recreational” individuals and “problematic” individuals. With key details still unclear, and too much discretionary power in the hands of individual officers, we are apprehensive of how fairly this system can be enforced.

Diversion is a good step in the journey of justice and harm reduction

Scottish Parliamentarians Paul Sweeney and Mercedes Villalba both welcomed the legal change, with Villalba recognising that this “is an important move towards recognising that arrest and punishment are an inappropriate way to respond to possession of drugs”. However, both also recognised this was not nearly enough:

Mercedes Villalba: “...the approach has to go further to address the root causes of problematic drug use […] we need to hear details from the Scottish Government of what resources will be made available, how we will increase the number of trained drugs workers and social workers and provide the necessary prevention and treatment services.”

Paul Sweeney: “I volunteered at an unofficial and unlicensed safe drug consumption van operating in Glasgow […] drug consumption facilities would be another huge step towards the public health approach we need. Combined with the measures announced this week, they would save lives and that has to be our end objective.”

We remain cautiously optimistic with these changes in Scotland, but remain unsure that the drug-related public health crisis can truly be impacted if it remains a criminal justice issue. While depenalisation of drugs may perhaps be the beginning of many positive changes, we remain committed to advocating for full de jure decriminalisation as the best option for those that use drugs and the society that surrounds them.