UK - Policing guidance following reclassification of Cannabis (UK)

[Lunar Loops]

This is from the Association of Chief Police officers website and offers advice to police officers on dealing with cannabis offences. SWIS is not really sure whether this offers up anything new as it is still basically saying that how the matter is dealt with is down to the discretion of the officer involved. This has always been so, even before the re-classification. UK tokers should therefore note that they can still be arrested and charged even if found in posession of a small amount of cannabis (luck of the draw....if you'll excuse the pun...based on locality and how the officer is feeling at the time). Anyway, here are the guidelines in full for those that may be interested:

Press Release

Reference: 18/07 Date: January 16, 2007
Policing guidance following reclassification of Cannabis

An ACPO spokesperson said:
“Following the Government's reclassification of Cannabis from Class B to Class C in January 2004, ACPO worked with forces and other interested groups to produce guidelines for how the police should deal with simple cannabis possession which involved warning offenders in most instances rather than arresting.
“Since then, The Serious and Organised Crime and Police Act 2005 made changes to police powers of arrest and as a result ACPO have now revised the original guidelines, following consultation with forces and other interested groups.
“In putting together the guidance ACPO recognised that different communities had different crime problems and therefore left provision for local police commanders to arrest rather than issue a cannabis warning, if this was a proportionate response within their community. The guidance also recognises the particular vulnerability of young people and has indicated that they should continue to be arrested rather than warned on the street.”


1 INTRODUCTION

1.1 Possession of Cannabis is illegal. Offenders can be arrested for possession of Cannabis if necessary. Cannabis is classified as a Class C Drug under The Misuse of Drugs Act 1971.

1.2 Dealing in any amount of Cannabis is a serious offence that can result in up to 14 years imprisonment. A Cannabis Warning should not be considered where there is evidence of dealing or possession with intent to supply the cannabis to others.

1.3 On 19 January 2006, The Home Secretary, having taken advice from The Advisory Counsel on The Misuse of Drugs (ACMD), decided to keep Cannabis as a Class C Drug. The purpose of these guidelines is to issue renewed guidance to officers dealing with offences of possession of cannabis in light of this decision and significant legislative change since the guidelines were first introduced in January 2003.

1.4 These updated guidelines have been developed, following extensive consultation, to recommend to Chief Constables a consistent national approach to the policing of possession of Cannabis as a Class C Drug.


2 TERMINOLOGY

2.1 Since the 2004 guidelines introduced the concept of ‘Street Warnings’ for cannabis possession, there has been some confusion over the terminology and relationships with other forms of warning, such as the formal warning or formal cautioning procedure or final warnings for young people. During extensive consultation it was felt that the previous terminology was ambiguous and some officers interpreted it as being a warning that could only be given on the street, whereas, in reality, it can be given anywhere. In view of this and to avoid further misunderstanding ACPO have decided to refer to the process in future as a ‘Cannabis Warning’.


3 CANNABIS WARNINGS

3.1 The term ‘Cannabis Warning’ should replace the term ‘Street Warning’. It is expected that individual police forces will review current Standard Operating Procedures in light of these amended guidelines.

3.2 As a general guide, when police find a person in possession of a small amount of cannabis, they should ;

• investigate the circumstances surrounding the alleged possession, including any lawful excuse.

• eliminate any suspicion of a more serious offence, such as possession with intent to supply. (The amount of cannabis in possession of the offender is irrelevant if there is other evidence of intent to supply).

• seize cannabis and secure evidence according to local procedure. There must be compliance with PACE and its Codes. If the officer is not experienced in handling cannabis or has any doubt as to the nature of the substance they should call for the assistance of an officer who has the relevant experience

• complete contemporaneous notes of the incident, that are PACE compliant and cover the points to prove for the offence, in line with local procedures

• complete local recording systems, such as stop/search forms, property seized logs and criminal intelligence reports

• ensure a record is made of the crime within local crime recording procedures. Under Home Office counting rules this will be treated as a sanctioned detection, providing the correct procedures have been followed.

3.3 If an offender admits possession, and there is no evidence of intent to supply to others, the officer should consider whether dealing with the offender by way of a Cannabis Warning would be a proportionate and appropriate method of disposal. If the officer decides to proceed with a cannabis warning the offender should be warned that:

• A record of the investigation will be made at the police station

• The offence of possession will be recorded against them, for statistical purposes, as a detected crime

• However, this procedure does not constitute a criminal record against them

4 ARREST

4.1 From 1 January 2006, Section 24 of the Police and Criminal Evidence Act 1984 (PACE) as amended by section 110 of the Serious and Organised Crime and Police Act 2005 (SOCAP), provides a constable with the power of arrest for an offence. The exercise of this power requires the officer to apply the necessity criteria set out in PACE Code G and show that arrest is necessary. The application of the ‘trigger powers’ under PACE following arrest (e.g. entry and search of premises after arrest) apply only to indictable offences. Possession of Cannabis under Section 5(2) of the Misuse of Drugs Act 1971 is an indictable offence.

4.2 A police officer finding a person aged 18 or over in possession of a substance that they can identify as cannabis and who is satisfied that the drug is intended for that person's own use should not normally need to arrest the person.


4.3 Young People aged 10 to 17 years of age cannot be given a Cannabis Warning. They must be dealt with under the provisions of Section 65 of the Crime and Disorder Act 1998. It is accepted that, in some cases, a police officer may find it necessary to arrest that person in order to obtain the admission/evidence required. However, consideration should be given to less intrusive means if possible such as taking the young person home, verifying their name and address and referring the case for a disposal decision. The necessity test is explained below and the officer must justify any decision to arrest based on individual circumstances.

4.4 When might an arrest be necessary?

4.4.1 PACE Code of Practice G provides statutory guidance on arrest powers. An arrest must never be used simply because it can be used. The use of the power must be shown to be necessary. Officers exercising the power should consider whether the intended objectives can be met by other, less intrusive means, such as summons, or by using street bail following arrest rather than taking the suspect to the police station. The reasons for any arrest must be recorded in accordance with PACE Code G, section 4. The following examples demonstrate cases where the necessity criteria may prompt an officer to consider arresting the suspect. The circumstances that may satisfy those criteria, however, remain a matter for the operational discretion of individual officers. Some examples are given below of what those circumstances might be.

4.4.2 An arrest would not be necessary if the officer simply wished to seize cannabis and has no intention to prosecute the person. In these cases stop and search powers under s23 of the Misuse of Drugs Act 1971 enable the police to stop and search a person suspected of possessing controlled drugs. The officer can stop and search the suspect without making an arrest, and seize any controlled drugs that are found during the search. PACE Code of Practice A and the Stop and Search manual provide statutory guidance on the use of stop and search powers.


4.4.3 An arrest may be necessary where

• The name and/or address of the suspect are not known or there are reasonable grounds for doubting whether a name given is a real name.

For example:

 The officer wishes to caution / warn / summons the suspect for the offence

• It is necessary to prevent the offender suffering physical injury or causing injury to someone else.

For example:

 a person is so intoxicated they are in need of protection or incapable of understanding the warning procedure

 the person is a juvenile and arrest is necessary to reduce the harm or risks faced by that individual if intervention is not taken.

 the person is vulnerable because of their mental health and arrest is necessary to reduce the harm or risks if intervention is not taken

 A person is smoking cannabis in the company or vicinity of other people and arrest is necessary to reduce the harm or risks faced by any individual if intervention is not taken.

 a locality has been identified through the National Intelligence Model as one where there is fear of public disorder associated with the use of cannabis which cannot be effectively dealt with by other means, such as where an open drugs (cannabis) market causes harm to communities.

• It is necessary to protect a child or vulnerable person from the offender

For example

 A person is smoking cannabis in the company or vicinity of young or vulnerable people and arrest is necessary to reduce the harm or risks if intervention is not taken.

• It is necessary to allow the prompt and effective investigation of the offence.

For example:

 the amount of cannabis possessed and/or the person’s behaviour provide reasonable grounds for suspecting that there is an intention to supply and where it is necessary to obtain evidence by questioning.

 the person has received two cannabis warnings previously and the officer wishes to prevent any prosecution of the offence from being hindered by the disappearance of the person.

 in the case of a young or vulnerable person, it is not possible to obtain the services of an appropriate adult elsewhere than at a police station for the purposes of issuing a warning under section 65 of the Crime and Disorder Act 1998.

4.4.4 These guidelines do not encourage the same offender being repeatedly warned for possession of cannabis. Where it can be verified that an offender has received two previous cannabis warnings then a further warning should not be considered. Where this is the case the officer must consider the options available for prosecuting the suspect and arrest may then be necessary to enable the prompt and effective investigation of the offence or of the persons conduct. The rationale for any arrest must be carefully recorded.

4.4.5 Police forces should ensure that local intelligence recording systems have the capability to identify those that are repeatedly warned for cannabis possession so that consideration can be given to dealing with them in a manner proportionate to their level of offending.
4.4.6 It may be necessary to arrest a young offender who is in possession of cannabis on or in the vicinity of premises which may cause a risk to other young people, such as within schools, colleges or youth clubs. However, there may be local partnership agreements in place which would take precedence over these guidelines. The ACPO Guidance for Policing Drugs in Schools ‘Joining Forces’ offers further advice on this.


5 OFFENDERS UNDER 10 YEARS

5.1 When children under the age of 10 years are found in possession of cannabis, they should immediately be considered to be ‘at risk’ and this will prompt the appropriate referrals to other agencies through the child protection team. Although each case has individual circumstances, a child under 10 found in possession of cannabis must always be considered to be at risk of ‘significant harm’.


6 MONITORING

6.1 It will be important to assess the impact of these guidelines on communities. It is, therefore, recommended that through existing databases - for example, Crime recording; Intelligence; Stop and Search - forces monitor the impact of the policing cannabis under the guidelines within their force area.

6.2 It would be good practice to ensure that suitable localised monitoring data is available for sharing within local CDRP’s DA(A)T’s and YOT’s

6.3 If reliable data can be monitored by forces, it is recommended that The Home Office aggregate and monitor nationally.


20 November 2006

Cannabis Guidelines FAQ’s

Is it legal to carry cannabis but not smoke it?
No. Cannabis is illegal it’s as simple as that.

Why is ACPO producing new guidelines?
It is ACPO policy to periodically review any guidelines. In the case of Cannabis the Home Secretary’s recently confirmed that it would stay a class C drug. In addition The Serious Organised Crime and Police Act 2005 (SOCAP) made changes to powers of arrest which made a review necessary.

Why have you changed the name to Cannabis Warnings?
Following extensive consultation it was generally agreed that the term ‘street warning’ was confusing. A warning can be given anywhere; on the street; in a home; in a police station or anywhere else for that matter. The term ‘Cannabis Warning’ is less ambiguous.

Do these Guidelines cover the whole of the UK?
ACPO provides guidelines for police in England, Wales and Northern Ireland. Scotland has a separate representative body.

Why do the guidelines no longer include “Aggravating Factors?”
Section 24 of PACE, as amended by SOCAP, and the PACE Code of Practice on Arrest (Code G) set out the necessity criteria for arrest. Applying the necessity criteria requires the circumstances of the offence to form part of the consideration in determining whether an arrest can be made and justified

Who can give a Cannabis Warning?
Any police officer can give a warning rather than arresting someone who is in possession of cannabis and not suspected of dealing.

What do I do if the subject is obstructive or does not admit to possession?
If the offender disputes the possession of cannabis or will not comply with the procedure then you may consider it necessary to arrest in order to ensure that the offence may be properly investigated – but you must be able to justify that decision yourself.

What is the suggested wording for a Cannabis Warning?
There is no formal wording. It is recommended that the following points are included;
• A record of the investigation will be made at the police station
• The offence of possession will be recorded, for statistical purposes, as detected
• That this procedure does not constitute a criminal record against them

Can I search premises under Section 18 of PACE following a Cannabis Warning?
No, in order to use the power under S18 PACE an arrest must be made for an indictable offence.

What if I make a mistake and warn when I really should have arrested or arrest when I should have warned?
Police sometimes have to make quick decisions based on what is presented to them. Providing you made your decision on an honestly held belief that you were taking action that was both proportionate and necessary in light of what you knew at the time then your action should be justified even if additional evidence later comes to light.

What can I do if the cannabis is only found when the person is being searched following arrest?
The custody officer must be informed of the circumstances. There is nothing to prevent a Cannabis Warning being given at the police station irrespective of other offences being investigated.

When does possession become possession with intent to supply?
It is up to you to have reasonable grounds to suspect possession with intent to supply. This could come from observed behaviour (dealing), responses to questioning or could be inferred where the person has a large amount of cannabis in their possession that requires further investigation or has equipment on them associated with dealing.

Hasn’t the government introduced thresholds for possession?
Section 2 of the Drugs Act 2005 provided the possibility of thresholds, above which a court must assume a drug was possessed with intent to supply unless it is proved otherwise. On 13 October, the Government announced that it was no longer introducing a threshold, so you must continue to use your judgement and experience to assess whether the amount possessed appears reasonable for personal possession only.

What if the amount of cannabis is so small it’s not worth putting in the evidence bag?
If it is large enough for you to identify it as Cannabis then action needs to be taken

What is ‘Cannabis’ for the purpose of Cannabis Warnings?
Cannabis includes any part of the plant except the stalks and seeds. So it includes Cannabis Resin, Herbal Cannabis leaves and Cannabis Oil.

Do I still have to arrest a person that is under 18?
There is no longer a recommendation that such young people must be arrested. You will have to justify that arrest is necessary, some examples of what might help you consider this are contained in the guidelines. However it is recognised that very often arrest will be necessary to obtain the admission/evidence required for the final warning scheme. If this is necessary in your case then you would be justified in making an arrest

Can I give a person that is under 18 a Cannabis Warning?
No. Section 65 of the Crime and Disorder Act 1998 requires that such young people are considered for a reprimand, final warning or prosecution. However, that does not mean you have to arrest at the time in order to seize the cannabis. You could decide to take the young person home to the protection of their parent or guardian. Taking this action would not prevent a later warning or reprimand being given or a prosecution being commenced, at a later date. However if that is not possible and you have no reasonable alternative then you should have no difficulty justifying that an arrest is necessary in your case.

What if a 17 year old and a 19 year old are smoking cannabis together?
You must look at the circumstances of each individual. You must decide in each individual case that the action you take is both necessary and proportionate. You may have to deal with them differently.

What should I do if called to a school where a pupil is in possession of cannabis?
Separate guidance is available for dealing with drugs in schools – Joining Forces – published June 2006. This guidance states;

“Where a young person is found in possession of a suspected illegal drug on school or college premises and police are involved, the following questions can be asked :
Is the young person still on school premises or in a place of safety ?
Is the name and address of the young person known ?
Can parents or carers be contacted if appropriate ?
Is there a range of responses available including information, advice and guidance, referral options and/or school or college disciplinary procedures in place ?
If the answers to all these questions are 'YES' then it may not be necessary or proportionate to arrest a young person and take them to a police station.
When considered together, current guidance and practice suggest that a police officer does not have to arrest for minor possession if the school or college can deal with the incident in an alternative way.”

Normally a local protocol exists between the police and the education authority. This protocol would take precedence over the advice contained in these guidelines.

Why do those with similar amounts of Cannabis apparently get arrested in one BCU but are given a Cannabis Warning on the street in the next?
The decision to arrest or deal with by warning is an individual one. If a BCU has a particular problem area associated with the use of cannabis then this may contribute to the need to make an arrest.

Can I put cannabis ‘down a drain’? If so how do I record it?
No, informal disposals would breach force property recording and audit policy, you must deal with any cannabis found in line with the guidelines.

How many repeat Cannabis Warnings will lead to automatic arrest?
Repeat Cannabis Warnings do not automatically mean arrest. However in writing the guidelines it was not expected that individuals will be given repeated warnings. If you are able to confirm that your suspect has had two previous warnings then to continue to warn would be inappropriate. In these circumstances you should be able to justify that an arrest is necessary for effective investigation of the offence – but you must fully explain how you made your decision in your arrest notes.

If asked about treatment for cannabis misuse what should I say?
In the first instance anyone can find useful information on the Government’s website www.talktofrank.com or call the FRANK Helpline free on 0800 77 66 00. In addition you could put them in touch with your local Drug Action Team or Community Drug and Alcohol Team or suggest they speak to their own doctor.


What does it mean to be an expert in identifying Cannabis?
This generally means that you should have considerable experience in handling cannabis and be able to recognise it, without any doubt, based on that experience. If you haven’t yet got that experience then you must ask someone who has to verify that it is cannabis before you can give a warning.

What do we do about Cannabis Warnings and ‘critical occupations’ such as a person who is a PSV driver?
Just because someone does a particular job, does not in itself justify an arrest. Every case should be treated on its merits but you must follow local and national procedures on sharing intelligence on persons working in high risk areas or occupations that are subject to vetting procedures.

Can I tell partners in other agencies that someone has received a Cannabis Warning?
Sharing Intelligence is key to effective partnership working. However all staff must comply with The Data Protection Act. Any sharing of intelligence must only be carried out within the confines of agreed partnership protocols and for a specific purpose.

Why are Cannabis Warnings not recorded on PNC?
A Cannabis Warning is neither a conviction nor a criminal record. At present recording of cannabis warnings is confined to local intelligence systems.

Can I arrest someone if I believe they are under the influence of Cannabis whilst driving or being in charge of a vehicle??
Driving a motor vehicle whilst impaired through drugs is an offence under The Road Traffic Act 1988. It is a serious offence and providing you have sufficient evidence of impairment, should be dealt with in the same way as those who drive whilst impaired through alcohol.