7th January 2022
Media reports this week told us that the Mayor of London, Sadiq Khan, is to “decriminalise the use of cannabis” in the capital. Is that the case?
The proposed pilot scheme would send young people in three London Boroughs caught with small amounts of cannabis on a drugs education course - like a speed awareness course - instead of being arrested or cautioned.
As the Mayor acknowledges, this is not ground-breaking.
It is a form of drug offence diversion scheme, where people caught with drugs for their own use, or sometimes for minor supply offences, are diverted to education, support or treatment services, instead of getting a life-scarring criminal record. At least a dozen police forces, including Police Scotland, Thames Valley, and West Midlands Police (the UK’s second largest force), already operate such schemes for all drugs (not just cannabis). Some, like Durham and Avon and Somerset, have been doing this since 2016. Transform have long called for the national roll-out of drug offence diversion schemes, and provided police who are considering this approach with evidence, case studies, and guidelines and principles to support them.
Diversion schemes can be pre-arrest, or post-arrest with prosecution dropped if the person complies with conditions. All police forces use some form of police-led diversion scheme for a range of non-drug related offences - because they are proven to reduce reoffending and harm, and save police time. But the expansion of diversion schemes to minor drug offences has, as with most drug policy reforms, been contentious for some policy makers and commentators.
Yet drug offence diversion was recommended in Dame Carol Black’s review of drugs for the Home Office, has long been recommended by the Government's expert Advisory Council on the Misuse of Drugs (ACMD), and is a core recommendation of the UK Government’s new Drug Strategy, which states that instead of going through the criminal justice system: “those who are caught in possession of drugs for the first time may be required to attend a drugs awareness course, so they have the opportunity to understand the harms of drugs and change their behaviour. In some cases, an individual may need more than one opportunity to make this change in their lifestyle, and police forces will have discretion to support this.” In other words, diversion, even if they choose not to call it that in the document.
Diversion is also one of the ‘Ds’ in the Home Office’s flagship project ADDER (Addiction, Diversion, Disruption, Enforcement and Recovery) targeting areas with the worst drug issues. And Kit Malthouse, the UK’s Policing Minister told Parliament in 2019 “The Checkpoint Diversion Programme in Durham...seems to me a wholly laudable project.”
But now the Government has chosen to stick to its default drug war rhetoric and rebrand diversion as a ‘tough consequences out-of-court disposal scheme’ in its drug strategy. Part of the reason may be because they recently attacked the SNP and Labour for backing…diversion. Frustratingly, it is also a term Keir Starmer now seems to be avoiding. Does this matter? After all: “What's in a name? That which we call a rose by any other name would smell as sweet”
In the short term, for individual outcomes, it probably does not matter very much. Calling it ‘tough consequences’ and firing a load of chaff into the airways about taking people’s passports seems to have smuggled diversion past most of the pro drug-war media reporting on the new drug strategy. But in the longer term, the language we choose can matter.
When Transform started working on diversion in 2016, we initially called diversion a ‘form of decriminalisation’. But we later decided, in the interest of delivering progress, to simply call it diversion and explain clearly what that meant. This made it less politically challenging by avoiding the widely misunderstood term 'decriminalisation', reducing obstacles to implementation of such schemes by supportive police and politicians. But the Government pretending diversion is not diversion, also helps it pretend that it is not, in practice, very similar to the highly successful Portuguese-style decriminalisation. And how many times have the Government said they have no plans to decriminalise drugs?
This is part of a wider strategy to allow the Government to keep ramping up its ‘tough on drugs’ rhetoric, even while more positive reforms (that they call others 'soft' for supporting) are being brought in under the radar. There are wider negative ramifications from perpetuating these punitive narratives, both for how people who use drugs are viewed and treated, and the continuation of a counterproductive punitive prohibitionist approach to drugs. In one way the strategy is working; the Labour front bench seems to have been spooked into backing this failed policy, even though it disproportionately harms the marginalised and vulnerable groups they claim to represent.
So is diversion a form of decriminalisation? Well, it's complicated. The waters are muddied by the fact that both diversion and decriminalisation are not formally defined terms, and can cover a wide range of different policy models delivered in different ways, with often very different outcomes. But there is a significant - if not complete - overlap between the two concepts.
‘Decriminalisation’ generally refers to the removal of criminal penalties for possession of small amounts of drugs, usually for personal use (NB not to be confused with legalisation and regulation of the drug supply). So it’s fair to say that diversion, done well, is a form of de facto decriminalisation where the drug-related activity remains a criminal offence, but the law is not enforced in practice, and criminal records are generally avoided. This is in contrast to de jure decriminalisation, where in some legal systems criminal penalties are replaced by civil sanctions such as small fines, or referral to treatment services or education - as in Portugal (and as with diversion). However, the ‘gold standard’ for decriminalisation involves not just de jure removal of the offences from criminal legislation, but no punitive sanctions of any kind (civil or criminal), automatic expungement of previous criminal records, and redirection of resources to support drug service provision. This makes delivery more consistent, helps reduce stigmatisation of people who use drugs, and avoids postcode lotteries on how an individual is dealt with for their drug use. Diversion schemes can be an important step towards this ideal goal - but there is still some way to travel.
The question is, now diversion schemes are happening in multiple areas of the country, are in the Government’s drug strategy, and polls suggest widespread public recognition that drug wars don’t work, has the time come for us to tell it like it is, and make the public aware - diversion is a form of de facto decriminalisation, and that it is a positive step with positive outcomes, to be embraced rather than cowered away from? Because, what’s in a name? Quite a lot really.