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International Journal of Drug Policy 19 (2008) 479–485

Policy analysis

On the threshold: How relevant should quantitybe in determining intent to supply?

Charlotte WalshLecturer in Law, University of Leicester, England

Received 19 April 2007; received in revised form 6 August 2007; accepted 8 August 2007

bstract

ackground: In 2005, the English Government announced plans to introduce thresholds into drugs legislation with a view to simplifyingroof of intent to supply.ethods: During the consultation process, the proposal was vigorously attacked as unjust and impractical. Drawing upon European and

nternational experience, this paper critiques the government’s decision to shelve this proposal.esults\Conclusions: While the use of thresholds to create a presumption that an individual has intent to supply is problematic, thresholdsould usefully have been adopted to facilitate a policy of diversion for those who fell below them.

2007 Elsevier B.V. All rights reserved.

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eywords: Drug-dealing thresholds; Intent to supply; Diversion

n the threshold

On 13 October 2006, Home Office Minister Vernonoaker announced that the government had abandoned itsttempts to set drug thresholds in conjunction with Section 2f the Drugs Act 2005. Following a description of the ratio-ale behind the original enactment of Section 2, the reasonsor this governmental U-turn are examined. This leads intodiscussion of the desirability (or otherwise) of this recent

olte face, focusing on both the practical and the theoreticalssues involved. This includes consideration, inter alia, of theroader international and European context. In essence it isubmitted that, whilst Section 2 was fundamentally flawedand its implementation rightfully abandoned – the conceptf thresholds contained therein could be usefully reworked,nabling them to be used as a welcome liberalising tool inhe drug policy of England.

Section 2 of the Drugs Act 2005 was intended to amendection 5 of the Misuse of Drugs Act 1971. Under Section(3) of this Act it is an offence for a person to have a controlled

rug in his or her possession with intent to supply it to another.he quantity of drug that an individual is found in possessionf has never been determinative of intent to supply under

E-mail address: Ckw2@le.ac.uk.

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955-3959/$ – see front matter © 2007 Elsevier B.V. All rights reserved.oi:10.1016/j.drugpo.2007.08.003

nglish law. Proving intention to supply is notoriously diffi-ult, given that the prosecution are imputing a mind-state: inractice, the police and prosecution will attempt to constructntent through reference to surrounding evidence. Fortsonrovides the following (non-exhaustive) list of potentiallyertinent considerations: the quantity of the drugs, partic-larly if there is a large quantity divided up into smallerdoses”; the place where the drugs are found; unexplainedrofits; the presence of scales capable of calibrating smalluantities; assorted paraphernalia, such as razor blades, stripsf paper for making wraps and “bank bags”; cutting agents;n exceptionally large number of casual acquaintances vis-ting the suspect’s home, particularly for suspiciously shorteriods of time; coded records or calculations; the fact that theuspect appears to be a “non-user”; and telephone billing evi-ence (Fortson, 2005). Expert witnesses will often be calledo give evidence in such cases, on issues such as the amountf drugs that one person might reasonably be expected toonsume.

The significance of an individual’s categorisation as eithersimple user or as someone who intends to supply the drug

elates to sentencing: successful prosecutions for intent toupply generally attract considerably higher sentences thanhose for simple possession due to the fact that the Misusef Drugs Act 1971 is bifurcated along these lines. Schedule

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to this Act deals with the prosecution and punishment offfences: maximum penalties for trafficking offences (a termhat encompasses offences of production, supply and intento supply) are set at a higher level in all Classes (A, B, and) than for offences of possession. Maximum penalties varyot only with reference to the class of substance but alsoccording to whether the conviction is a summary one madet a magistrates’ court or one made on indictment at a Crownourt; this in turn, will be influenced by whether or not theffence being tried is one of simple possession or of intent,s indeed will the decision of whether to bring a prosecu-ion at all. To illustrate, in 2004 the most common disposalsed for possession offences was a caution, used in 44% ofases; in comparison, the most frequently deployed sanctionor trafficking offences was immediate custody, used in 61%f cases, with only 9% of such offenders receiving a cautionMwenda, 2005). Further, upon being convicted of any formf trafficking offence for a third time, the minimum sentencef 7 years contained within the Powers of Criminal CourtsSentencing) Act 2000, Section 110 is activated. These dis-inctions are aimed at helping to maintain proportionality inhe law, with traffickers being punished more harshly due tohe greater harm that they are perceived to cause to society.

Section 2(2) of the Drugs Act 2005 was formulated withview to inserting a new Section 5(4A)–(4C) into the 1971ct, thereby creating a presumption of intention to supplyhere the defendant was found to be in possession of aarticular amount of a controlled drug. The set quantity ofach drug that would activate the presumption was to be pre-cribed by the Secretary of State in regulations. The purposend intended effect of Section 2 was clearly enunciated byhe government: “drug dealers use the defence of personalossession or bulk buying when arrested/charged with drugupply offences. Introducing a minimum threshold will puthe onus on the defendant to demonstrate he [sic] is not deal-ng” (Home Office, 2004). The only costs identified by theovernment as arising from enacting this measure were eco-omic; namely, the costs of processing offenders as dealers aspposed to simply as users. However, in the long term, eco-omic benefits were viewed as being likely to accrue from thisegal change, with it being accredited with potentially hav-ng a deterrent effect that would result in overall savings tohe criminal justice system. Further, social benefits were pre-icted, with the anticipated increase in convictions of dealersosited as likely to have the effect of reducing the availabil-ty of drugs, leading to lower levels of usage, and thus lessemand for treatment, as well as reducing other social harmshat arise from drug use (Home Office, 2004).

Whilst Home Office’s claims that this provision was nec-ssary due to dealers using the defence of personal possessionr bulk buying when charged with drug supply offences areoubtless true in some cases, it is also the (unacknowledged)

ase that these defences are sometimes used truthfully. Thusconcern was that the result of implementing this legisla-

ion would be an increase in wrongful convictions for intento supply of individuals actually guilty of nothing more

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han possession for personal use. Further, the independentransform Drug Policy Foundation, offered the followingefutation of Home Office claims that one of the conse-uences of enacting this provision would be able to reducehe availability and use of drugs:

“There is no evidence offered to support this contention,whilst a great deal exists to contradict it. Research bythe Home Office itself shows quite clearly that increasedarrests of dealers do not have any measurable effect onavailability or use (which continue to increase), a propo-sition supported in some detail by a recent unpublishedreport from the Number 10 Strategy Unit. The reality isthat for every dealer arrested there is a queue of willingreplacements all too eager to profit from the lucrative ille-gal markets created by prohibiting goods that are in hugedemand” (Transform Drug Policy Foundation, 2005).

The unpublished report referred to in the above quote waseaked in its entirety by the Guardian newspaper in July 2005SU Drugs Project, 2003). That the government is acutelyware that the drugs supply market is complex, and never real-stically expected it to be significantly affected by measuresuch as this, is apparent: “Traffickers have adapted effec-ively to government interventions. They run highly profitableusinesses and can withstand temporary shocks to their prof-tability. Interventions have been short lived or have had aegligible impact on the retail market . . . Even if supply inter-entions did successfully increase price, the evidence is notufficiently strong to prove that this would reduce harm” (SUrugs Project, 2003). For the government to be suppressing

uch evidence, whilst making grand claims about the likelyffects of implementing Section 2, was of some concern.

Following its scrutiny of the provisions of the Drugs Act005, the Joint Committee on Human Rights – a governmen-al body established primarily to ensure the compatibilityf proposed legislation with the European Convention onuman Rights (ECHR) – found that this statutory presump-

ion and its congruence with Article 6(2) of the Conventionas one of the key issues raised by the legislation (Jointommittee on Human Rights, 2004). They welcomed the fact

hat the presumption placed merely an evidential, as opposedo a legal, burden on the accused. Whilst placing a legal bur-en on a defendant in this context would have required thathey prove – on the balance of probabilities – that they did notave intent to supply in order to avoid being convicted of thisffence, evidential burdens are less onerous, with the defen-ant having only to put an issue before the court that bringsnto question the prosecution’s interpretation of events. Ifhere is sufficient evidence to render this alternative perspec-ive on the facts worthy of consideration by the court, the fullurden of proof – beyond reasonable doubt – is shifted back

o the prosecution. Imposing this lesser, evidential burden,as seen to be in keeping not only with European case law –

or example, Salabukia v France (1988) 13 EHRR 379 – butlso with the United Kingdom’s House of Lords ruling on

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November 2005:recommendedthresholds

June 2006: revisedrecommendedthresholds

Cannabis 112 g resin (∼4 oz) 5 g (∼0.5 oz)500 g herb (∼7.5 oz) 5 g (∼0.5 oz)

Amphetamines 14 g 14 gEcstasy 10 tablets 5 tablets (1.5 g)Heroin 7 g 2 gCC

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his issue in Lambert [2001] UKHL 37. Ultimately, the Jointommittee on Human Rights concluded that it was unable to

each a definitive view on compatibility, due to the fact thathe prescribed amounts that would trigger the statutory pre-umption were not to be found within the legislation itself. Itommented:

“Assuming that the regulations prescribe amounts whichare proportionate to the seriousness of the offence, we aresatisfied that the reverse burden provision in clause 2(2) iscompatible in principle with the presumption of innocencein Article 6(2) ECHR because it imposes only an eviden-tial burden on the accused” (Joint Committee on HumanRights, 2004).

etting the thresholds

The consultation on where the thresholds should be setas launched in November 2005. Consultees – who wererawn from a range of bodies, including the Advisory Coun-il on the Misuse of Drugs, the Association of Chief Policefficers and the Crown Prosecution Service – were sent a let-

er asking for their views on the quantity of a controlled drugound in a person’s possession above which a court would pre-ume that it was held with intent to supply others (availableia: http://www.drugs.gov.uk/publication-search/reducing-upply/thresholds-drugs-act-05?view=Binary). Initially, thedea was that thresholds would only be set for the followingrugs: heroin; cocaine; crack cocaine; ecstasy; amphetamine;nd cannabis. This was on the basis that these are the drugsonsidered to be causing the most harm or to be the mostsed. It was stressed that: “the thresholds set must be pro-ortionate to the offence of possession with intent to supplyhe controlled drug in question and the penalties that offencettracts in order to ensure compatibility with the Europeanonvention on Human Rights.”

The letter contained the government’s draft proposals forhere the thresholds should be fixed. These initial draft rec-mmendations created controversy in the media, with manyegarding the thresholds as having been set too high: it wasrgued that someone could be arrested with enough cannabiso make 500 joints, yet still claim that the cannabis wasor personal use, and that this was unacceptable (for exam-le, Bonnici, 2005). Thus, revised proposals were outlinedn June 2006, generating the reverse reaction: namely, thathe thresholds had now been set too low, with those foundarrying enough cannabis to make ten joints or in posses-ion of only five ecstasy tablets presumed to be dealingfor example, Travis, 2006). Both the draft recommenda-ions and the revised proposals are detailed in the table belowTable 1).

The media furore surrounding both sets of proposals leadsn to the broader question of whether it is even possible toet the “right” thresholds. This was a concern raised by aumber of groups with users’ interests at heart. Many of

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hese groups objected to Section 2 in principle, regardlessf where thresholds were set. To illustrate, in a letter sent tohe Drug Strategy Directorate by the drugs charity Release

in the broader context of their fundamental oppositiono this provision as both unnecessary and unworkable

they pointed out: “The question what is a reasonableuantity to possess for personal use depends upon the factsf individual cases, regional variations and often requiresxpert evidence. The process of arriving at a formula for thiss likely to be unscientific” (available via: http://www.release.rg.uk/news/response%20final%20060303%20website.pdf).he practical problems inherent in trying to establish thresh-lds were neatly summarised in the comprehensive paper byr Russell Newcombe on this subject for the Manchester

harity, Lifeline:

“These include: (1) the proposals do not take purity intoaccount; (2) the proposals do not appear to be linked to evi-dence about the standard weight of drug deals purchased byconsumers, nor how many days drug use a typical drug pur-chase covers; (3) the proposals do not suggest thresholdsfor drugs in non-standard forms; (4) the thresholds appearto be based on ‘average consumption’, and discriminateagainst heavier users; (5) the proposals do not distinguishkey sub-types of each drug” (Newcombe, 2006).

This report drew out other pertinent issues in this area,uch as that drugs are generally sold at lower prices thereater the amount purchased and that many users purchasearger amounts than the “standard deal”, either because theyre heavier users, or simply to reduce the risk of detectiony minimising contact with drug dealers. Further, the like-ihood of users buying in large quantities has increased dueo the fact that the prices of drugs have fallen markedly overhe past decade. Taking ecstasy as an example, the typicalumber of ecstasy tablets purchased at one time climbedrom 10 in 2003 to 21 in 2005; this corresponds with anncrease in the number of tablets taken in one night, aspposed to an increase in the number of ecstasy purchasersho are actually dealers (Newcombe, 2006). How might

uch issues be taken into account when trying to separatesers from dealers via set thresholds? As Baroness Anelayf St Johns commented during the Bill’s passage through

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he House of Lords, “the government have set themselvesn almost impossible task” (H.L. Deb, 4 April 2005, column40).

The consultation process clearly revealed the veracityf Baroness Anelay’s pronouncement (Home Office, 2006).ixty-six responses were returned, with one-third of theseriticizing the provision in principle. Concerns were raisedith regard to: the reverse evidential burden of proof; theeed to consider the individual circumstances of each case;onsequent anticipated changes to drug-dealing practices;otential widespread misunderstanding of the provision; andhe proposed prescribed levels. The governments were par-icularly concerned by suggestions that the provision mayave the unintended consequences of: providing dealers whoell below the threshold with a defence; leading to the mis-onception that possession amounts below the prescribedmount are lawful or consumption is not harmful; leadingo cases that fell below the threshold not being assiduouslyursued. Thus there was a fear that the setting of thresh-lds may actually harm policing, as opposed to aiding it.nterestingly, all of these concerns had been articulated in

Select Committee Report published in 2002 followingn extensive review of drug policy, which looked, interlia, at this issue (Home Affairs Select Committee, 2002).he Select Committee concluded that they were not per-uaded that an intent to supply should be presumed on theasis of amounts of drugs found and recommended that theffences of simple possession and possession with intento supply should be retained without alteration: Section 2as drawn up in direct contradiction with this recommenda-

ion.The consultation process also alerted the government to

he fear that Section 2 may prove ineffective because: thevidential burden is easy to displace; dealers will mod-fy their behaviour to avoid being found in possession ofmounts above the prescribed amounts; and, there is onlysmall number of cases where the only evidence of deal-

ng is the amount of drugs in a person’s possession. Theovernment was forced to acknowledge that: “There areifficulties in establishing prescribed amounts which are uni-ersally applicable and appropriate. This was reflected inhe lack of consensus among respondents as to the levelt which prescribed levels should be set” (Home Office,006). Ultimately, the outcome of the consultation processas unceremonious abandonment of the whole endeavour

n autumn 2006. As a result, it remains at the discretionf the Crown Prosecution Service whether an individual isharged with possession with intent to supply, or with simpleossession.

For all the reasons articulated above, the final decision noto introduce thresholds should not be lamented. However,he absence of thresholds can create problems of its own.

ndeed, the failure amongst experts to find a consensus asegards where the thresholds should be set is a strong indi-ation that different police officers will use their discretionery differently when interpreting what constitutes a reason-

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ble amount of drugs for personal use. The government have,n fact, already acknowledged the problem of “justice byeography” in this area, with MP Caroline Flint commenting:

“I understand that in parts of the country the CPS and thepolice often look at the amount of possession informally.While that is not enshrined in guidance, they use it as aguide for whether they can take a case to court or not. Thathas not had the rigour of consultation and could lead toinconsistencies in different parts of the country” (Houseof Commons Standing Committee, 2004).

Compounding this, there are racial dimensions to thisssue. Kalunta-Crumpton’s research, derived from an obser-ation of court proceedings involving drug offences, revealedhat the absence of thresholds allowed in an element ofiscretion that appeared to be being exercised to raciallyiscriminatory effect (Kalunta-Crumpton, 1999). Kalunta-rumpton reported that, in ostensibly similar circumstances,lack defendants were more likely to be “constructed” asaving intent to supply, whilst their white counterparts wereore likely to be defined as simple users. Unfortunately, the

oncern that discretion all too easily translates into discrim-nation was bolstered by a recent Scotland Yard study (aseported by Cobain & Boffey, 2006) analysing the policingf cannabis in the metropolis since its reclassification from alass B to a Class C drug by the Misuse of Drugs Act 1971

Modification) (No. 2) Order 2003. Whether or not peoplere now arrested for cannabis possession is – arguably – evenore subject to the vagaries of police discretion than previ-

usly; the study revealed that black people were shown to beore likely to face criminal charges when caught carrying

annabis than white people committing the same offence.urther, the likelihood of being caught carrying cannabis

n the first place was far higher for black people: almost0% of those caught in possession of cannabis were clas-ified as African–Caribbean, despite this group only makingp approximately 12% of the population in the metropoli-an area. For all the problems inherent within the setting ofhresholds, they had the potential to mitigate against both geo-raphical disparities and against racial discrimination undulynfluencing discretionary decision-making.

However, the issue is not straight-forward, and the intro-uction of thresholds can aggravate as well as alleviateroblems of racial disparity. Previous developments in thenited States are particularly revealing. Here, the federalnti-Drug Abuse Act 1986 established mandatory mini-um penalties for drug trafficking offences, using quantity

o determine thresholds. One of the motives in enacting thisegislation was ostensibly to reduce racial disparities in sen-encing: having fixed sentences was meant to ensure thatactors that should hold no relevance to sentencing – such

s race – could not be taken into account by sentencers.owever, crucially, the Act set different quantitative thresh-lds for crack cocaine than for powder cocaine, such that theenalty for being in possession of one gram of crack was

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kin to that received for being in possession of one hundredrams of powder cocaine. This had serious racial implica-ions, given that African Americans were far more likelyhan white Americans to be caught in possession of crackocaine, with the reverse being true for powder cocaine. Thisederal legislation was frequently echoed in sentencing policyt state level. As a result, drugs-related sentencing legislationuch as this is viewed as being one of the main factors driv-ng the severe over-representation of African Americans inrisons.

The lesson to be learnt from this is that, if setting dif-erent thresholds for different drugs, differential patterns ofse between different racial groups needs to be taken intoccount. Similarly, when considering the “dangerousness”f any given drug, allowing racial stereotypes to permeatehis assessment needs to be avoided: the pharmacologicalifferences between powder cocaine and crack cocaine cane argued to have been exaggerated in the United States,erhaps affected by sociological factors, such as percep-ions of the dangerousness of those most likely to partakef them. It is commendable that the proposed thresholds inhe United Kingdom set the same limits for both crack andowder cocaine, perhaps due to an awareness of recent Unitedtates drug policy history (see further Free, 1997; AlexanderGyamerah, 1997; Kautt & Spohn, 2002).

nder the threshold

When considering potential developments in drug pol-cy, it is always necessary to look at England’s internationalbligations, enshrined within the three United Nations (UN)onventions that establish the international legal frame-ork on drugs. Most pertinently, Article 3.2 of the 1988N Convention against Illicit Traffic in Narcotic Drugs andsychotropic Substances places state parties under an inter-ational legal obligation to create a specific offence forossession for personal use, distinguishing it from the moreerious trafficking offences contained within Article 3.1. Thisequirement is qualified by the fact that it imposes this obli-ation on a state party “subject to its constitutional principlesnd the basic concepts of its legal system”. Further, thisrovision only requires parties to criminalise possession forersonal consumption if it is contrary to the provisions of thearlier 1961 and 1971 conventions: thus, the flexibilities ofhe earlier conventions are preserved.

These conventions “seem to allow signatory countriesore freedom to determine the penalties to be imposed

or personal-use offences than for trafficking offences”EMCDDA, 2005): Article 3.4.c establishes that “in appro-riate cases of a minor nature, the parties may provide, aslternatives to conviction or punishment, measures such as

ducation, rehabilitation or social reintegration”. Traffick-ng offences, on the other hand, are expected to be dealtith in a more punitive fashion: “many of the obligationsnder international law set out in the 1988 convention do

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ot apply to the offence of possession for personal use, buthey should apply to the other offences” (EMCDDA, 2003).or example, traffickers may be subject to extradition pro-eedings and confiscation of assets, whereas users would not.rticle 3.3 permits that intent or purpose to commit one of

hese trafficking offences may be inferred from objective fac-ual circumstances, which include the quantities of the drugossessed. Thus one can see the significance at internationalevel of the determination of whether one is a user or a dealeria the domestic establishment of thresholds.

In terms of European obligations, in 2001 the Europeanommission tabled a draft Framework Decision aimed at har-onising the definition of drug-trafficking – and responses to

t – across the EU: this was agreed by the European Counciln 2003 (Council of the European Union, 2003). However,ffences of simple possession remain outside the scope ofhe framework decision, and furthermore, the definition ofhat constitutes possession also remains the responsibil-

ty of each member state. Whilst drafting this framework,he Commission did consider the possibility of uniformlypplying thresholds across the EU to avoid “creating some-hing of a quantum leap between an offence perceived to be

inor in one country and serious in the other” (EMCDDA,005). However, the notion of unified thresholds was ulti-ately dismissed as unworkable due to the fact that many

ountries use the distinction between possession and traf-cking to enable them to de-penalise low-level offences. Thisas clearly demonstrated in a European Monitoring Centre

or Drugs & Drug Addiction (EMCDDA) publication whichndicates a trend for proceedings to be suspended or droppedn cases where the quantities possessed (together with otherbjective aspects of the case) do not indicate a purpose otherhan personal use (EMCDDA, 2003). In some countries theyound there to be a clear and growing sense of disproportionetween custodial sentences and the use of illicit drugs athe low end of the scale. Nonetheless, this view is not heldniversally throughout Europe, hardly surprising given that itncludes countries with such divergent drug policies as Hol-and and Sweden. Thus, agreement on where European-widehresholds should be set could never feasibly be reached.

As a result, the situation remains that, where thresholdsre in place, they are determined at state level. Usefully,he EMCDDA have produced a comparative study lookingt where states have decided to set such thresholds. Theyiscovered: “all countries offer legal or judicial distinctiono graduate the severity of the offence of drug possessionnd related actions. Frequently, this is done by reference tohe quantity of drugs involved and certain quantities maye stipulated to mark the threshold between certain levels offfence or punishment” (EMCDDA, 2003). Whilst the differ-nt European countries were found to use a variety of differentethods to establish thresholds – for example, describing

hem in vague terms, such as “small” or “large” amountsf drugs, or by making reference to weight – this documenttressed the fact that, across the EU, the real emphasis seemso be on the intent rather than the amount possessed.

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It is also interesting to note that the practice of enshrin-ng in legislation an evidential presumption that someones involved in supply, based on quantities possessed, doesot seem to occur in any EU state: “Although a number ofountries use a specified quantity as a determinant betweenrosecution or non-prosecution of a person using or pos-essing drugs, and as a determinant between trafficking anderious trafficking, it appears that none choose to consider theuantity itself as effectively proving the intention of personalse or trafficking. This is important, as strict interpretation ofuch a threshold, without taking other indicators into account,ould risk distorting the purpose of the law” (EMCDDA,003). The following was highlighted by the EMCDDA as aeature of the development of thresholds throughout Europe:regarding trends in legislation, seven countries – Belgium,ermany, Greece, Italy, Netherlands, Portugal and Finland –ave defined or redefined some sort of limit within the last0 years in order to use the quantity as an indicator for non-rosecution of individuals caught with drugs that appear toe for personal use” (EMCDDA, 2003).

Drug policy developments in Portugal, in particular, pro-ide an interesting example of the way in which thresholdsave been used to facilitate diversion, especially the mod-fication of that country’s main piece of prohibitory drugsegislation – Decree Law 15/93 – via the liberalising Law0/2000. This amendment was born out of a growing Por-ugese harm-reductionist orientation: it ensures that thoseaught in possession of a modest quantity of drugs will nor-ally be diverted from the penal system. The threshold underhich this occurs is defined with reference to a multiple ofdaily dose; namely, the average quantity of a drug that an

ndividual might be expected to use over a 10-day period. It isnteresting to note that this system applies to all drugs, not justhose deemed to be “soft”. As such, it is a radical approach,ctivated in response to a drug problem that was perceived toe growing, particularly in relation to heroin use. To give aouple of illustrations of the thresholds that have been estab-ished, an average daily dose of cannabis has been defined as.5 g and of cocaine, 0.2 g. These thresholds are presumptives opposed to be determinative; however, so long as there iso additional evidence implicating the drug user in more seri-us offences, drug possession is decriminalised, dealt with asn administrative violation, as opposed to being prosecuteds a criminal offence. The Portugese view this as complyingith their international obligations under the UN Conven-

ions due to the fact that drug possession is still prohibited,ven though the penalties for breach are not criminal.

In typical circumstances, police who uncover drug posses-ion will not arrest the individual concerned: rather, they willeize the drugs, and refer the user to a local Commission forrug Addiction Dissuasion, a body composed of three peo-le, drawn from the legal, medical and social-work sectors.

he Commission have a number of different administrativeptions at their disposal, such as fines, bans on visiting cer-ain places and a requirement to report periodically to them.n practice, the Commission will evaluate the situation of

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he drug user: if there is no evidence of drug-dependence, themposition of any administrative penalty is suspended and theerson is diverted out of the system; if, however, their drugse appears to be problematic, they will be referred to eitherealth or social services for treatment. If any future offenceshould be detected, the possibility of a fine or some otheroercive administrative sanction being applied once againrises.

Interviews with the people involved in this process – suchs members of the Portugese Commission for a National Drugtrategy and drug treatment delivery organisations – haveevealed that most are strongly in favour of decriminalisation.t is viewed as enhancing the likelihood that those who areerely occasional or recreational users are not stigmatised,hilst those with a problem are more likely to be encouraged

nto treatment. However, it is recognised that this new sys-em potentially places a greater strain on treatment providers,nd the Portugese government increased treatment capacityt the time of its introduction, something that will need to beorne in mind should this example be followed in the Unitedingdom. Whilst the effects of this new policy are somewhatnder-researched – in terms of, for example, its impact onmprisonment of drug users and the extent to which prob-ematic drug users are now successfully rehabilitated – it isair to say that the Portugese utilisation of thresholds has suc-essfully facilitated diversion of tens of thousands of usersrom the criminal justice system since its implementation.urther, this has not been accompanied by either a significant

ncrease in drug use in Portugal, nor in the “drug tourism”hich opponents feared it would stimulate (see further, Loo,eusekom, & Kahan, 2002; EMCDDA, 2003; Allen, Trace,Klein, 2004; EMCDDA, 2005).Having abandoned the idea of introducing thresholds to

tighten up” drug policy, perhaps the government couldonsider following the model of certain of our Europeaneighbours, with those found in possession of small amountshat fall below formally established thresholds being divertedway from the criminal justice system. As with the Por-ugese system, this diversion could either be absolute, or itould involve diversion into treatment, counselling or educa-ion, depending upon the perceived needs of the drug user. Itould simply involve extending the system introduced in 2004pecifically in relation to cannabis possession offences to allther drugs; namely that – in the absence of any aggravatingactors – those adults found in possession of a small amountf any drugs would have them confiscated and be given an on-he-spot warning (ACPO, 2003). A further option is that thoseho fall below established thresholds could be subjected to

dministrative penalties, such as the imposition of on-the-pot fines. For those found in possession of larger quantitiest would remain the case that the prosecution would have torove intention to supply in order to obtain a conviction for

his higher charge, in the traditional manner. Whilst it is stillrue that the setting of thresholds remains an exceptionallyomplex task to get “right”, the fact that under these proposalshey would be performing a liberalising function softens any

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etriment caused by the inescapable element of arbitrarinesshat will always accompany such an endeavour.

eferences

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