Article in Justice of the Peace

172 JPN (19 Apr 2008) 249

Doc. No. 2008.011

Introductory Note by Francis Bennion

This article partly relates to an editorial in Justice of the Peace by Adrian Turner. It is followed by a short piece in which Mr Turner explains what he meant by his editorial.

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Dangerous Drugs: Should We Really Take A Leap In The Dark?

FRANCIS BENNION*

Introductory

On dangerous drugs, says Brian Block, what is needed now is a courageous leap: they should be decriminalized.1 In that he echoes the learned editor of this journal, Adrian Turner, who wrote:

‘If addicts could be legally prescribed the drugs they crave, the biggest and most violent illegal industry would collapse overnight’.2

I will call the suggested decriminalization of dangerous drugs the Turner/Block proposal. It’s a point of view, advanced by respected commentators, even though it may at first seem shocking. Knee-jerk rejection seems to be called for, but let us instead try cool analysis of the question posed.

What is that question? Ultimately it is this: should these deleterious substances be taken out of the criminal law? However, we need first to consider a key question which stands farther back. What duty does the modern state owe its citizens to protect them from known perils?

The State’s Duty To Protect Its Citizens

Civilisation depends on protection. History shows that, if any group of people try to live together without adequate protection, they will not survive the human and other predators who will inevitably attack them. From earliest times the groupings that resulted from this truth tended to be fairly large, usually growing into what we have come to know as kingdoms. Later, small kingdoms coalesced into bigger ones - as happened in the late Anglo-Saxon era with what then became the kingdom of England. Within a kingdom there might be sub-groupings. For example within the feudal system introduced with the Norman conquest of England a sub-grouping might consist of a manor or liberty under the immediate protection of a lord holding from the king.

The laws of early Christian kingdoms were mainly concerned with protecting the kingdom’s inhabitants, from the church and the king down. As there were no police forces this was done by laying down a tariff of fines. The amounts varied with the nature of the offence and the rank of the victim. These fines bought off the feuds that would otherwise have disturbed the kingdom. The effect was to safeguard stability, provide the king with a necessary income (since he claimed a proportion of the fines), and indirectly protect the citizens from internal strife. An example is furnished by the first English written laws, provided around AD 616 by King Æthelberht of Kent.3

Later laws providing protection took various forms. The common law adopted maxims from Roman law and elsewhere such as salus populi suprema lex (the health of the people is the supreme law). Protection of the inhabitants might even require the setting aside of ordinary law, as when the maxim necessitas non habet legem (necessity knows no law) applied. Under this

‘. . . when enemies come against the realm to the sea-coast it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for the

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defence of the realm, for every subject hath benefit by it. And therefore by the common law, every man may come upon my land for the defence of the realm . . . and for the commonwealth a man shall suffer damage; as, for saving of a city or town, a house shall be plucked down if the next be on fire . . .' 4

The effect of this principle is to require a modified interpretation of legislation where the state is in danger or there is other dire emergency. Presumptions such as those in favour of personal liberty may then have to give way.5

Such principles have come to be grouped under the heading of legal policy or the policy of the law. This is based on public policy. The content of public policy (and therefore of legal policy) is what the court thinks and says it is. However, in this the court may be guided by Acts of Parliament (even though not directly applicable in the instant case) as indicating the legislature’s view of the content of relevant policy. As a matter of juridical coherence, the two views ought not to be allowed by the courts to get out of line, which means that ultimately Parliament’s view of legal policy, where it has been declared or indicated in legislation, must be allowed to prevail.

One principle of legal policy is that by the exercise of state power the life or health of a person should not be taken away, impaired or endangered, except under clear authority of law. Thus it was said by counsel in an ancient case:

‘When laws or statutes are made, yet there are certain things which are exempted and excepted out of the provision of the same by the law of reason, although they are not expressly excepted. As the breaking of prison is felony in the prisoner himself by the Statute de Frangentibus Prisonam yet if the prison be on fire, and they who are in break the prison to save their lives, this shall be excused by the law of reason, and yet the words of the statute are against it.’6

In fact prison-breaking is a common law offence and the statute cited was an ameliorating one said to have been enacted for the benefit of the King’s favourite Piers Gaveston.7 Coke qualifies this passage in counsel’s argument by inserting after ‘fire’ the words ‘unlesse it be by the privity of the prisoner’.8

That the legal policy of protecting citizens has also a prominent active side was demonstrated by the establishment in Britain of the National Health Service (NHS) in 1948. It was announced by the Minister of Health, Aneurin Bevan MP, at the launch of the NHS that this service, funded primarily out of taxation, had three core principles since maintained:

• that it meet the health needs of everyone,

• that it be free at the point of delivery,

• that it be based on clinical need, not ability to pay.

The common law protects every individual who is physically within the jurisdiction, whether a citizen or not. When in a poor law case it was objected that the law gave an alien no claim to subsistence, Lord Ellenborough CJ said ‘the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving; and [the poor laws] were only passed to fix the obligation more certainly, and point out distinctly in what manner it should be borne’.9

Earlier, towards the end of the eighteenth century, the owner of a slave named James Somerset brought him on a visit from Jamaica to England. While the owner went about his business, he claimed the right to imprison his human property in irons until the ship which had brought that property to England set sail again for Jamaica. Lord Mansfield famously gave his judgment:

‘Every man who comes into England is entitled to the protection of English law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free.’10

Legislation follows this universal principle. The National Health Service Act 1946 required the appropriate Minister to establish a comprehensive health service designed to promote the physical and mental health of ‘the people of England and Wales’. This enactment was regarded as applying in the same way to all who found themselves within the territory to which the Act extended, as shown by the fact that in 1949 Parliament conferred a new power to impose charges under the Act for health facilities provided to persons not ordinarily resident in that territory.11

Just as the British state has traditionally extended its protection to foreigners within the state, so it expects foreign states to give the like protection to travelling British subjects. The British passport includes the following admonition:

‘Her Britannic Majesty’s Secretary of State Requests and requires in the Name of Her Majesty all those whom it may concern to . . . afford the bearer such assistance and protection as may be necessary.’

Implementation of the Turner/Block proposal on decriminalization of dangerous drugs would indicate a decrease in the British state’s long-established concern for the safety of the inhabitants. However, this concern has tended to increase rather than diminish over time. In an article last week I reported that sociologists now consider safety to be one of the prime policy and legislative drivers influencing the authorities in what some criticise as our nanny state.12

But Don’t Adults Have Free Will?

The above arguments based on the concern of the state for the health and wellbeing of its inhabitants militate against the Turner/Block proposal, if they do not blow it out of the water. But there is an argument the other way. I take the liberty of citing my own words:

‘The right of an adult of sound mind to exercise self-determination over his or her body even overrides the interest of the state in preserving life.’13

Various authorities are cited in support of this proposition, including the following.

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If a prisoner insists on a hunger strike the prison authorities, doctors etc have no right or duty to interfere by force-feeding or otherwise. The prisoner must be allowed to die of starvation if such is his or her desire.14

In construing both statutory and common law powers of medical practitioners the court will have regard to the autonomy of the patient, that is the right to control what is done to his or her body. This was expressed by Lord Donaldson MR in the following propositions:

‘(1) Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death . . . This is so notwithstanding the very strong public interest in preserving the life and health of all citizens . . .15

(2) An adult patient may be deprived of his capacity to decide by long-term mental incapacity . . .

(3) If an adult patient did not have the capacity to decide at the time of the purported refusal and still does not have that capacity, it is the duty of the doctors to treat him in whatever way they consider, in the exercise of clinical judgment, to be his best interests.

(4) Doctors faced with a refusal of consent have to give very careful and detailed consideration to what was the patient’s capacity to decide at the time when the decision was made . . . It may be a case of reduced capacity.’16

These propositions were cited in a case where Thorpe J held that the High Court has an inherent jurisdiction (a) to rule by way of injunction or declaration that an individual is capable of refusing or consenting to medical treatment, and (b) to determine the effect of a purported advance directive by the patient as to his future medical treatment.17 This conclusion was reached by reference to court decisions emphasising that the medical professions ‘have ready access to judicial responsibility when difficult ethical questions confront them’.

Paragraphs (2) to (4) of Lord Donaldson’s formulation above bring in a crucial dimension, the case where the person in question lacks the legal capacity to take decisions, whether on medical grounds or through immaturity. Except where there is lack of capacity, the common law principle of individual medical sovereignty expressed in paragraph (1) seems logically applicable to the case of knowing self-administration of a dangerous drug. This can be expressed as follows:

If there were no statutory restriction on the supply, possession or use of any dangerous drug, the common law principle of individual medical sovereignty would apply, in the case of a person of full capacity, to the supply, possession or use of that drug.

However, two common law principles of legal policy would be in conflict here. It seems that the principle of individual medical sovereignty would trump the principle requiring state protection of the health of individuals.

There is however another hurdle to be jumped by the Turner/Block proposal.

What About the Human Rights Act?

Suppose that, in accordance with the Turner/Block proposal, dangerous drugs were decriminalized (that is the Acts controlling them were repealed). Would the Human Rights Act 1998 nevertheless require the state to give individuals protection against such drugs? This is not an easy question to answer.

The relevant provision of the European Convention on Human Rights is Article 2, which says ‘Everyone’s right to life shall be protected by law’. Lord Bingham of Cornhill commented that the European Court of Human Rights had repeatedly interpreted Article 2 as imposing on member states substantive obligations ‘to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life’.18 It is doubtful whether the 1998 Act satisfies this requirement, so recourse to the Strasbourg court might be needed.

The 1998 Act operates in two ways. By section 3(1), legislation must so far as possible be read and given effect in a way which is compatible with the Convention rights. By section 6(1), it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Here ‘act’ includes a failure to act (other than failure to introduce in, or lay before, Parliament a proposal for legislation; or make any primary legislation).19

The result appears to be that if the Government introduced into Parliament a Bill for the repeal without replacement of present legislation criminalizing dangerous drugs it would infringe section 6(1), though Parliament would not infringe that provision if it passed the Bill. An injunction could it seems be issued restraining the introduction of such a Bill, though that would lie in the discretion of the court and so is problematic.

If under the Turner/Block proposal Parliament did repeal the legislation which criminalizes dangerous drugs, the Human Rights Act 1998 would probably not impede the operation at common law of the principle of individual medical sovereignty. Under this, individuals of full age and capacity would it seems be entitled, if they wished, to partake of dangerous drugs. Persons not of full age and capacity would of course continue to be protected by law.

Where Does That Leave Us?

The time has come to take a brief look at the reasons advanced for the Turner/Block proposal. Here I am in a difficulty. Both papers refer to a document they call ‘Drugs: protecting families and communities’. The Turner editorial refers to this as ‘the recently published Home Office paper’, while the Block article simply describes it as ‘another Home Office paper’. This information was insufficient to enable me to trace the paper on the internet, though I did find a Home Office paper which seemed rather similar though clearly it was not the same. It was dated February 27 2008 and headed ‘New action to tackle drug use to protect families and communities’.

The Turner editorial complains vaguely that the Home Office document shows ‘no new imagination let alone boldness’. The editorial sees ‘little prospect of improvement while we continue to depend on law enforcement, asset recovery and treatment’. So it suggests decriminalization on the ground that illegality ‘may be contributing more to the problem than to its solution’.

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The Home Office have a 10-year anti-drugs strategy, but the Block article asserts that ‘we do not need a 10-year strategy that will tinker with the problem and not solve it’. What is needed, says Mr Block, is ‘a single bold step not a series of timid ones’. He suggests, apparently seriously, that the Government itself should become ‘a single dealer that gave away drugs for free’ (even to child addicts apparently).

Mr Block demands that the dangerous drugs problem be ‘solved’. But perhaps it is not capable of ‘solution’. We do not ask for the abolition of our Fire Services on the ground that there continue to be careless or malicious people who start fires. We do not think the NHS should be terminated because people insist on mistreating their bodies so that they fall ill. Many of our protective and lifesaving services deal with problems that are incapable of ‘solution’ but will inevitably recur simply because human beings are what they are.

One thing human beings very often are is foolish. It is foolish for people to go on ingesting dangerous drugs when they know the likely consequences; but they insist on doing it in large numbers. There are many reasons, but the main one is that they get a kick out of it. Janet Firshein says on the internet:

‘People who use drugs, including alcohol, do so because they like what the drugs do to their brains. All drugs of abuse, from alcohol to nicotine to heroin, cause a series of temporary changes in the brain that produce the ‘high’. One of these changes is the rise in available levels of certain neurotransmitters associated with feelings of pleasure. Key among these is dopamine, a naturally occurring neurotransmitter that some scientists now think is implicated in most of the basic human experiences of pleasure . . . Drugs of abuse also boost dopamine levels. When a person takes a hit of crack cocaine - or a drag on a cigarette - the drugs cause a spike in dopamine levels in the brain, and a rush of euphoria, or pleasure.’

Yes, she is talking about legal as well as illegal drugs. There is continuous discussion in the Home Office and elsewhere about just where the line between these should be drawn. I bear in mind the principle of individual medical sovereignty, but I remain unconvinced that no line at all should be drawn and that all dangerous drugs should be decriminalized.

Postscript

Long ago I was involved in the drafting of a Government Bill that dealt with the criminalization of certain drugs. It amended what were then known as the Dangerous Drugs Acts. A change of title came with the Misuse of Drugs Act 1971. This may have been a more accurate description of the Act’s contents, but I have always preferred the old title and have used it in this article. Danger is what we are talking about.

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Editor’s response – ‘Making Dangerous Drugs Legal’?

I am very grateful that such a distinguished and learned international commentator as Francis Bennion has taken the time and trouble to respond to points I raised in my editorial of 15 March and the subsequent (and quite independent) article by Dr Block. Readers may have been left with the impression, however, that I support general decriminalization. That exaggerates the statements I made and, incidentally, the views that I hold.

I made two principal points. The first was intended to provoke discussion (and it has clearly succeeded). I wrote: ‘The time has come to consider seriously whether the illegality of drug use is contributing more to the problem than its solution’. This is not synonymous with calling for complete de-criminalization. It invites a review of the effectiveness of present policy and a readiness to accept that blanket prohibition may be serving criminal interests better than the health of individuals. The second was ‘If addicts could be legally prescribed the drugs they crave, the biggest and most violent industry would collapse overnight’. This may be thought over optimistic. It probably is. But note the reference to ‘addicts’. I was not suggesting, and would never suggest, that dangerous drugs should be available to anyone from any chemist. The last thing I want to see is the greater use of dangerous substances. On the contrary, I was arguing for a more effective approach to combat this evil, because present policies are patently not succeeding. Persons who have unfortunately been dependent on hard drugs would be better served by medical diversion and treatment than prosecution. The latter all too often entrenches them into an ever downward spiral of crime and/or prostitution.

Of course, drug treatment orders are available in sentencing, but their success is very limited because the element of compulsion that court orders necessarily involve militates against their effectiveness. No addict was ever cured by the stick. It takes huge motivation and the right medical intervention. The former is largely in the hands of the individual. The latter presently consists of prescribing so-called ‘substitutes’ that all too often merely supplement, rather than replace, the use of illegal drugs. For those reasons, hardened users might be better helped if allowed to gain legal access to their drugs as part of a clinical programme towards their eventual rehabilitation.

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* Francis Bennion is an author, constitutional lawyer and draftsman of state constitutions. A former UK Parliamentary Counsel and member of the Oxford University Law Faculty, he is currently a Research Associate of the Oxford University Centre for Socio-Legal Studies.

1. Brian P. Block, ‘Breaking the Habit’, 172 JPN (April 5, 2008), p. 217.

2. Editorial, 172 JPN (March 15, 2008), p. 161.

3. See Patrick Wormald, The First Code of English Law (2005).

4. Case of the King’s Prerogative in Saltpetre (1606) 12 Co. Rep. 12.

5. See, e.g., R v Halliday, ex p Zadig [1917] AC 260; Liversidge v Anderson [1942] AC 206.

6. Reniger v Fogossa (1552) 1 Plowden 1 at p. 13, per Robert Brook arguendo.

7. Daines Barrington, Observations upon the Statutes (2nd edn, 1767) p. 144.

8. 2 Co. Inst. 590.

9. R v Inhabitants of Eastbourne (1803) 4 East 103 at 107.

10. Somerset v Stewart (1772) Lofft. 1–19; 20 St. Tr. 1–82.

11. National Health Service (Amendment) Act 1949 s 17.

12. See 172 JPN (April 12, 2008), pp. 228-231.

13. F A R Bennion, Bennion on Statutory Interpretation (5th edition, 2008), p. 833.

14. Secretary of State for the Home Department v Robb [1995] 1 All ER 677.

15. This applies even where the adult in question is a pregnant female whose foetus may be injured by her refusal of medical treatment: St George’s Healthcare NHS Trust v S [1999] Fam 26.

16. Re T (adult: refusal of medical treatment) [1993] Fam 95 at 115.

17. Re C (adult: refusal of medical treatment) [1994] 1 WLR 290.

18. R (on the application of Middleton) v West Somerset Coroner [2004] UKHL 10, [2004]

19. Human Rights Act 1998 s. 6(6).