A growing market - JRF · A growing market The domestic cultivation of cannabis Mike Hough, Hamish Warburton, Bradley Few, Tiggey May, Lan-Ho Man, John Witton and Paul J. Turnbull

A growing market

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A growing marketThe domestic cultivation of cannabis

Mike Hough, Hamish Warburton, Bradley Few, Tiggey May,Lan-Ho Man, John Witton and Paul J. Turnbull

The Joseph Rowntree Foundation has supported this project as part of its programme of researchand innovative development projects, which it hopes will be of value to policy makers, practitionersand service users. The facts presented and views expressed in this report are, however, those of theauthors and not necessarily those of the Foundation.

Joseph Rowntree Foundation, The Homestead, 40 Water End, York YO30 6WPWebsite: www.jrf.org.uk

Mike Hough is Professor of Social Policy and Director of the Criminal Policy Research Unit at SouthBank University, where Paul J. Turnbull is Deputy Director, Tiggey May is a Senior Research Fellow,and Hamish Warburton and Bradley Few are Research Assistants.

John Witton is a Health Services Research Co-ordinator at the National Addiction Centre at King’sCollege, London, where Lan-Ho Man was a Senior Researcher until she moved to the Home OfficeResearch Development and Statistics Directorate.

© National Addiction Centre 2003

First published 2003 by the Joseph Rowntree Foundation

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Contents

Acknowledgements vii

Summary viii

1 Introduction 1Background 1Defining terms 1Aims and methods 2The structure of the report 3

2 Cannabis cultivation for personal use 4The use of cannabis 4The cannabis market 4Home cultivation 5The mechanics of home growing 5Types of home grower 7

3 Cultivation and the law 12Policing policy on cultivation 13Enforcement in practice 15The reclassification of cannabis 16

4 Cultivation and the United Nations conventions 19The 1961 Convention 19The 1988 Convention 19The ‘room for manoeuvre’: a stocktaking 20The politics of the conventions 21

5 Approaches in other countries 24Switzerland: beyond the UN conventions 24The Netherlands: tolerance through decriminalisation 25Portugal: tolerance and treatment – but not for cultivation 26South Australia: the expiation scheme 27Canada: towards decriminalisation and ‘ticketing’? 28Sweden: approaching zero tolerance 29France: heavy penalties but prosecutorial discretion 30

6 Discussion and conclusions 32Cultivation for personal use 33Non-commercial social cultivation 35Commercial cultivation 37Medical growers 38

Beyond reclassification – reassessing the UN conventions 38Further research and monitoring 40

Notes 41

References 43

vi

We would like to thank our funders, the JosephRowntree Foundation. Without their generositythis study would not have been possible.

A large number of people were verygenerous with their time. Particular thanks aredue to Matthew Atha for letting us haveinformation from the Independent DrugMonitoring Unit annual survey, includingunpublished material for 2002. We are verygrateful to a number of individuals who put usin touch with people willing to talk about theirexperience as cannabis growers. We are alsovery grateful to all those people who respondedto our requests for respondents, and gave uptheir time to talk to us or to completequestionnaires for us.

Acknowledgements

Many people abroad were generous inproviding information on policy and practice intheir country: Paul Christie (South Australia);Benedikt Fischer (Canada); Guillaume Fournier(France); Jörg Jenetzky (Germany); MartinKillias (Switzerland); Maria Moreira (Portugal);Tim Boekhout van Solinge and WillemienHogewind (the Netherlands).

Others to whom we would like to extend ourthanks include Geoff Wootton from HM Customsand Excise who kindly collated statistics relatingto seizures, and officers from the 16 forces whotook time to complete our questionnaire oncannabis cultivation and production.

We are particularly grateful to NicholasDorn, Cindy Fazey and Ruth Runciman for theircomments on earlier drafts.

vii

This report provides a snapshot of domesticcultivation of cannabis in England and Wales. Itpresents the findings of a small-scale,exploratory study. This examined the extent andnature of home cultivation in England andWales, and the enforcement of the law inrelation to cultivation. It also examined theimplications of the United Nations drugconventions, and the law in seven othercountries. The study largely draws on deskresearch, official statistics and a survey of policeforces, but it also incorporates the views andexperiences of a sample of home cultivatorswho agreed to be interviewed or to complete aquestionnaire.

Cannabis cultivation raises some importantpolicy issues. The Home Secretary hasannounced that he proposes to reclassifycannabis as a Class C drug, treating thepossession of cannabis as a less serious offencethan hitherto. Originally it was thought that thiswould make possession of cannabis a non-arrestable offence. However, at the time ofwriting the government was planning to retainthe power of arrest for possession offences,issuing administrative guidance to ensure thatthe police gave on-the-spot warnings in all butthe most serious of cases. On the other hand,there will be tougher action against cannabisdealers. Nothing has been said about the small-scale cultivation of cannabis for personal useand use with friends. It is unclear whether thiswill be treated as dealing or as possession. If thegovernment’s strategy is to free up resources tofocus on more harmful drugs, such as heroinand crack, then there is a strong case for the lawtreating small-scale cultivation as a variant ofpossession.

Cannabis use and cultivation in England

and Wales

Cannabis use is widespread in England andWales. At least three million people used it in2001; around a quarter of young adults (aged 16to 29) did so. Traditionally cannabis has beenimported into the country by drug traffickers,but rapid changes are occurring. There is noprecise information on the extent of homecultivation, but it is clear that it has increasedsteeply over the past decade. Cannabiscultivated in England and Wales may nowaccount for half of all consumption, and muchof this domestically cultivated cannabis will behome-grown for personal use. This trend callsinto question any policy that is premised onsharp distinctions between cannabis users onthe one hand and suppliers on the other.

Cannabis cultivators may be charged undersection 4 (production) or section 6 (cultivation)of the Misuse of Drugs Act 1971 (MDA). Bothsections carry a maximum sentence of 14 years’imprisonment or an unlimited fine. The DrugTrafficking Act 1994 renders the section 4offence of production a trafficking offence,which means that anyone convicted ofproduction is liable to asset confiscation.Furthermore, under the provisions of the Crime(Sentences) Act 1997, anyone who has twoprevious trafficking convictions could face amandatory seven-year prison sentence.

Most cultivators grow cannabis to besmoked in herbal form, and the production ofcannabis resin is rare. Cannabis seeds can bepurchased from UK-based seed companies andgrowing equipment is readily available fromgardening outlets and ‘hydroponic growshops’.We found that cultivators used a variety of

Summary

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Summary

growing techniques, which tended to reflectdifferences in experience, knowledge andtechnical expertise. The actual yield from acannabis plant is highly variable.

The home growers in our sample began togrow cannabis mainly to ensure quality ofproduct, to save money or as a means ofavoiding contact with drug sellers. They fell intofive groups:

• the sole-use grower – cultivating cannabisas a money-saving hobby, for theirpersonal use and use with friends

• the medical grower – motivated mainlyby the perceived therapeutic values ofcannabis to those with medical conditions

• the social grower – growing to ensure asupply of good quality and affordablecannabis for themselves and friends

• the social/commercial grower – thosewho grew for themselves and friends, atleast in part to supply an income

• the commercial grower – growing tomake money, and selling to any potentialcustomer.

Enforcement

Home Office statistics do not distinguishbetween production and cultivation offences.Both are recorded as production. There were1,960 cannabis production offences in the UKduring 2000. Of these offenders, just under aquarter (458) received a police caution and theremainder (1,502) were dealt with in court; justunder a fifth (243) received a custodial sentence.The number of persons cautioned and convicted

for cannabis production was the lowest for tenyears, having peaked in 1995. Seizures ofcannabis plants also peaked in 1995 and,mirroring production offences, recordedseizures are now at their lowest since 1992.These trends are likely to reflect enforcementactivity, rather than levels of involvement incultivation.

Our survey of police forces indicatedconsiderable variation in decisions aboutcharging or cautioning cultivators, and indecisions about charging with production orcultivation offences. Decisions were generallytaken on a case-by-case basis, with extensivediscretion exercised by arresting officers andcustody sergeants. The survey suggests that fewforces are following the guidance issued by theAssociation of Chief Police Officers (ACPO),and that operational and custody officers arelargely unaware of this guidance.

The United Nations conventions

International treaties impose variousrequirements on signatory countries in relationto home cultivation. The United Nations 1961Single Convention on Narcotics and the UnitedNations 1988 Vienna Convention against IllicitTraffic in Narcotic Drugs and PsychotropicSubstances are the most relevant ones. The latterformalises the requirement that each signatorycountry makes both possession and cultivationof cannabis criminal offences – provided thatthis is consistent with the country’sconstitutional principles. Although possessionand cultivation must be criminal offences, theconventions do not require that offenders areactually dealt with under the criminal law. The

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A growing market

1988 Convention permits the use ofadministrative penalties for minor offences ofcultivation for personal use. It also allowscultivation for personal use to be dealt with bymeans other than conviction or punishment,including interventions such as ‘treatment,counselling, education’.

Approaches in seven other countries

Several – mainly European – developedcountries were selected to illustrate a range oflegislative approaches to offences of cannabiscultivation.

• Some countries treat cultivation forpersonal use on a par with possession.

• Some have decriminalised – or plan todecriminalise – cultivation for personaluse.

• Some countries impose administrativepenalties (ticketing offenders, orimposing fixed-penalty fines) whilstothers offer warnings, counselling ortreatment.

• The treatment of social and social/commercial growers varies widely.

• One of the seven countries – Switzerland– is actively considering a system ofgovernmental regulation of cultivationthat verges on legalisation.

Dealing with cultivation

It is unclear whether or how the new governmentpolicy towards cannabis will affect homegrowers. Given the growing scale of domestic

cultivation, there are important policy choices tobe made about the sorts of cultivation thatshould be treated as trafficking offences andthose that should be treated akin to possession.These decisions turn on whether the policyobjective is to eradicate illicit drug markets or toensure that they take the least harmful form. Inour view the latter is more realistic.

The ‘gateway’ or ‘stepping stone’ theory thatcannabis use leads on to riskier forms of drugtaking is largely unsupported by the evidence(see Police Foundation, 2000; Witton, 2001a).However, it seems likely that when cannabismarkets and Class A markets are closelyintertwined, cannabis sellers may well pressuretheir customers to buy other sorts of drug. Thuscannabis could well prove a gateway to riskierdrugs if the handling of markets weremismanaged by enforcement agencies. The aimof policy in this field should be to maximise theseparation of cannabis markets from those forheroin and crack. The government’s proposalsto ‘crack down’ on cannabis dealers byincreasing the maximum custodial penalty forcannabis supply to 14 years is likely to have theopposite effect.

If the government were to treat small-scalehome cultivation as a variant of possession,there would be two consequences: first, manycannabis users would choose to cultivate inpreference to using a distribution systempopulated by criminal entrepreneurs. Second,the low cost of home growing would destabilisethis criminalised distribution system. With areduced return on investment in cannabis,criminal entrepreneurs might abandon themarket. How might such changes operate inpractice? There are four sets of issues toconsider.

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Summary

Cultivation for personal use

One issue is the seeming anomaly ofdistinguishing between cultivation of a cannabisplant for personal use and the possession ofcannabis from the same plant once it has beenharvested. Simply to achieve coherence andconsistency in the law there are persuasivegrounds for treating cultivation for personal useon a par with possession. However, homecultivation also insulates users from criminalsuppliers, and this benefit provides furtherreasons for differentiating between cultivationfor personal use and other forms of cultivation,treating the former as a form of possession.

This would mean that when cannabis isreclassified as a Class C drug, the police wouldonly rarely arrest those found cultivatingcannabis for personal use, but would usuallywarn them on the spot, confiscating the plants.If legislation is enacted to retain police powersof arrest for possession offences, then all thatwould be required would be to issue guidanceto the police about cultivation in parallel withthat relating to possession. Parliament may yetmake possession of cannabis completely non-arrestable. If so, there would be a strong case forcreating a new offence of cultivation forpersonal use. The offence would mirror that ofpossession by having a maximum sentence oftwo years, and thus be non-arrestable.

Either way, law or practice would requiresome criterion for defining cultivation forpersonal use. There are a number of possibleapproaches:

• specifying a weight below which anycultivated cannabis is regarded as beingfor personal use

• specifying a maximum number of plantsthat would be deemed to be for personaluse

• specifying a variable maximum numberof plants, which would be dependent onthe estimated yield of the plants

• leaving decisions about personal use tothe discretion of the police, allowing suchdecisions to be tested, if necessary, incourt.

Any arbitrary threshold will yield inequitiesand inconsistencies. Nevertheless theseinconsistencies are probably preferable to anapproach that is dependent on police discretion,which will inevitably lack transparency. TheCanadian proposals set a fairly low threshold of30 grams (or just over an ounce), and anyamounts below this level will be deemed to befor personal use. The South Australian expiationscheme originally set a higher threshold, at tenplants.

If cultivation for personal use is treated akinto possession, there are consequentialimplications for the handling of ‘premises’offences under section 8 of the MDA. If on-the-spot warnings for small-scale home growingwere to become the norm, it would be perverseto treat anyone who had allowed their premisesto be used for the offence to be dealt with moreseverely than the grower.

Non-commercial social cultivation

Those who cultivate cannabis for their own andtheir friends’ use on a non-commercial basis area significant and important group for drugpolicy. A more careful distinction in lawbetween social and commercial cultivation

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A growing market

could serve to drive a wedge between asignificant proportion of users and thecriminally sophisticated suppliers who mightotherwise sell them cannabis – and other drugs.If the government accepts this argument, thereare two possible policy options:

• creating offences of social supply and ofsocial cultivation of cannabis. Socialsupply would be defined as the non-commercial distribution of cannabis tonon-strangers

• leaving the legislation unchanged, butissuing criminal justice agencies andcourts with guidance on appropriatecharges and sentences for social or not-for-profit cultivation offences.

Differentiating between those who cultivateon a not-for-profit basis and commercialgrowers presents problems similar to those indefining cultivation for personal use. Athreshold could again be set in terms of numberof plants or weight, or the authorities couldmake decisions on a case-by-case basis. As withdefining personal possession, crude butobjective yardsticks are probably preferable todiscretionary decision-making by the police andCrown Prosecution Services (CPS). Sanctions fornot-for-profit, social cultivation might rangefrom a small fine for an offence that fell justabove the threshold for personal use to a muchlarger fine for an offence falling just below thethreshold for commercial cultivation.

Commercial cultivation

The government’s proposals in relation tocannabis possession do not carry implicationsfor commercial cultivation in the direct way that

they do for personal and social cultivation.Indeed, under clause 248 of the Criminal JusticeBill, it is proposed to raise the maximumpenalty for Class C trafficking offences to 14years – the same as for Class B. The intention isclearly that a commercial cultivator chargedwith production will be treated no differentlyafter reclassification.

Whilst the government’s tough stancetowards cannabis dealing could be seen as thepolitical price to be paid for the policy of on-the-spot warnings for possession, it may also haveunwanted consequences. Cracking down ondealers, of whom an increasing number will becommercial cultivators, will drive out the risk-averse, leaving the distribution system to bepeopled by more criminal and risk-tolerantoperators. This may bring about a greaterconvergence of Class A and cannabis markets.By contrast, a pragmatic policy would be totreat cannabis dealers and commercial growersless like suppliers of Class A drugs, not more likethem – and would leave the maximumsentences for trafficking in Class C drugsunchanged.

Medical cultivation

Cannabis-based drugs are currently undergoingclinical trials. In the intervening period, andprobably thereafter, significant numbers ofpeople will continue to cultivate cannabis torelieve their own or others’ medical symptoms.These cultivators run the same risks of arrestand prosecution as non-medical cultivators.There is much to be said for the currentCanadian system for medical cultivation anduse of cannabis. Individuals can obtain‘authorisation to possess’ cannabis for medicalpurposes, and can possess a maximum quantity

xii

Summary

equal to a 30-day treatment supply specified bya medical practitioner. They or theirrepresentative can apply for a licence to grow aspecified amount of cannabis.

Beyond reclassification: reassessing the UN

conventions

The aim of this report has been to examine theimplications of the planned change to the lawson cannabis for offences of cultivation. If thegovernment were to bring the treatment ofcultivation for personal use into line with theamended law on possession, there would be nobreach of the limits imposed by the UN drugconventions.

These changes would place Britain in linewith practice in many other developedcountries, where a more pragmatic approach tothe control of cannabis use has also beenadopted. Some countries are now beginning tomove beyond the UN conventions – Portugal isremoving possession offences from the criminallaw, for example, and Switzerland is proposingvirtual legalisation and regulation. These moreradical policies have been left unexamined bythis report as policy options for Britain simplybecause it is most unlikely that the governmentwill be prepared to challenge the conventions.

If any political will to move further awayfrom prohibition develops, findings from thisstudy suggest that there are three ways ofhandling the constraints of the conventions. One

would be to ‘denounce’ or withdraw from theconventions. This is a legal possibility, but notpractical politics for Britain. This country has along track record in encouraging compliancewith a wide range of UN conventions, and avolte-face on drug issues would be politicallyunacceptable. There are also more recent andspecific factors, relating to the centrality of UNmandates in pursuing the ‘war on terror’.

Another possibility is to explore the otheravenues within the conventions which allow acountry to deviate from their requirementswhere these conflict with its constitutionalprinciples. Whilst this strategy may be practicalpolitics for some countries, critics will ask whyit has taken almost half a century to discoverthat the UN conventions conflict with aconstitutional principle. The argument isparticularly difficult to deploy for countries likeBritain, where constitutional principles are notformalised or codified to any significant degree.

The final option would be to encourage areview of the UN conventions. These wereoriginally developed at a time when illicit druguse remained at low levels, and when the fullhuman and social costs of both drug misuse andthe prohibition of drug misuse had yet toemerge. As increasing numbers of countriesdevelop approaches which are at odds with thespirit of the conventions, a review would seemtimely and necessary. The United NationsGeneral Assembly Special Sessions (UNGASS)provides the opportunity for this.

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1

Cannabis has been much in the news over thelast two years. Most of the British debate hasbeen about how to deal with the possession ofcannabis, on the one hand, and its supply, onthe other. Some people have advocatedtolerance of possession for personal use,coupled with tougher action against suppliers.Others have argued for liberalisation of the lawsin relation to both possession and supply.Throughout this debate, issues relating tocultivation for personal use have been largelyignored. However, the policy questions posedby cultivation are important ones. The rapidgrowth in the home-growing market is one ofthe key factors limiting governmental capacityto contain cannabis use. This study assemblessome factual information to help inform thedevelopment of policy on cultivation.

Background

Twenty-five years ago a much smallerproportion of the British population had anyexperience of cannabis, and the vast majority ofthese will have smoked herbal cannabis orcannabis resin imported from Morocco,Lebanon, Afghanistan or other producercountries. Since then, the number of users hasrisen sharply. The technology for growingcannabis in temperate climates has also changedin two significant ways. Stronger strains havebeen developed, and the technology forgrowing cannabis indoors with the use of ultra-violet lights and hydroponic techniques hasbeen refined. As a result, a large minority, oreven a majority, of cannabis in this country isnow domestically produced. Much of it iscultivated on a small scale, for personal use orfor use with friends.

Policy statements on cannabis have beensilent on questions of cultivation. The HomeSecretary’s decision to reclassify cannabis as aClass C drug was announced in July 2002 aspart of a package: greater lenience in relation topossession would accompany toughercrackdowns on suppliers. Little considerationappears to have been given to the status ofhome producers who grow for their own andtheir friends’ use. Broadly speaking, policy hastwo options: small-scale cultivation can betreated as a form of supply – attracting thecrackdowns intended for any dealer; or else itcan be regarded as a variant of possession – tobe tolerated to the same degree. Policy decisionswill depend partly on the empirical realities ofhome production, and partly on the externalconstraints imposed, for example byinternational treaties and conventions. Thisreport aims to provide a snapshot of homecultivation in England and Wales, to describethe implications of the United Nationsconventions on the control of illicit drugs and tosummarise approaches taken in various othercountries.

Defining terms

British legislation at present does notdifferentiate between different forms ofcultivation; for the purposes of this report,however, it is helpful to make some distinctions.Throughout this report ‘domestically cultivated’cannabis is that which is grown in the UnitedKingdom. It is to be distinguished not only fromcannabis imported from countries with a longtradition of cultivation, but also from cannabisgrown in the Netherlands and other Europeancountries. The small-scale cultivation of

1 Introduction

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A growing market

cannabis for personal use or use with friends isreferred to as ‘home cultivation’, by analogywith home-brewed alcohol. A minority ofcannabis is home-grown exclusively for personaluse. Home growers are likely to share theirproduce, give it away, or sell any that is surplusto their own needs.

At the other end of the spectrum, somedomestic – i.e. UK-based – cultivation is doneprimarily to make money. (Commercialcultivators are likely to use their own produce,just as English commercial wine-growers maydrink their own wine.) There is no hard-and-fastcut-off point between home growing andcommercial production, though we wouldregard someone as a commercial grower whenthe majority of their produce was sold. As weshall see, the distinction is blurred partlybecause some home growers may evolve intocommercial ones, and commercial ones mayrevert to being home growers. Chapter 2 offers amore detailed classification of types ofcultivator.

In the latter part of the report, we makefrequent use of the term ‘decriminalisation’. Weuse it to refer to any measures that retainpossession or cultivation as offences, but avoidcriminal prosecution and punishment. Differentcountries have decriminalised in different ways.Some have downgraded the legal status ofoffences, to make them administrative ratherthan criminal offences. Others have retained thestatus of criminal offence whilst allowing foradministrative sanctions to be imposed. Yetothers have retained the criminal offence ontheir statute books, but issued guidance topolice or prosecutors to avoid enforcement inspecified circumstances. Confusingly somecommentators use decriminalisation as an

equivalent for legalisation – i.e. removing theoffence from both the administrative and thecriminal law. Others, mainly Europeancommentators, tend to refer to decriminalisation(as we have defined it) as ‘depenalisation’, toemphasise that no penalties are imposed underthe criminal law, even if the offence remains acriminal offence. The term reflects the fact thatpenal law and criminal law are synonyms inmany European systems.

Aims and methods

This study is small-scale and exploratory. Itsmain aims are to give some indication of therole of home cultivation in the cannabisdistribution process in England and Wales,1 todescribe the law – in principle and in practice –as it applies to cultivation, to examine theconstraints on domestic policy imposed by theUnited Nations conventions on illicit drugs, andto examine practice in other countries.

Given the dearth of previous research on thetopic, we have been opportunistic andpragmatic in following up promising leadsabout the nature of home cultivation. Werecruited a small sample of 37 cannabiscultivators primarily using the Internet. Wecontacted a number of cannabis-related websiteswhich posted information about our study ontheir site. Growers who contacted us filled inand returned semi-structured self-completionquestionnaires. Two questionnaires werecompleted as face-to-face interviews. Given thesize of our sample and the way in which it wasassembled, we regard the findings as indicativerather than definitive. The sample was self-selected; respondents were cannabisenthusiasts, and many were passionate about

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Introduction

cultivation and believed cannabis should belegalised.

To collect information on currentenforcement practice we identified a drugsquad, drug liaison or drug strategy officer ineach of the 43 police forces in England andWales. We attempted to make contact with thatofficer, to ask whether they would be willing tocomplete a short questionnaire aboutenforcement practice in their force. Some werecompleted over the telephone, others were self-completed and returned by fax or email. Wereceived 16 completed questionnaires.

Finally, we assembled information aboutlaw, policy and practice in other countriesthrough library and Internet searches, as well ascontacting local experts who were able to speakwith authority on the situation in their country.

The structure of the report

Chapter 2 provides a snapshot of domesticcultivation and home cultivation in England

and Wales, drawing largely on the informationgiven to us by growers and by police officers.Chapter 3 covers cultivation and the law as itapplies to England and Wales. Chapter 4considers the implications of the United Nationsconventions on illicit drugs as they affectcultivation. Chapter 5 describes law andpractice in various developed countries –mainly European, though we have includedCanada and Australia. Chapter 6 summariseskey findings and draws out implications forpolicy.

Debate about drugs raises strong emotions,and we anticipate that parts of this report willbe misconstrued or misrepresented by thosewho want tougher enforcement of the druglaws. We should stress at the outset thatcannabis use carries a variety of risks, and thatwe are concerned to find the best ways ofcontaining these risks. The fact that we havedescribed home growing in some detail shouldnot be construed in any way as an endorsementof the cultivation or use of cannabis.

4

This chapter provides a snapshot ofdomestically cultivated cannabis (cannabiswhich is cultivated in England and Wales) forpersonal use at the start of the twenty-firstcentury. To set the context, it summarises whatis known about the extent of use and about thenature of cannabis markets. It then assembleswhat information is available about homegrowing for personal use, and discusses thecharacteristics of home producers.

The use of cannabis

Cannabis is the most commonly used illicit drugin England and Wales. The best source ofinformation on the extent of use is the BritishCrime Survey (BCS). According to the 2001/02BCS just under half of the population inEngland and Wales aged 16–29 have usedcannabis at some stage in their lives and justunder a quarter had done so in the previousyear (see Aust et al., 2002). The 2000 BCSindicates that there are over two millioncannabis users annually in this age group (16–29) and around four million users aged 16–59(Ramsay et al., 2001). Levels of use haveundoubtedly increased year on year since the1980s, though improvements in methodologymean that the BCS cannot quantify the trendwith any precision (Mott and Mirlees-Black,1995; Ramsay and Partridge, 1999).

The cannabis market

Historically the cannabis market relied verylargely on importation from producer countries.In the past cannabis resin was more readilyavailable than grass (or herbal cannabis), andMorocco was regarded as the biggest source

country. Many of those involved in supply were‘amateurs’, whose motivation was at least inpart ideological, and associated with the valuesof the ‘counterculture’ of the 1960s and early1970s. Dorn et al. (1992) have described how thedistribution system thereafter became colonisedby more conventional criminal entrepreneurs,attracted by the scale of the potential profits.

The average UK cost of an ounce of cannabisis £82, £85 or £145 dependent on whether it isherbal, resin, or ‘skunk’, according to figuresgathered by the police and collated by theHome Office (Corkery, 2002b). The standardcost for an eighth of an ounce (equivalent toabout 3.5 grams) is £15, although ‘skunk’ ismore expensive.1

In an illicit market such as that for cannabisit is inevitable that the boundaries between‘wholesale’ and ‘retail’ distribution aresomewhat blurred. In an analysis of drugmarkets amongst young people in the NorthWest, Parker (2000) describes how people ‘getsorted’ through the help of people in their socialnetworks, who are better able than themselvesto reach reliable sources of supply. In otherwords, for a large proportion of illicit drugusers, the retail supplier is in fact a friend, or afriend of a friend, whose motivation is as muchaltruistic as commercial – though the transactionmay subsidise the seller’s own drug purchases.Such sellers would be regarded as drug dealersneither by themselves nor their customers.

This distribution process serves to buffer themajority of users from criminal entrepreneurs.However, an unknown proportion of retailpurchases must necessarily be made fromcommercially motivated people who moreaccurately fit the stereotype of a ‘dealer’. Inother words, their interest would be in retaining

2 Cannabis cultivation for personal use

5

Cannabis cultivation for personal use

their customer base and maximising their salesand profits. Such operators might well have aninterest in promoting sales of other drugsbesides cannabis, such as heroin or cocaine.

Home cultivation

Over the last ten years domestic cultivation ofcannabis has started to change the shape of thecannabis market, and home cultivation forpersonal use has come to account for asignificant proportion of consumption. Theplethora of ‘Grow your own’ guides, the readyavailability of a wide range of cannabis seedsand growing equipment through the Internetand other outlets, and the publishing success ofregular magazines for the cannabis user allillustrate the widespread interest in homecultivation. The publication of these magazinesand the sale of paraphernalia are legal, providedthat there is no criminal intent on the part ofthose involved.

It is hard to say precisely what share of themarket home cultivation accounts for. The littleinformation we do have comes from the regularsurveys of cannabis users carried out by theIndependent Drug Monitoring Unit (IDMU).Since 1984, the IDMU has been distributingquestionnaires to regular cannabis users atmusic festivals and has provided a valuablepicture of drug consumption patterns, pricesand markets in the UK. Although lacking thefiner points of sample representativeness, theseregular surveys are probably a reliablebarometer of gross changes in the UK drugmarket.

The findings from the most recentlypublished survey for 2001 found thatdomestically cultivated cannabis was now

taking a dominating role in the UK cannabismarket and made up nearly half of UK cannabisconsumption. For the first time domesticallycultivated cannabis had overtaken Moroccan(soap-bar2) resin, hitherto the major product inthe cannabis market. This compares with the1984 survey’s finding that just 10 per cent ofrespondents used home-grown (IDMU, 2002).The IDMU surveys do not differentiate betweenhome-grown cannabis cultivated on acommercial scale and that which is cultivatedsolely for the use of the grower and their socialnetwork.

The mechanics of home growing

Some home growing is done with onlyprimitive horticultural skill – planting a seed inthe ground and letting it grow. However, mostof the home-grown cannabis in England andWales is cultivated indoors. Growing indoorsenables the experienced cultivator to control thevariety, quality and quantity of their produce.From the perspective of the grower, as well asproviding a controlled, secure and privateenvironment, it also decreases the likelihood ofpolice detection and theft. The vast majority ofhome growers grow cannabis to be smoked inherbal form; producing cannabis resin is rare inEngland and Wales.

Most growers initially grow from seed,although many on subsequent harvestspropagate cannabis by taking cuttings, oncethey are satisfied with a particular strain. Aswill be discussed in Chapter 3, seed purchase islegal in Britain,3 and UK-based seed companiesimport different varieties from seed breederslocated mainly in Holland, Switzerland, Spain,South Africa, Australia and Canada. Depending

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A growing market

on the variety, prices can range from between £7and £90 for ten seeds. The equipment requiredfor indoor growing is also readily available fromgardening outlets and other ‘hydroponicgrowshops’. Basic starter kits can be bought foraround £150. The more technically adept mayalso use additional equipment to control theodour of the plant, the pH, humidity andtemperature.

Cannabis can be cultivated usinghydroponics (produced in water, without usingsoil as a medium) or organically. Organiccultivators use natural fertilisers and soilmixtures, whereas hydroponic cultivators usechemical fertilisers, nutrients and artificialrooting systems. Between 1994 and 2000, theIDMU’s surveys show that the proportion ofgrowers using hydroponic cultivation systemstrebled from 6 per cent to 19 per cent, and use ofhigh-power lighting increased from 17 per centto 41 per cent while natural light usage fell from77 per cent to 56 per cent. Over the same periodthe proportion of growers using seeds found inimported cannabis bush4 that they had boughtfell from 49 per cent to 21 per cent (probablyreflecting changing market preferences), whilethe proportion using ‘pedigree’ seeds rose from35 per cent to 57 per cent. In 2000, growerstended to use more lights, with an average of 4.5lights with an average total wattage of 1067W,compared to just under two lights with totalwattage of 421W in 1999. This increasing high-tech trend was also reflected in the quantitygrown: in 1998 growers produced an average of12 plants with a total yield of 189 grams; in 2000the figure was 23 plants with an average yield of462 grams.

Our sample of growers (n = 37) was splitequally between hydroponic and organic

cultivators. They employed a range ofhorticultural techniques, which tended to reflecttheir experience, knowledge and level oftechnical expertise. Some employed a simpleapproach, for example:

I just grew the seeds in a grow-bag. Then Imoved them into pots when they got bigger.They grew in a conservatory. The only thing I didwas to add tomato fertiliser every now and then.

Others showed a much greater level oftechnical proficiency. Some cultivators couldspecify the flowering cycle of different strains ofcannabis plants and the exact pH and carbondioxide levels which would maximise growthand yield in the shortest possible time. In sum,they possessed an encyclopaedic knowledge ofcultivating cannabis, which the most avidhorticulturalist would envy:

If you plant a batch of seeds, after about sixweeks they should be about one foot high.Cuttings are then taken and placed into smallerpots and kept on a specified light/dark cycle.Once the plants have successfully rooted thecycle can be changed and this will force theplants to flower. You can then tell which plantsare male and which are female. Take furthercuttings from the female plants and again placethem in smaller pots. Once the second batch offemale plants have successfully rooted, they areplaced on a flowering cycle. They will then flowerwithin five to 12 weeks depending on the strain. Itend to stagger the flowering of the plants andnormally have about 20 plants growing at any onetime.

Potential yields reported by respondentsranged from a quarter of an ounce to ten ouncesper plant. One grower reported having many

7


small plants with little individual yield. Anotherrespondent reported having four plants thatyielded between seven and ten ounces a plant.Many respondents commented that thepotential yield of a plant is dependent on manyfactors. These included the plant strain, size, thetype of equipment used and the method ofgrowing. For example:

You can get an ounce from a plant grown to onefoot, or a kilo from a plant grown to six feet. Adecent grower can quite easily get one gram ofdried flower head per watt of lighting used.

Twenty plants under the stairs will hardlycompete with one 12 foot monster outside.

Given all the variables involved, it is difficultto generalise about the length of time or numberof plants it takes to grow a specific yield.Cuttings from a single mother plant will beharvestable between seven and 14 weeks afterrooting if they are placed immediately on aflowering cycle. They will grow to a height ofone to two feet, and could each yield betweenhalf an ounce and three ounces. If ten cuttingsare grown, the total harvest will be about 15ounces. A staggered cycle of cultivation, withsets of ten cuttings rooted every five weeks,would provide the grower with roughly twoounces a week. Obviously, if the plants aregrown for longer before their flowering cycle isinitiated, the time taken to complete this processwill be increased, but the overall yield would belarger too.

Very little cannabis resin or hashish isdomestically produced. The process is labour-and resource-intensive. Creating cannabis resininvolves the removal of the glandular trichomesor resins of a flowering plant that contain

tetrahydrocannabinol (THC). Glandulartrichomes make up less than 10 per cent of theherbal flowers or buds of a cannabis plant.Resin can be produced in a number of ways:cold water separation techniques, butane oilextraction, passive trichome collection and‘scuffing’ or screening. Most cannabis growershave what they call ‘sugar trim material’, a by-product of cultivating herbal cannabis. This canbe retained for hashish production, as itcontains a high percentage of resin.

One of our respondents had attempted theprocess. He reported that he had hung a largenumber of flowering plants to dry for ten days.He then extracted the THC using the screeningmethod. The resulting powder was then heatedup and bound together to form a resin. Thisresin, he claimed, was completely free ofadulterants, unlike much of the resin availablefrom the illegal market.

Types of home grower

Our sample of 37 growers were mainly in theirtwenties or thirties, and all except two weremen. Most had jobs, or else were students. Somehad had lengthy careers as cannabis cultivators– in one case for 25 years – though almost half ofour sample had been growing for two years orless.

Motivations for growing varied. Five of ourrespondents were clearly growing on acommercial scale, with profit as the mainmotive. Most of the remainder shared theirproduce with, or sold it to, others, though ninegrew simply for their own use. We havegrouped the sample into the following fivetypes:

8

A growing market

• the sole-use grower (n = 9) – cultivatingcannabis as a money-saving hobby, forpersonal consumption5 only

• the medical grower (n = 3) – motivatedmainly by the perceived therapeutic valueof cannabis to those with medicalconditions

• the social grower (n = 10) – growing toensure a supply of good quality cannabisfor themselves and friends

• the social/commercial grower (n = 10) –those who grew for themselves andfriends, at least in part to supplementtheir income

• the commercial grower (n = 5) – growingto make money, and selling to anypotential customer.

This classification is little more than anelaboration of one made by the Court of Appealin 1999 (R v. Lawrence Dibden,6 documented in2000). In upholding a sentence of 21 monthspassed on a person whom we would regard as a‘social/commercial grower’, the judgescommented that there were four sorts ofcultivator: those who grew cannabis for theirown use; those who grew for themselves and forfriends at no charge; those who grew cannabisto supply to friends for money; and those whogrew in massive quantities for ‘all and sundry’.We have simply added a fifth category, that ofmedical grower.

There were common themes in the reasonsgiven for starting home cultivation. Two-thirdsmentioned the poor quality of the cannabis resinthat they had previously bought, and also therisks associated with adulterated produce. Halfmentioned the high prices charged by dealers.

The following quotes give a flavour of thesereasons:

I enjoyed using cannabis in Amsterdam but didn’twant to get poisoned by soap bar in this country.

The reason I started to cultivate was primarilybecause of the high price and low quality ofcannabis that is readily available from commercialdealers where I live.

The quality of cannabis widely available locally isof very poor quality and contains all sorts of‘unknown ingredients’.

I started for two reasons, one to escape usingdealers and the black market, which increases therisks of being arrested; also because I discoveredjust how many contaminants were containedwithin soap bar.

A third mentioned the desire to avoidcontact with criminally involved dealers; somementioned that they did not wish to subsidisedealers who were dealing in Class A drugs andinvolved in organised crime. Others referred tothe risk of arrest associated with buying orcollecting cannabis from dealers.

The sample varied according to both thesophistication of their growing techniques andthe scale of their operation. Some small-scalegrowers were as sophisticated as volumeproducers. Figure 1 shows the average numberof plants under cultivation at any one time foreach type of grower.

Sole-use growers

Our nine ‘sole-use’ growers had between oneand two dozen plants at any one time. Sevengrew organically and two used hydroponics.Most had been growing for one or two years.They grew their own cannabis to secure good

9


quality, to save money and to avoid contact withdealers and with the criminal justice system. Anequally important reason was the enjoyment.For example:

I was interested in starting a new hobby which Ivery quickly realised was a very rewarding one.

Medical growers

Medical growers typically want to secure acheap and dependable supply of high-qualitycannabis with little legal risk. We located fivecannabis growers who supplied cannabis tomedical users. We classified three of these asmedical growers, as this was their main reasonfor growing. (The other two said that theywould continue to grow even if they did notsupply to medical users.) One of the medicalgrowers has a wife with multiple sclerosis (MS)and has now been cultivating for over eightyears. More recently he has been supplyingcannabis to other MS sufferers and states hewould not sell to anyone else. Both medical

growers had been charged with various offencesrelating to possession and supply of cannabis.

Social growers

We identified ten people as social growers. Theirmotivation for growing was similar to that ofsole-use growers, but with the added dimensionof social rewards. They either gave cannabis totheir friends or charged a nominal price to covertheir expenses. Like sole-use growers, theyseemed to derive a great deal of satisfactionfrom the process:

… it has become a pleasurable pastime that hasmany rewards and results that you can be proudof. It is very satisfying to produce a qualityproduct.

Consistent with Weisheit’s (1991) study ofcannabis growers, our social growers tooksatisfaction from the status they achieved withintheir social networks of producing a high-quality and highly valued product.

Figure 1 Average number of plants under cultivation, by type of grower

0

10

20

30

40

50

Sole use Medical Social Social/commercial

Commercial

Mea

n nu

mbe

r of p

lant

s

Typology

10

A growing market

Social/commercial growers

Ten of our respondents grew cannabis for profit,but restricted sales to their social networks.Their orientation towards cultivation wassimilar to that of social growers, and most hadgraduated from being social suppliers. Now,however, their main motivation was tosupplement their incomes. One saw cultivationas a means of covering rent payments. They hadbetween two and 100 plants under cultivation atany one time, half using hydroponics and halfusing organic methods.

Commercial growers

We classified five respondents as commercialgrowers. They would supply cannabis toanyone who presented themselves as a

customer. Rather than buying cannabis from‘wholesale suppliers’, they cultivated their owncrop as this guaranteed them a high-qualitypotent product as well as consistency of supply.This allowed them to charge premium prices.All of them used hydroponics; like socialgrowers they staggered their growing cycles.The smallest-scale commercial grower generallyhad two plants under cultivation; the mostactive had over a hundred. One grew between40 and 90 plants at any one time. He originallystarted to cultivate to supplement his income,but then decided that he could retire from his‘day-job’, which he found stressful. He said thathe earns about £2,500 a month, including salesto medical users at a ‘reasonable cost’.

Case study 1 Roger – a social supplier

Roger, now in his late thirties, first grew cannabis when he was 14. He progressively developedhis growing technique over time and now uses sophisticated growing methods to cultivate avariety of strains hydroponically and organically.

By cultivating cannabis himself, he is able to support his own use, which is currently betweenten and 20 spliffs a day. Any excess he will either give away or sell at cost price to friends andmedical users:

I’ve made money on it in the sense that like, I’ve sold it on to people, I give quite a lot away too, I’ve somefriends who have got MS and other diseases, I’ve four of them, they get it more-or-less free, but I don’t growweed to make a commercial profit out of it. On a harvest I might end up with £300 in cash, which in the enddoesn’t really cover everything, once I’ve paid for the electricity and everything. It doesn’t cover the fuel or otherstuff, so it’s not a profit business for me.

He also expressed great pleasure and took pride in what he had grown. Discussing hispreference for organically grown cannabis, he states: ‘it’s more the bouquet, the aroma, the tasteof it, rather than the psychedelic effect of it all … it’s just like wine sampling, but it’s withweed’. He took pride in what he had produced, asserting that it was the best in East London.He considered himself a connoisseur of cannabis. Last Christmas he met with friends to sampleeach other’s cannabis, which was especially harvested for the occasion.

11


Case study 2 Jason – an ex-commercial grower

Jason is 31 and has been cultivating for the last six years. At times he has grown over a hundredplants; however, he does not consider himself a large-scale producer, rather a cultivator. Hestarted to cultivate at the age of 25 after visiting Amsterdam on holiday. He had what hedescribed as a ‘half-arsed’ attempt at growing and produced a few weedy plants. Jason thencontacted a friend he knew who grew professionally and he borrowed some lights from him.

Initially, I began growing in partnership with a friend who had grown before. The reasons were mainly because,at that time, herbal cannabis was very difficult to obtain, and I was beginning to learn about how bad ‘soap bar’was for you. The other consideration was obviously financial. Not only could my friend and myself keepourselves in herbal cannabis, but we could also give ourselves a nice financial lift, as we were both unemployedat the time. Our first crop brought in around 1.5 kilos of flower heads, which worked out at roughly £3,000 each.

This continued for a while until Jason found himself in a ‘bit of financial trouble. I had becomea bit of a pill-head’. He spent New Year 2000 in Amsterdam and decided to make some moneyfrom cultivating, to sort out his financial worries. Jason and a friend rented a flat specifically togrow and began to cultivate 250 plants. He had become highly professional at cultivating andthrough both research and trial and error he was growing ‘some particularly nice weed’.Unfortunately, Jason could not control the smell of the cannabis and a nearby neighbour calledthe landlord. This eventually led to his arrest and conviction for production and possession. Hewas sentenced to 200 hours’ community service.

Whilst serving the order Jason stopped cultivating. Some time later he started to grow again,but only for himself and a few friends. As he said, ‘I don’t want to grow commercially anymore, I just want to be able to pay my council tax and car insurance. I just want to be able toenjoy my wages a bit more.’

Jason had never been in trouble with the police prior to his arrest and has not been since. Hedoes not consider that he is breaking the law and believes that home cultivation should betolerated. Jason stated that he now cultivates because ‘I honestly enjoy it’. He believes the lawshould be based on the professionalism of the equipment, for example the amount of watts ofpower that are used, or the staggering of plants, or perhaps the dried weight of the cannabis asthis provides a better indicator of the intention to produce. Jason believes that the HomeSecretary’s decision to increase the penalty for selling cannabis will increase the number ofhome growers, but will also send out mixed messages to young people.

12

The Misuse of Drugs Act 1971 (MDA) classifiesdrugs according to the risks they pose. Cannabisis currently a Class B drug, although, as will bediscussed below, the Home Secretary hasannounced that it will be reclassified as a ClassC drug by mid-2003. Possession of a Class Bdrug carries a maximum penalty of five years’imprisonment and/or an unlimited fine.Possession of Class C drugs carries a maximumpenalty of two years’ imprisonment. In practice,however, prison sentences are very rarelypassed for the possession of cannabis; mostoffenders are cautioned, and where cases are

prosecuted the sentence is usually a small fine(see Corkery, 2002a, 2002b; May et al., 2002).

Cannabis cultivators may be charged witheither the production of cannabis or thecultivation of cannabis under section 4 andsection 6 of the MDA respectively. Peoplecharged under either section face a maximumsentence of 14 years’ imprisonment and/or anunlimited fine. However, there is an importantdistinction between these two sections. Thesection 4 offence of production is classified as atrafficking offence under the Drug TraffickingAct 1994. This means that anyone convictedunder section 4 is liable to asset confiscation.Furthermore, under the provisions of the Crime(Sentences) Act 1997, anyone who has twoprevious trafficking convictions faces amandatory seven-year prison sentence.1

Cultivation offences are not subject to theseprovisions (see Police Foundation, 2000, for afuller discussion).

Where a cultivator is using someone else’sproperty to grow cannabis, the occupier ormanager of the premises may also be liable toprosecution under section 8 of the MDA, if they‘knowingly permit’ the cultivator’s activities.

This offence carries a maximum penalty of 14years’ imprisonment for Class B drugs.

Whilst the cultivation of cannabis is illegal inBritain, the importation, sale and purchase ofcannabis seeds are not. The MDA forbidsimportation and sale only where the seeds areintended for cultivation.2 The equipmentneeded for growing high-yield cannabis plants,such as carbon dioxide cylinders, hydroponicsand heaters, can be legally purchased. In theirmarketing material, British-based seed andequipment companies usually stress theillegality of cultivation and emphasise the licithorticultural uses to which this equipment canbe put. This presumably confers someprotection against prosecution under section4(2)(b) of the MDA. Some such disclaimers arelow-key, others heavily sardonic:

Please note germination of these seeds is illegalin the United Kingdom. With legislationconcerning the legality of this collection beinginconsistent, contradictory and ever-changingacross the globe, we strongly advise all potentialcustomers to check their national guidelinesbefore placing any orders. All customers areresponsible for their own actions. We have nowish to encourage anyone to act in conflict withthe law and cannot be responsible for those whodo.

The lovely F1 cannabis seeds we supply are onlyto be grown in sensible countries where it is legalto do so, such as Holland, Belgium andSwitzerland. If you live in the UK, we will be ableto sell you some very expensive fishing bait orbudgie food, but you must under nocircumstances grow them. Remember justbecause it is all right for Jack Straw’s son to getcaught dealing or for the 3rd in line to the British

3 Cultivation and the law

13

Cultivation and the law

throne to get wasted on cannabis, it is not all rightfor you to do this. We cannot emphasise thispoint strongly enough!

Policing policy on cultivation

In 1999 the Association of Chief Police Officers(ACPO) recognised that case disposals variedamong forces, particularly in respect to drugoffences. In response they issued guidanceaimed at both operational and custody officersto help achieve greater consistency and fairnessin disposal (ACPO, 1999). In relation to cannabiscultivation, the guidance is intended to helpofficers decide between two main disposaloptions:

• arrest and caution• arrest and charge (as a cultivation or

production offence).

The guidance is premised on an assessmentof case seriousness. Offences committed byadults are placed on a scale of 1 to 5, taking intoaccount a series of aggravating and mitigatingfactors. For offences scoring 5 there is apresumption of prosecution, and for thosescoring 1 a presumption of a formal warning orno further action. A slightly different system hasbeen devised for juvenile offenders, using afour-point scale. Those scoring 4 on the scale,according to the guidance, should always becharged.

The guidance stresses that when making adecision about case disposal, the circumstancesand history of the offender are to be consideredas well as the seriousness of the offence itself.The guidance lists general gravity factors, suchas the criminal history of the offender, the likelysentence if prosecuted, and the impact of this

sentence on the offender. It then goes on tospecify the ‘entry point’ on the scale for eachdrug offence, and to list specific aggravatingand mitigating factors relevant to that offence.

The ACPO guidance states that offences ofcultivation should be dealt with either asproduction (section 4) or possession (section 5)offences, not as offences of cultivation (section6). According to the guidance, prosecutions forgrowing cannabis have tended to be broughtunder section 4 of the MDA 1971, as the term‘production’ incorporates the offence ofcultivation (see s. 37(1) MDA 1971). Productionof cannabis has an entry point on the scale of 5for adults and 4 for juveniles. Factors to betaken into account in deciding whether growersshould be charged under section 4 withproduction include a commercial motive, asophisticated set-up and the procurement ofscheduled substances. The cultivation of a smallnumber of cannabis plants is the only specificmitigating factor, although the guidance doesnot define how many plants constitute a smallnumber. The guidance, however, also states thatadults ‘will normally be prosecuted; mitigatinggravity factors are unlikely to affect the decisionto prosecute’.

The ACPO guidance provides case scenariosas illustration. Only two relate to cannabiscultivation. Neither are representative of theaverage cultivation case. Although the examplein the box below is atypical, it does offer someinsight into how the police are expected totackle the offence.

The second example involves someone whosmokes cannabis to ease the pain caused bychronic arthritis and rheumatism. The personcultivates 35 plants solely for personal use. Inthis case, as with all cultivation cases, it is

14

A growing market

advised that the most appropriate offencecategory is that of production. However, on thebasis of previous court disposals, theindividual’s severe physical illness and theirgood character, a caution is recommended as the

Scenario

D and P (both adults) unlawfully cultivate 30 cannabis plants, intending to sell the cannabisonce harvested. They cut and harvest the mature plants and then ask Q (a friend) to assist instripping them – i.e. removing and discarding the stalks and unusable parts. Q himself smokescannabis and expects to receive a small amount of the harvest material in return for hisassistance. While stripping the plants all three are arrested. D and P are prosecuted. Q, who isaged 19 and of good character, admits his part in the venture.

Appropriate offence

Unlawful production of a Class B drug, i.e. cannabis by Q: section 4(2)(a) Misuse of Drugs Act1971.

Recommendation

A caution is appropriate.• No convictions• No cautions• No formal warnings• Likely penalty: non-custodial sentence• Young offender• No commercial motive.

Supporting notes

The stripping of cannabis plants after they have been cut and harvested amounts to‘production’ of cannabis. The definition of ‘produce’ in s. 37(1) MDA 1971 refers specifically to‘manufacture, cultivation or any other method’. The ‘other method’ in this example is thepreparation of the plants by discarding those parts that are not usable and putting togetherthose parts that are.

References: R v. Harris and Cox (1996) 1Cr. App. R. 369; The Code for Crown Prosecutors, June1994, p. 12, para. 6.8.Source: ACPO (1999).

most appropriate disposal option. So, despitethe presumption of prosecution for offences ofproduction, it is clear that in some cases analternative disposal may be sought.

15


The ACPO guidance is the only formalstatement of current policy. Nevertheless wefound no mention of these guidelines by theforces (n = 16) who completed our questionnaireabout enforcement practice and force policy.Mirroring the view of a number of forces, andthe ACPO guidelines, one force respondentstated that for cases involving cultivation anofficer has to decide whether it is a production/supply offence or an offence of cultivation forpersonal use. As no definition exists todistinguish between the two types of offence,this decision was considered problematic.

Seven forces had individual guidance onwhich section of the MDA to charge individualswith if they are arrested for growing cannabis.This guidance took several forms: a policydocument detailing the MDA; Home Officeguidance (although it was unclear what thiswas); verbal advice from the Drug StrategyUnit; information on the force intranet; and theNational Drug Database. In general, theresponses to this section of our questionnairepoint towards considerable disparity and adegree of confusion about the most appropriateway of handling cultivation offences under theMDA.

Enforcement in practice

Home Office statistics do not differentiatebetween offences of production and cultivation.Both are collated as production offences. Therewere 1,960 cannabis production offences in theUK during 2000, a rate of four per 100,000 of thepopulation. Of these offenders, 458 received apolice caution. Just over three-quarters ofproduction offences (1,502) were dealt with incourt. The most common court disposal was a

fine, which accounted for 24 per cent of those1,960 offenders who were cautioned orconvicted. The volume of production offencespeaked in 1995, when cautions and convictionsreached 5,045. They have subsequentlydecreased every year since. The current numberof persons cautioned and convicted forproduction offences is the lowest since 1992(Corkery, 2002a). Similarly the number ofseizures involving cannabis plants has alsodecreased from a peak of 6,128 in 1995 to 2,020in 2000. Mirroring the volume of productionoffences, this is also the lowest number ofseizures since 1992 (Corkery, 2002b).

As discussed above, the national statisticsconflate information referring to section 4(production) and section 6 (cultivation) offences,making it impossible to say whether individualsare actually charged under section 4, as theACPO guidance suggests. Six of the 16 forcesthat completed our questionnaire said that theywould generally charge under section 4. Forexample:

… defendants are normally charged with the‘production’ offence, on the basis that,evidentially, it is easier to prove because there is atangible item in the form of the plant, irrespectiveof its maturity.

The remaining forces did not, as a matter ofcourse, charge all cultivation cases as offences ofproduction. Some forces stated that the offenceswere determined on a case-by-case basis,whereas others felt that the discretion of anindividual officer or custody sergeant was thedetermining factor. One force said that theycommonly bring cultivation charges, but rarelycharge individuals with production.

As part of an earlier study on the policing of

16

A growing market

cannabis (May et al., 2002), we collected detailedcustody record data on 1,312 cannabis cases forthe year 2000. These data were gathered fromfour Basic Command Units (BCUs) in two policeforce areas. For one of the areas, we were alsoprovided with force-wide statistics relating tocannabis cases for the year 2000. Across the fourBCUs 18 cultivation charges were brought,while only one individual was charged withproduction. If ACPO guidance had been appliedto the 18 cultivation offences the charges shouldhave been either possession or productionoffences.

The force-wide breakdown of cannabis casesprovides a more detailed analysis of productionand cultivation charges. Overall, there were 17production charges. The number of plantsinvolved ranged from one to 19 and thecorresponding value ranged from £10 to £1,900.In comparison, there were 57 cultivationcharges. The number of plants ranged from oneto 133, while the value of the seized plants wasestimated to range from £5 to £13,300. Courtdisposals also varied significantly. For example,an individual who grew 20 plants received acaution, another who grew 28 plants wasimprisoned for nine months, someone whogrew 30 plants was fined £60, another who wasarrested with 50 plants received a conditionaldischarge and someone who grew a single plantwas fined £100.

Within this particular force there were cleardisparities in the decision making that leads toan individual being charged with eitherproduction or cultivation and the subsequentcase disposal. Clearly there was little evidenceof national or force-level guidance filteringthrough to officers on the ground. Evidencefrom our police questionnaires also highlighted

a number of forces where disparities were likely.Most drug squads no longer deal with cannabisoffences; the lack of specialist knowledgecoupled with the relative rarity of the offencesmeans that the risk of idiosyncratic decisionmaking is high.

There are no nationally available statisticswhich could shed light on the ‘going rate’ forthe small-scale cultivation of cannabis. Asdiscussed, the statistics collated by the HomeOffice do not distinguish between productionand cultivation. However, as discussed in theprevious chapter, a Court of Appeal judgment in1999 gave a clear signal that a custodial sentencewas appropriate for what we would regard as asocial/commercial grower.3 In the year 2000,just under one-fifth (243) of those convicted incourt (1,502) received a custodial sentence forthe production/cultivation of cannabis(Corkery, 2002a).

The reclassification of cannabis

Whilst there have been calls over many years forreform of the MDA, there seemed little politicalwill to do this until recently. The first sign of achange of mood was the publication of theIndependent Inquiry into the Misuse of DrugsAct 1971 (Police Foundation, 2000). Thisrecommended that cannabis should bereclassified within the MDA from Class B toClass C. The change would have the effect ofreducing maximum sentences for cannabisoffences and of removing powers of arrest forpossession. (Any offence with a maximumsentence of less than five years is non-arrestable.) The second change is potentiallymore far-reaching than the first, because courtsentences for possession are already far below

17


the maximum even for Class C drugs.The government initially and very rapidly

rejected this recommendation in spring 2000.However, the media lent their support to theproposals, and over the following year therewere calls for legalisation or decriminalisationfrom both the main political opposition parties.The public mood seemed to have changed.Following the 2001 election, the ParliamentaryHome Affairs Committee announced that itproposed to mount an inquiry into thegovernment’s drugs policy. When givingevidence to this inquiry in October 2001, DavidBlunkett, the new Home Secretary, announcedthat he was considering reclassifying cannabisin the way proposed by the IndependentInquiry. He said that he would be seekingadvice from the Advisory Council on the Misuseof Drugs (ACMD) with a view to announcing adecision in early 2002. His view was thatreclassification would signal a change inpriorities for drug policing, and would freepolice resources to focus on Class A drugs suchas heroin and cocaine.

The ACMD and the Home Affairs Inquiryboth recommended reclassification of cannabisas a Class C drug. In July 2002 the HomeSecretary announced that he would introducereclassification by July 2003 at the latest. In theperiod between his initial request for advicefrom the ACMD and his final announcement,however, the public mood had perceptiblychanged once more, and questions were beingraised, especially in the mass media, about thewisdom of reform. The Home Secretary made itclear that the police would be expected to takefirm action against those in possession ofcannabis where circumstances warranted it. Itwas envisaged that ‘aggravated possession’

would include cases where an individual’sname and address were withheld from anofficer; where police authority was flouted – theexample of ‘blowing smoke in an officer’s face’is often cited; where an individual refused tosurrender the cannabis in their possession;where the offence occurred in proximity toschools; whilst driving under the influence; andwhen linked to certain public disorder offences.

At the time of writing the legislation to putthis into practice was passing throughParliament. The government’s approach is to:

• reclassify cannabis as a Class C drug,which would remove powers of arrest forpossession of cannabis

• but then to legislate to reintroduce powersof arrest for possession of Class C drugs

• and then to issue guidance, incollaboration with ACPO, to the effectthat the police should generally avoid

using these powers, except in specialcircumstances.

At the time of writing, the Criminal JusticeBill under parliamentary debate included inclause 9 an amendment to the Police andCriminal Evidence Act 1984 that would providefor powers of arrest for Class C drugs. Thecircumstances in which offenders should bearrested are expected to be defined through non-statutory guidance, drawn up in collaborationwith ACPO, the aim being to ensure that arrestwas the exception rather than the rule.

Towards the end of 2002 ACPO announcedtheir proposals for dealing with cannabispossession offences under the new system. Indoing so ACPO stressed that they were still in aconsultative phase; nothing had been finalised,

18

A growing market

and they would welcome comments and viewson their proposals. The proposals, in essence,were to introduce procedures not dissimilar tothose piloted in Lambeth, London, during 2001.The national scheme would involveconfiscation, whenever people were discoveredin possession of cannabis. On the first andsecond such occasion, adult offenders4 wouldbe given an on-the-spot street warning. On thethird occasion an individual would be arrestedand cautioned, and subsequent offences wouldresult in prosecution. The warnings would havea life cycle of 12 months; they would not havethe legal status of a caution or conviction andwould therefore not be cited in court. A recordof the street warnings will be kept locally. Thecircumstances under which possession offencesshould be treated as ‘aggravated’ – and subjectto arrest – were broadly as outlined by theHome Secretary.

In announcing plans to reclassify cannabisthe Home Secretary stressed that whilstpossession of the drug would receive greater

tolerance, he intended to crack down morefirmly on offences involving dealing. There islegislative provision for this. Clause 248 andSchedule 20 of the Criminal Justice Bill raise themaximum sentence for trafficking offences forClass C drugs from five to 14 years. MDAsection 8 offences (permitting use or productionon premises) will also become a traffickingoffence under the Proceeds of Crime Act 2002when this Act comes into force.

Precisely what implications these changeshave for home growing remains unclear. Publicdebate about cannabis has been premised on theassumption that there is a readily-madedistinction between dealers and users. As theprevious chapter has shown, this is not the case.There is an obvious case for treating cultivationby ‘sole-use’ growers simply as offences ofpossession. They could be given an on-the-spotwarning like anyone else found in possession ofcannabis. The position of social growers is morecomplex; we shall return to this issue in the finalchapter.

19

One frequently advanced argument indiscussion about reforming drug laws is thatinternational treaties limit the room formanoeuvre domestically. This chapter examinesthe relevant United Nations (UN) conventionsand considers how they constrain domesticpolicy in relation to home cultivation ofcannabis.1

The 1961 Convention

The United Nations 1961 Single Convention onNarcotics (as amended by the 1972 Protocol)lays the foundations of the current UNapproach of control of drugs throughprohibition. It was concerned mainly with drugcultivation, production and trafficking, thoughArticle 28(3) imposes a duty on countries toprevent the use of cannabis (or at least misuse).Section 36 requires signatory countries to ensurethat, subject to constitutional limitations inindividual countries, the ‘cultivation,production, manufacture, extraction,preparation, possession, offering, offering forsale, distribution, purchase, sale, delivery …shall be punishable offences … and that seriousoffences shall be liable to adequate punishment,particularly by imprisonment’. Significantly, the1961 Convention did not require that theoffences should be punishable under thecriminal law.

Although the 1961 Convention explicitlyrefers to possession, it has often been assumedfrom the context and from the overall tone ofthe document that regulation of supply ratherthan demand was its main target. It was notexplicit about criminal sanctions except for

serious offences, though it provided foralternatives to conviction and punishmentwhere the offenders were ‘abusers of drugs’.

The 1988 Convention

The United Nations 1988 Vienna ConventionAgainst Illicit Traffic in Narcotic Drugs andPsychotropic Substances (the 1988 Convention)is tougher than the 1961 one, and is framed totackle both supply and demand. It is morebinding than the 1961 Convention, obligingsignatories to share intelligence and co-operatewith one another against international drugtrafficking and to make efforts to eradicatenarcotic plants grown on their territory and toeliminate demand for illicit drugs (Article 14,para. 1). It is also explicit that offences should bepunishable under criminal law.

Article 3 requires that criminal offencesshould be established under domestic law tocover production, supply and possession withintent to supply, for a wide range of drugsincluding cannabis. The cultivation of cannabisis explicitly specified in Article 3:

Each Party shall adopt such measures as may benecessary to establish as criminal offences underits domestic law, when committed intentionally… the cultivation of cannabis.(Article 3, para. 1a(iii))

It states that the possession, purchase orcultivation of illicit drugs for personal useshould be criminal offences encompassed underthe criminal legislation of each country in thefollowing terms:

4 Cultivation and the United Nations

conventions

20

A growing market

Subject to its constitutional principles and thebasic concepts of its legal system, each Partyshall adopt such measures as may be necessaryto establish as a criminal offence under itsdomestic law, when committed intentionally, thepossession, purchase or cultivation of narcoticdrugs or psychotropic substances for personalconsumption. (Article 3, para. 2)

As did the 1961 Convention, the 1988Convention allows for considerable discretion inthe disposal of minor cases. In the first place,decisions about appropriate sanctions areclearly left to signatory countries, and areexpected to be in accordance with theconstitutional principles of that country.Furthermore, two sections are explicit aboutnon-punitive options in relation to minor casesgenerally and in cases involving possession,purchase or consumption for personal use:

… in appropriate cases of a minor nature, theParties may provide, as alternatives to convictionor punishment, measures such as education,rehabilitation or social reintegration, as well as,when the offender is a drug abuser, treatmentand aftercare.

The Parties may provide, as an alternative toconviction or punishment, or in addition toconviction or punishment of an offenceestablished in accordance with paragraph 2 of thisarticle, measures for the treatment, education,aftercare, rehabilitation or social reintegration ofthe offender. (Article 3, paras 4c and 4d)

Finally, Article 14 of the 1988 Conventionrequires signatory countries to take ‘appropriatemeasures to prevent illicit cultivation and toeradicate plants … such as opium poppy, coca

bush and cannabis plants cultivated illicitly inits territory’.

The ‘room for manoeuvre’: a stocktaking

The UN conventions set some clear limits to therange of reform options, whilst leavingindividual countries considerable room formanoeuvre (see Dorn and Jamieson’s bookEuropean Drug Laws: The Room for Manoeuvre

(2001), and De Ruyver et al., 2002, for fullerdiscussions). In respect of cannabis cultivation(or indeed possession) the conventions clearlyallow no scope whatsoever for legalisation.

However, they equally clearly allow for someforms of decriminalisation. As discussed inChapter 1, decriminalisation is usually taken toinclude measures which retain the offence inquestion as an offence, but avoid criminalprosecution and punishment. This can be doneeither by downgrading the legal status ofoffences, so that they are administrative ratherthan criminal offences, or by retaining the statusof criminal offence whilst avoiding theimposition of criminal penalties.Decriminalisation can thus include any or all ofthe following:

• the imposition of administrative ratherthan criminal sanctions, such as fixed-penalty fines along the lines of parkingtickets2

• substituting counselling or treatment forcriminal sanctions

• the issuing of non-statutory guidance toprosecutors about non-prosecution in thepublic interest.3

21

Cultivation and the United Nations conventions

As we shall see in the next chapter, theretend to be several variants of decriminalisation.The substitution of administrative sanctions(e.g. fixed-penalty tickets) for punishmentsimposed by criminal courts is not specificallymentioned by the conventions, but neither is itruled out. Non-penal alternatives are specifiedby both the 1961 and 1988 conventions. The1988 Convention signals that cultivation forpersonal use is a minor offence for which non-penal options may be appropriate. Thus our‘sole-use’ growers discussed in Chapter 2 couldbe eligible for ‘treatment, education, aftercare,rehabilitation or social reintegration’ rather thanpunishment. It does not require a very broadinterpretation of this section to regard policewarnings as measures intended to educate,rehabilitate or reintegrate.

Equally, it can be argued that theconventions permit police warnings and otherdiversionary strategies for our ‘social growers’.Even though the cultivation is not simply forpersonal use, it can clearly be argued that theseconstitute ‘appropriate cases of a minor nature’under Article 3. Where cultivation is on acommercial basis, it is rather harder to see howdecriminalisation (or depenalisation) isconsistent with the conventions, althoughsignatory countries have no explicit obligationto impose sentences of imprisonment for suchoffences.

Those variants of decriminalisation thatinvolve inaction rather than alternatives tocriminal prosecution and punishment cannotobviously draw their justification from anyparts of the conventions except those that referto the need to respect the country’sconstitutional limitations, such as the

requirement of proportionality in the officialresponse to infractions of the criminal law.

It is impossible to state with any greatercertainty what the conventions allow orprohibit. Countries are allowed considerablelatitude in the handling of cases. This flowspartly from the expectation that countriesshould properly seek consistency with theirconstitutional principles, and partly from theconventions’ failure to define serious or minorcases. As a result, the precise extent of countries’obligations is hotly contested, and within thesmall world of international drug policy, debateabout the conventions has become highlypoliticised.

The politics of the conventions

Signatories to the conventions are divided aboutthe need for reform. There is a strong ‘zero-tolerance’ axis, which includes countries asdiverse as the USA, Sweden, Japan, someMiddle Eastern states, ex-USSR states andAfrica. These countries have been dubbed the‘re-affirm camp’ because of their desire tomaintain or strengthen the current approach inthe conventions (Bewley-Taylor, 2002; Fazey,2002). In opposition to this, there is an axis ofpragmatism (or harm reduction) that includesmost of Europe, Canada and Australia, oftencalled the ‘re-assess’ camp due to theirunwillingness to take a wholly prohibitioniststance on drug control (Jelsma, 2002; Fazey,2002; TNI, 2002).

Both groups recognise that international andnational attempts to get to grips with problemsassociated with illicit drugs have achieved littleglobal impact to date (see Jelsma, 2002).

22

A growing market

However, there are sharp differences about theresponse that is required to this. The ‘re-affirm’camp argues for ‘more of the same’ – furtherintensive efforts to reduce demand and supplythrough enforcement, supplemented by otherpreventive approaches. The ‘re-assess’ camp ismuch more pessimistic about the scope forcontrolling illicit drug use through enforcementof criminal laws; they argue for a differentbalance of strategies, including the toleration ofsome drug use, coupled with strategies toreduce the harm associated with drug use.

The countries following this approach havebeen influenced by countries such asSwitzerland and the Netherlands and havepursued policies including decriminalisation ofconsumption, toleration of possession ofcannabis and other drugs for personal use andharm-reduction initiatives such as needleexchange programmes (TNI, 2002). Most ofthese countries have regarded (or at leastpresented) their policies as consistent with theUN conventions. This is because possession ofcannabis has in most cases remained on theirstatute book as a criminal offence, as requiredby the conventions.

Although European countries vary in theirpolicy and law enforcement practice, many havemoved towards more tolerance of cannabis use,as suggested by the EU (Commission ofEuropean Communities, 2001). Although EUcountries are committed to a process ofprogressive harmonisation of domestic criminallaw, it is unlikely that a consensus will evolverapidly (Chatwin, in press); nor does it seemlikely that there will be a unified European callfor change to the UN conventions, not leastbecause the Swedish government is clearlycommitted to ‘re-affirm’ policies (Fazey, 2002).

Though countries in the ‘re-affirm camp’ areunited in their desire to retain prohibitionistpolicies, the political motivation for this isvaried (Jelsma, 2002; Fazey, 2002). Religiouslaws against drugs have resulted in oppositionto change from Islamic states. Sweden’s socialdemocratic tradition, where the state has a dutyto protect its citizens against any perceivedthreat to undermine the fabric of society, has ledit to adopt a prohibitionist stance. However, theUS government is probably the most significantplayer in the ‘re-affirm’ camp. It has been theprincipal force promoting a global prohibitionistregime, tending at the same time to blur thedrugs issue with other foreign policy andsecurity agendas, notably that relating toterrorism (Jelsma, 2002). It has been thestaunchest defender of the UN regime’sdisciplinary framework and has used itsposition in the UN to maintain the global drugprohibition regime.

The UN International Drug ControlProgramme (UNDCP) co-ordinates UN drugcontrol activities. As part of the secretariat to theUnited Nations it has no powers to imposesanctions on countries in breach of theirobligations to the conventions. However,several commentators have remarked on itspartisan alignment with the ‘re-affirm’ camp.Especially in the late 1990s, its reports wereregarded by many as political documents,designed to promote the appearance ofinternational consensus on drug policy and theappearance of imminent victory in theinternational ‘war on drugs’. The task ofencouraging compliance with the conventionsfalls formally to the International NarcoticsControl Board (INCB), a committee of membercountries. Some have argued that the INCB has

23

Cultivation and the United Nations conventions

gone well beyond its brief in ‘naming andshaming’ countries whose policies are at oddswith those of the ‘re-affirm’ camp, such asSwitzerland and the Netherlands (see TNI, 2002;relevant reports are INCB, 2000, 2001).

All the UN conventions include provisionsfor revision. However, to be viable a proposalmust have support from two-thirds of signatorycountries, and for the time being at least, there isno realistic prospect of this happening. Thereare also provisions that allow individualcountries to derogate from, or ‘denounce’, theconventions, but this is seen by most as atheoretical rather than a realistic possibility. It isa time-consuming process and would meet withcriticism not only from the UN organisations

who strive for consensus, but from the USA(TNI, 2002). Many of the countries in the ‘re-assess’ camp may be unprepared to threaten theappearance of consensus at a time when this is ascarce and fragile commodity within UNmember states (Jelsma, 2002). For reasons thatare entirely political, the middle-term future ofthe UN conventions on narcotic drugs may wellturn on the outcome of the ‘war on terrorism’(see TNI, 2002). In particular the extent to whichthe USA can exert leverage on countries in the‘re-assess’ camp might be greatly reduced if itwere to act outside of a framework of UNmandates in taking action against thosecountries that it regards as a significant threat.

24

This chapter describes the law in theory andpractice as it applies to various developedcountries around the world. We have not aimedto be comprehensive; rather we have selectedcountries that are illustrative of a range ofapproaches. Most have drug problems that arenot dissimilar to those in the UK.

Switzerland: beyond the UN conventions

Switzerland was a signatory to the 1961 UNConvention and to the subsequent amendments,but it has not signed the 1988 ViennaConvention. At the time of writing it wasconsidering fairly far-reaching reform of itsdrug legislation.

At present, Swiss law permits the cultivationof hemp or cannabis plants that have a THCcontent of less than 0.3 per cent. Hemp isgenerally produced for use in the production ofrope, textiles and foodstuffs. Cultivation ofstronger strains for consumption as cannabis isillegal. However, the existence of the parallellegal hemp market has created practicaldifficulties for enforcement, and domesticcultivation of cannabis is widespread.

The Swiss Federal Office of Agriculture(BLW) statistics for 1998 showed that 60 hectareswere under cannabis cultivation in Switzerlandfor the purposes of a renewable raw material.However, the BLW estimated that an area ofaround 250 hectares was then under cultivationfor ‘other uses’, which it assumed was for theproduction of smokable cannabis (Swiss FederalCommission for Drug Issues, 1999, p. 16). Thetrend for cannabis cultivation is upward, and itis thought that Switzerland is now one of thetwo major cannabis-exporting countries inEurope, the other being Holland (Swiss Federal

Commission for Drug Issues, 1999, p. 18).‘Hemp shops’ are tolerated to a degree by

the authorities. There were 135 hemp shops in1998 according to the Swiss FederalCommission for Drug Issues (1999, p. 16). Morerecent estimates show that there are nowaround 230 hemp shops in the country (Collin,2002). Because shops claim the products are notintended to be used as an illegal drug, it is legalto sell cannabis, but the shops must packageand sell the product for purposes other thansmoking, such as ‘scent sachets’, ‘hemp tea’,‘perfuming homes’ or ‘scented pillow cases’.

The political will for reforming the druglegislation stems from two main sources. First,the Swiss government has come under growingpressure to contain the export of cannabis toother European countries. Second, Swisscriminal law is intended to operate inaccordance with the ‘legality principle’ wherebylaws should be enforced as long as they are onthe statute book, as opposed to the ‘expediencyprinciple’ where non-enforcement of some lawsis acceptable.1 Partial legalisation coupled withtight regulation provided a means to control theexport of cannabis whilst reconcilingenforcement practice with the letter of the law.

At the time of writing the Swiss upperparliamentary house had approved a newNarcotics Act which would leave cultivation ofcannabis as a crime, whilst providing statutoryguidance to prosecutors not to prosecutecommercial cultivators if:

• they have less than a specified number ofhectares under cultivation

• they have notified the Department ofAgriculture of this fact

5 Approaches in other countries

25

Approaches in other countries

• cultivation is solely for the domesticmarket, and will result in no export.

Below a certain threshold cultivation forpersonal use will not be subject to therequirements of notification. The process ofwholesale and retail distribution is to be subjectto equally tight regulation. The aim of thelegislation is to allow the authorities to regainsome control on the cannabis market,minimising the illicit market and containingexportation to an acceptable level.

The primary legislation will be debated bythe lower parliamentary house in spring 2003and, assuming it is enacted, the prosecutorialguidelines will be placed before parliament bythe end of the year. There is considerableopposition to the legislation as well as supportfor it. The Swiss constitution allows for enactedlegislation to be put to a national referendum ifa petition with 50,000 signatures opposing it canbe assembled. It is likely that this will occur inrelation to the Narcotics Act, in which case thereferendum will take place in 2004.

The Narcotics Act decriminalises rather thanlegalises cultivation. The offence of cultivationwill remain on the statute book. On the otherhand the guidance for prosecutors – which willalso be in the statute book – provides cultivatorswith a guarantee of non-prosecution, providedthat they meet certain conditions. This rules outthe possibility of prosecution, placing theiractivities on the borderline of legality. Whetherthis is regarded as legalisation ordecriminalisation, it is clearly inconsistent withthe 1961 and 1988 UN conventions’ requirementfor countries to take action to prevent domesticcultivation – though of course Switzerland isnot a signatory to the latter.

Perhaps the most noteworthy feature ofSwiss drugs policy is its intention of distancingdrug users from criminal distribution networks.The proposed cannabis legislation is intended toparalyse the illicit market in cannabiscultivation and export. At the same timeSwitzerland’s experimentation with theprescription of diamorphine (or pharmaceuticalheroin) has aimed at detaching dependentheroin users from the illicit market and fromdrug-related crime. An unexpected side effect ofthis policy appears to have been to destabilisethe illicit heroin market, given the central roleplayed by dependent users as low-leveldistributors and runners (Killias and Aebi,2000): the programme appears to have removedthese low-level operators from the streets insufficient numbers to make a difference.

The Netherlands: tolerance through

decriminalisation

The Opium Act 1928 is the basis for the presentlegislation. Dutch law distinguishes between‘hard’ and ‘soft’ drugs and cannabis isconsidered to be less harmful and categorised asa soft drug. The aim of Dutch law is to avoid thecriminalisation of young people and those inpossession of small quantities of cannabis and toprevent them becoming involved in a criminalunderworld (ELDD, 2002).

In contrast to the Swiss, the Dutch PublicProsecution Service operates an expediencyprinciple, which allows for executive discretionnot to prosecute. In relation to cannabis thismeans non-prosecution for the sale of cannabis(under 5 grams to one person) from coffee shopsand of possession of small amounts (Blom,2001). The cultivation of cannabis for personal

26

A growing market

consumption is prohibited by law, but such actsare not actively investigated or prosecuted(INCB, 2001; Blom, 2001) and are tolerated on asmall scale (Blom, 2001). In fact the possessionof cannabis for personal use has the lowestjudicial priority of investigation or prosecution.The Dutch Public Prosecution Service maydecide not to prosecute and the police candismiss cases if they meet the criteria of theexpediency principle (ELDD, 2002). If, however,a case is prosecuted, there are distinctions in thesanctions between small- and large-scalecultivation. The sanctions for smaller-scalecultivation are as follows:

• Up to five plants and for personal use (i.e.no lamps and no fertilisers) – nosanctions, although the plants will beconfiscated.

• Five to ten plants result in a fine of 22euros per plant.

• For a second offence five to ten plantsresult in a fine of 34 euros per plant.

• Ten to 100 plants would result in a fine of55 euros and/or half a day’simprisonment per plant.

• The maximum penalty for the cultivationof cannabis is two years’ imprisonmentand/or a fine of 10,000 euros.

• Cannabis cultivation offences that haveresulted in prosecution have attractedcommunity service-type penalties (‘taskpenalties’) and imprisonment for repeatoffenders.

There have been calls by some mayors for atrial involving coffee shops being legallysupplied with cannabis from selected growers.

This has been supported by a small majority inparliament, but the current government is notkeen to pursue it because of the ‘internationalcontext’.

Despite a widespread belief that cannabishas been legalised in the Netherlands, this is notthe case. The policy of the Netherlands is – or atleast can be presented as being – in accordancewith the UN conventions, as use and cultivationare criminal offences and there is no statutoryguarantee of non-prosecution. However, theNetherlands made a reservation at the 1988Convention to enable them to tolerate the sale ofcannabis through coffee shops. The INCB hascriticised the Netherlands for its continuedtoleration of the cultivation of cannabis andcoffee shops, stating that these policies do notmeet the requirements of the 1961 Convention(INCB, 2001).

Portugal: tolerance and treatment – but not

for cultivation

The main law regarding the control, use andtraffic of narcotic drugs is Decree Law 15/93, inwhich a clear distinction is made betweenoffences of trafficking and those of use. This lawwas amended by Law 30/2000, whichintroduced measures to decriminalise use andpossession of all illicit drugs. This amendment,which took effect in July 2001, had the effect oftransforming the criminal offences of drug use,possession and acquisition for personal use intoadministrative offences, allowing for disposalthrough administrative sanctions such as finesand alternatives to punishment, such ascounselling and treatment.2 If an individual isfound in possession of modest amounts ofdrugs for personal use, the drug will be

27


confiscated and the case submitted to a localcommission consisting of a lawyer, doctor andsocial worker. The commission assesses theindividual’s situation; it can arrange fortreatment in cases of dependence, and put inplace other rehabilitative measures. It also haspowers to fine offenders (with fines rangingfrom 25 to 150 euros), to confiscate personalproperty and to ban a range of activities. Thescheme largely diverts from punishment thosewhose offences involve only personal use, andcriminal enforcement activities are reserved forcommercial trafficking.

Cultivation of cannabis for personal use isnot covered by the scheme, and it continues tobe covered under the previous Decree Law 15/93. Article 28 of Law 30/2000 explicitly excludescultivation from its provisions. This has theeffect of retaining cultivation as an imprisonableoffence, distinguishing between small-scale andcommercial activities. Even though thecultivation of drugs is defined as a traffickingoffence by Decree Law 15/93, the authorities arelikely to prosecute only in cases involvingcommercial cultivation. Nevertheless, thereremains an obvious legal anomaly, that thepossession of a plant under cultivation is acriminal offence, but the possession of the sameplant once removed from the soil is anadministrative offence. We were unable to findout how the Portuguese system deals with thisillogicality.

In Portuguese national drug strategydocuments, it is argued that the new system iscompatible with the UN conventions. The 1961Convention requires possession to bepunishable, but not necessarily a criminal

offence. It is argued that making possession anadministrative offence is consistent with the

1988 Convention – which requires possession tobe a criminal rather than an administrativeoffence – on the grounds that the administrativestatus of the offence is consistent with thecountry’s constitutional limitations.3

South Australia: the expiation scheme

The state of South Australia enacted itsCannabis Expiation Scheme in 1986. Thescheme, which took effect from 1987, may haveprovided a model for the Canadian proposalsfor decriminalisation, discussed below.4 Theexpiation scheme allows for the police to dealwith ‘simple’ cannabis offences by issuing anexpiation notice to the offender. If the feespecified by the notice is paid within 60 days, nofurther action is taken. However, failure to paythe fine can result in prosecution, convictionand a criminal record. Simple offences aredefined as possession and cultivation forpersonal use, the judgement about personal usebeing left to police discretion. However, if theoffence involves any commercial transaction, orif consumption takes place in public or if theoffence involves cannabis oil, the offence is non-expiable and will result in prosecution.

The penalty for cultivation – originally for amaximum of ten plants5 – for personal use is$A150 if it is dealt with by expiation. If thepolice judge that the plant is being growncommercially they will charge with commercialcultivation, and prosecute rather than issue anexpiation notice. If the court fails to convict onthis charge, but does so for possession, themaximum penalty is $A500, though in practicecourt fines are in line with those dealt withthrough expiation. Around 3,000 expiationnotices for cultivation are issued annually;

28

A growing market

numbers of prosecutions for cultivation aremuch less common.

The scheme’s rationale was to treat simpleoffences more leniently, whilst getting tougherwith offences of supply, including the supply ofcannabis. However, critics of the scheme arguethat in practice the scheme has resulted in ‘net-widening’, with the police issuing expiationnotices in situations where previously theywould have dealt with the matter informally.This is because relative to preparing a case forprosecution the expiation process isunbureaucratic and easy to manage (Christieand Ali, 2000). There have also been criticismsthat the ten-plant threshold was set too high,allowing commercial exploitation.

The scheme would appear to be consistentwith the UN conventions because possessionand cultivation are retained as criminal offences,and whilst penalties are imposed, these do notconstitute criminal convictions. In this regard, itis a form of decriminalisation.

Canada: towards decriminalisation and

‘ticketing’?

The Canadian approach to cannabis appears tobe in a process of rapid change, and theintroduction of new cannabis control legislationhas been announced for the first part of 2003that will open up the possibility ofdecriminalisation of possession and cultivationof small amounts of the drug. At the time ofwriting, the legal position is as set out in theControlled Drugs and Substances Act 1996(CDSA). This distinguishes between variouscategories of drugs organised by schedules andcorresponding punishment frameworks. Thepossession, cultivation and trafficking of

cannabis are regulated as criminal offences.(Simple) possession of cannabis is regulatedunder Schedule II, under which possessionoffences can result in a maximum punishmentof six months’ imprisonment and/or a$CAN1,000 fine for first-time offenders(summary conviction), or double these amountsfor repeat offenders (on indictment). However,Schedule VIII limits the maximum punishmentfor all cannabis possession offences to sixmonths’ imprisonment and/or a $CAN1,000fine if possession does not exceed the maximumamounts of 30 grams (marijuana) or one gram(resin). In practice, most first-time offendersconvicted of a simple cannabis possessionoffence typically face a small fine or aconditional discharge, but acquire a criminalrecord upon conviction. Repeat offenders, oroffenders with a criminal history, will attracthigher fines, and in some cases are given shortprison sentences (Fischer et al., 1998). Themaximum sentence for cultivation is sevenyears’ imprisonment, but in many casescultivation for personal use appears to betreated much the same as possession.

A Senate Special Committee on Illegal Drugs– focusing centrally on cannabis – reported inSeptember 2002. This called for radical reform,recommending that most cannabis offencesshould be taken out of the realm of criminal lawand control altogether. In December a House ofCommons Special Committee on Non-MedicalUse of Drugs also reported (Canadian House ofCommons, 2002). This made less radical but stillsignificant recommendations for the reform ofcannabis control, including thedecriminalisation of offences of possession andcultivation of small amounts of cannabis. Thereport proposes that possession and cultivation

29


should formally remain criminal offences – asrequired by the UN conventions – but thoseoffences involving 30 grams (just over an ounce)or less should be decriminalised. There havebeen suggestions that such decriminalisationcould occur through the establishment of a‘ticketing offence’ system, in which the offenderwould receive a citation equivalent to a parkingticket; this ticket would entail an administrativefine. Offenders would not appear beforecriminal courts and would not acquire acriminal record for the offence per se. (However,some might very well end up in court and get acriminal record for fine default, as the SouthAustralian experience shows.) The federalJustice Minister has announced that legislationis planned for the first four months of 2003.

The proposed Canadian approach resemblesthe South Australian one, but differs in emphasisfrom that of Portugal, in that the primaryresponse to personal possession and cultivationwill be a penalty – albeit an administrative ratherthan criminal one – rather than treatment orcounselling. The proposals would of course entailthat sole-use and social growers who are foundwith more than 30 grams of cannabis willnormally6 be charged with possession for thepurpose of trafficking and processed accordinglythrough the criminal courts. We saw in Chapter 2that a single plant might yield a highly variableamount of cannabis, from under half an ounce(or 14 grams) to several ounces – well over the 30grams threshold. Will it prove possible tomaintain a system that criminalises some homegrowers and not others, depending on – amongstother things – their horticultural expertise? TheSouth Australian expiation scheme sidesteps thisproblem – but may encounter others – by leavingit to the police to decide whether the offence

involves growing for personal use only.A relevant additional feature of Canadian

legislation is that an amendment has alreadybeen made to the regulations within the CDSAin 2001, allowing the use of cannabis by peoplesuffering from serious illnesses and those whomight experience some medical benefit from itsuse. Conditions for use are outlined in theMarihuana Medical Access Regulations(MMAR). Individuals must obtain‘authorisation to possess’ cannabis for medicalpurposes from federal authorities and canpossess a maximum quantity equal to a 30-daytreatment supply specified by a medicalpractitioner. The patient or a representative ofthe patient can apply for a licence to grow aspecified amount of cannabis indoors oroutdoors and may store up to the maximumexpected yield of 250 grams of dried cannabis.

The Canadian approach for possession ofcannabis is presently consistent with the UNconventions because possession and cultivationare retained as criminal offences. However theINCB (2000) has criticised the lenient approachtowards cannabis growers who they statereceive little or no punishment in the court. Thelatest Canadian proposals push the UNconventions to their limits.

Sweden: approaching zero tolerance

The main Swedish law regulating narcotic drugoffences is the 1968 Narcotic Drugs Act (ELDD,2002). This states that any activity involvingillegal drugs, including drug use, is unlawful(Zila, 2001). Swedish law does not distinguishbetween ‘soft’ and ‘hard’ drugs (Zila, 2001), butstates that crimes should be punished accordingto the nature/quantity of the drugs involved

30

A growing market

(ELDD, 2002). Pronouncements about theharmfulness of drugs are not outlined in anyspecific law, but a finely graded hierarchy ofdrugs has been established in case law (Zila,2001). When judgments are made thecircumstances of each case and purpose of thecrime (e.g. whether it was pursued on acommercial basis or on a large scale, etc.) aretaken into consideration (ELDD, 2002).

The cultivation of cannabis for personal useis not mentioned in the law, although theacquisition of drugs for personal use ispunishable, however they are acquired. Thisincludes possession or ‘other handling’ of drugsfor the intention of abuse, under section 6 of theNarcotic Drugs Criminal Act (Zila, 2001).

There are three degrees of penalties inSwedish law: minor, ordinary and serious. Adrug offence is treated as a minor offence only ifit involves personal use or possession forpersonal use only; there must be no exchange ofdrugs between individuals. If judged minor,cannabis offences usually attract a fine, though ashort prison sentence can be passed. Themaximum penalty for ordinary drug offences isa sentence of three years (ELDD, 2002).

Like Switzerland, the Swedish legal systemfollows the legality principle rather than theexpediency principle; thus the prosecutor has aduty to initiate prosecution proceedings for anoffence once it has come to light – though undercertain conditions the prosecutor candiscontinue an investigation or waive aprosecution for a minor offence.

Swedish law is in accordance with the UNconventions and may even be more stringentthan is required. It is unclear how cannabisoffences would be dealt with from theinformation gathered together, as the literature

suggests each case is dealt with individually.However, the evidence suggests Swedenoperates a strict legality principle and thatprosecution is likely (Zila, 2001).

France: heavy penalties but prosecutorial

discretion

The current framework for French drugs law isestablished by the Law of 31 December 1970. Thisprohibits a range of drugs including cannabis.The thinking behind it is that trafficking offencesshould receive heavy penalties, whilst use ofdrugs should be treated more leniently; the lawemphasises that drug-using offenders shouldreceive treatment wherever possible, rather thanpunishment (ELDD, 2002). The response totrafficking offences was further toughened up in1992 (New Penal Code (NPC)). Illicit substancesare defined in the Decree Law of 22 February1990, which allocates each illicit drug into one offour categories; cannabis is a List 1 drug, alongwith heroin and other drugs of dependence.Cannabis offences thus carry the same maximumpenalties as the equivalent heroin offences(ELDD, 2002).

Unusually, the French criminal law createsan offence of use, but not of possession. Thismeans that offenders must be charged either foruse or trafficking. This has led to someconfusion as possession of drugs couldtheoretically be tried as a trafficking offence(article 222-37 of the NPC) (Bisiou, 2001).

The offence of cultivation is specified underarticle 222-35 of the NPC (Bisiou, 2001). Nodistinction is made between small- and large-scale cultivation; the offence is treated as a formof trafficking and can attract a maximumsentence of 20 years’ imprisonment or a heavy

31


fine. Given the gravity of cultivation charges,prosecutors sometimes proceed against minorcases using lesser charges, such as use orpossession with intent to supply (Bisiou, 2001).Judicial authorities make decisions about thepenalty for offences according to the nature of thesubstance, quantity, previous criminal recordsetc., and may choose not to prosecute theoffender, although the implementation of the lawvaries between areas and courts (ELDD, 2002).

At the time of writing there were pressreports that the French government wasplanning to toughen up its cannabis laws, to getto grips with the increasingly widespreadpractice of home cultivation (e.g. Guardian, 27December 2002). Even without any suchchanges, the French policy on drugs is inaccordance with UN conventions in their mostprohibitive interpretation (Bisiou, 2001).

32

This report has offered a snapshot of cannabiscultivation and policy responses to cultivation inEngland and Wales. It has summarised how thelaw treats cultivation in seven other countries. Ithas also examined the extent to which ourdomestic legislation is constrained by the UnitedNations conventions to which Britain is asignatory. The key points to emerge are as follows:

On cannabis cultivation in England and Wales

• Domestic cultivation of cannabis iswidespread, and may now account foraround half of cannabis consumed inEngland and Wales.

• It is difficult to assess what proportion ofdomestically cultivated cannabis is grown forcommercial purposes and what proportion isgrown for personal use.

• The distinction between social growers andcommercial growers is a blurred one, aspeople can make significant amounts ofmoney simply by selling to their friends.

• Home growers often supply cannabis topeople for medical purposes.

On criminal justice responses to cultivation

• There is extensive variation in the policeresponse to cultivation.

• Those cultivating for personal use may becautioned or prosecuted, and prosecutionsare sometimes done under charges ofproduction and sometimes under charges ofcultivation.

• Where there is a commercial element to socialgrowing, prosecution, conviction andimprisonment are likely.

On the United Nations conventions

• The UN conventions require signatorycountries to prohibit cultivation of cannabisunder the criminal law.

• They clearly permit cultivation for personaluse to be dealt with by means other thanpunishment – such as treatment, counsellingand education, and simply throughwarnings.

• Though they are less explicit on this point,they do not appear to rule out dealing withcultivation for personal use as a minoroffence, dealt with by administrativepenalties (such as ‘ticketing’ or fixed fines).

• There is progressively less scope for suchstrategies the more that cultivation is carriedout on a commercial basis.

On approaches in seven other countries

• Several countries in practice if not in lawequate cultivation for personal use withpossession.

• Several have decriminalised – or plan todecriminalise – cultivation for personal use.

• Some countries impose administrativepenalties (ticketing offenders, or imposingfixed-penalty fines) whilst others offerwarnings, counselling or treatment.

• The response to social and social/commercialgrowers varies widely.

• One of the seven countries – Switzerland – isactively considering virtual legalisation andregulation of cultivation.

6 Discussion and conclusions

33

Discussion and conclusions

Public debate about cannabis use in Englandand Wales has become increasingly intense overthe last two years. However, this debate hasfocused mainly on the offence of possession,and in particular on dealing with possessionoffences in ways that are financially and sociallyless costly. The Home Secretary has announcedthat cannabis will be reclassified as a Class Cdrug – although the Criminal Justice Bill thatwent before Parliament at the time of writingincluded provision to preserve the power ofarrest for possession. It is expected that themajority of those found in possession ofcannabis will have the drug confiscated and willbe given an on-the-spot warning. Only thosewhose possession is in some way ‘aggravated’will face arrest, followed by a caution orprosecution. In announcing reclassification, theHome Secretary has proposed a twin-trackapproach, where lenience towards users iscounterbalanced by tougher action againstdealers.

So far, little consideration appears to havebeen given to cultivation. Given the scale ofdomestic cultivation, it is important that policyon this should be developed in harness with thechanges in the law as it relates to possession.There are four sets of issues to consider:

• how cultivation for personal use shouldbe treated

• how non-commercial social growersshould be treated

• how commercial cultivation should betreated

• whether medical growers deserve specialtreatment.

Cultivation for personal use

We have seen that the 1988 UN Conventionbrackets together cultivation for personal useand possession for personal use.1 Provided thatit can be established that cultivation is indeedfor personal use, it is hard to see how adefensible distinction could be made. Therewould be little logic in a law that treated thecultivation of a cannabis plant for personal useas a more serious offence than the possession ofcannabis from the same plant once it had beenharvested.

There are grounds for treating cultivation forpersonal use akin to possession. It is lessunacceptable that cannabis users should growtheir own cannabis than that they should beexposed to a market populated by criminalentrepreneurs.

There are some arguments for treatingcultivation for personal use more severely thanpossession. These are mainly ones of deterrence– this argument is mainly put forward by thosethat believe greater toleration of cultivation willpromote higher levels of use. However, homegrowing is so readily concealable, sowidespread, and so socially acceptable amongstyoung people, that any increase in deterrentthreat is unlikely to affect the perceived riskunless the police devote totally disproportionateresources to the detection of cultivationoffences. Whilst the financial costs in doing thiswould be heavy, they would be outweighed bythe social costs associated with the toughenforcement of a law which commands littlesense of legitimacy amongst young people.

If it is agreed that cultivation for personaluse and possession should be treated equally,there is a strong case for ensuring, upon

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reclassification, that cultivation for personal usedoes not usually result in arrest, followed byprosecution or caution. Rather, it should betreated as possession for personal use: the plantshould be confiscated, and the grower given anon-the-spot warning. The legislative route forachieving this would depend on precisely howthe reclassification is managed. As discussed inChapter 3, the approach that is being taken bythe government to possession offences is toretain powers of arrest for possession throughan amendment in the Criminal Justice Bill, butto issue guidance to the police that offences ofpossession should not generally result in arrest.If this path is followed, then the guidancesimply needs to include parallel provisionsabout cultivation for personal use.

Another option – that now seems unlikely –would be to follow the recommendation of theIndependent Inquiry (Police Foundation, 2000),and to make both possession and small-scalecultivation of cannabis non-arrestable offences.In this case it would make sense to amendsection 6 of the MDA, to make cultivation ofcannabis a non-arrestable offence, whilst leavingsection 4 (production) unchanged.

Whichever route is taken, there would be aneed to establish criteria by which cultivationfor personal use could be defined. There areseveral approaches here. The simplest is tospecify the maximum number of plants that willbe regarded as being for personal use. This wasthe approach recommended by the IndependentInquiry. This has the virtue of clarity andsimplicity. Another equally simple and robustapproach is to specify the weight below whichany cannabis is regarded as being for personaluse. It will be remembered that the Canadianproposals will involve ‘ticketing’ offenders if

they are found cultivating, or in possession of,30 grams of cannabis or less.

The drawback to setting thresholds, whetherin terms of weight or number of plants, is thatwherever the threshold is set, it will result inarbitrary distinctions and thus in inequities. Athreshold of 30 grams, for example, would meanthat people who cultivated 35 grams of weak-strain cannabis would be criminalised, whilstthose with a 25 gram strong-strain plant wouldbe let off with a warning. Similar considerationsapply to a threshold framed in terms of plantnumbers. In the case of a weight threshold,people whose cultivation was discovered at anearly stage in the cycle might be treated moreleniently than those who were about to harvest.There would be perverse incentives on peopleto use strong strains. It would be inevitable thatsome sole-use growers would fall on the upperside of the boundary line, and some social orcommercial cultivators would fall on the lowerside. It is also likely that small-scale commercialcultivators would exploit the rigidities of thesystem, growing no more than one or two plantsof strong-strain cannabis in any one location atany one time.

Less crude criteria for defining cultivationfor personal use could be set. One might try toestimate potential yield and the frequency ofthat yield in relation to individual consumptionpatterns. With hydroponic cultivation, onemight set the threshold according to the wattageof lighting used and the number of lights. Thedifficulty would still remain that the objectivecriterion relating to weight or strength of thecrop would always remain a poor indicator ofthe intentions of the cultivator in growingcannabis in the first place.

The alternative is to follow the South

35


Australian approach and leave decisions aboutpersonal use to the discretion of the police,allowing their decisions to be tested if necessaryin court. There is already a precedent for this inthe way in which the police, the CPS and thecourts distinguish between offences ofpossession and those of possession with intentto supply. Discretionary decisions aboutcultivation for personal use could obviously bestructured through detailed guidance. Theproblem here is that police judgements aboutthe intentions of cultivators would never befully transparent; they would often be simplywrong; in some cases it would be impossible tosay whether they were right or wrong – where,for example, a grower simply hadn’t decidedwhether to give away any of the crop; and inpractice only a small minority of these decisionswould be exposed to judicial assessment, incontested court cases. There would be a clearrisk that the police might use their discretion inways that bore down disproportionately andunfairly on specific groups or individuals.

If the government decides to distinguishbetween cultivation for personal use and larger-scale cultivation, there is a choice to be madebetween an objective yardstick such as numberof plants or weight, or a reliance on policediscretion. Both sorts of approach would resultin a degree of inequity, but at least the inequitiesthat relate to decisions based on plant weight ornumbers are predictable and comprehensible.However, if decisions are left to policejudgement, the lack of transparency and thedisparities that would inevitably arise betweencases, and across police force areas, would bedamaging to public confidence in the police.

Whatever approach is taken to cultivationfor personal use, there is a strong case for

clarifying the appropriate charges to be broughtfor cultivation for personal use. Some policeforces charge suspects with production, undersection 4 of the MDA; others charge undersection 6, as cultivation of cannabis. Productionis a trafficking offence, and as such carries aseven-year mandatory sentence on the thirdconviction. Charging offenders under section 6seems to us to be more appropriate.

Were the government to accept that offencesof cultivation for personal use should be treatedon a par with possession offences, there areconsequential implications for the handling of‘premises’ offences under section 8 of the MDA.If on-the-spot warnings for small-scale homegrowing were to become the norm, it would beperverse to treat anyone who had allowed theirpremises to be used for the offence to be dealtwith more severely. It is unclear why thegovernment sees a need to increase themaximum penalty for section 8 offences forClass B and C drugs from five to 14 years; it canonly be hoped that this is not translated intotougher action against those who permitcultivation for personal use on their premises.

Non-commercial social cultivation

We saw in Chapter 2 that an important group ofhome growers are those who grow on a non-commercial basis for their friends as well asthemselves. Indeed this group is likely to belarger than sole-use growers. Should they betreated differently from the latter? Theconstitutions of several of the countries weexamined provide some justification for this, inrequiring offenders to cause or risk harm toothers besides themselves before a criminalprosecution can be mounted. If cannabis use is

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judged to carry risks (as it surely does), there isa case for discouraging people from socialcultivation more intensively than from sole-usecultivation.

In the abstract this argument may seemcompelling. But policy on social cultivationneeds to be developed with the realities of thecurrent cannabis market firmly in view. Forthose who wish to smoke it, cannabis is readilyavailable, whether domestically cultivated orimported. Government policy needs to be setpragmatically and with realism. Arguably, theaim of policy in this field should be to push theentire drugs market into the least unacceptableshape, rather than to eradicate all aspects of it.Policy has to be set in recognition of the limitedleverage it has over drugs markets. Cannabismarkets are likely to have fewest unacceptableconsequences when they are least populated bycriminal entrepreneurs. Criminal entrepreneurswill maximise prices, and will have a vestedinterest in getting their cannabis clientele to buyother more profitable – and riskier – drugs.

One of the few effective policy leversavailable to government to destabilise thecannabis market operated by criminalentrepreneurs is greater toleration of socialcultivation. Tolerating home growing to agreater degree would make this segment of themarket thrive. This would then serve as awedge between a significant proportion of usersand criminally sophisticated suppliers. Thosewho relied on home cultivation would havereduced exposure to people selling moredamaging drugs. A thriving home-grownmarket might also serve to depress prices, andthus tend to drive out criminal entrepreneurs.

If this argument is accepted, then there areseveral possible policy responses. One would be

to create offences of social supply of cannabis,and of cultivation for social supply of cannabis,as recommended by the Independent Inquiry, inwhich social supply would be defined as thenon-commercial (or non-profit-making)distribution of cannabis to non-strangers. Itwould be a matter for judgement how muchmore seriously such offences would need to betreated than one of cultivation for personal useonly. Another option would be to leave thelegislation on cultivation unchanged, but toissue guidance to criminal justice agencies onhow to deal with social cultivation. TheIndependent Inquiry proposed that wherepeople were prosecuted for supply offences,there should be a defence of ‘social supply’. Asimilar defence could be instituted for chargesof cultivation or production, under section 4 or 6of the MDA.

The police and CPS would need advice onthe appropriate charge to use for social supply –section 6 of the MDA rather than section 4 – andguidance on the circumstances in which acaution is more appropriate than a charge. Thecourts would need advice from the Lord ChiefJustice or from a Court of Appeal judgment (or,in time, from the Sentencing GuidelinesCommission) on appropriate sentencing levels.Sanctions might range from a small fine forsocial cultivation which fell just above thethreshold for personal use to a much larger finefor offences falling just below the threshold forcommercial cultivation.

If arrangements of this sort were to work, itwould be important to establish a means ofdifferentiating between social supply and moreserious offences, and to offer at least indicativeguidance as to the threshold between social andcommercial cultivation. This would inevitably

37


raise the same sorts of difficulty as forcultivation for personal use. A thresholdnumber of plants or a threshold weight ofcannabis seized has the advantage of simplicity,but would only differentiate very impreciselybetween social/non-profit and social/commercial cultivators.

On the other hand, the problems in makingsuch judgements on a case-by-case basis wouldbe just as intense. Police officers or prosecutorsor magistrates or juries would be required toanswer a hypothetical question about whether acannabis crop would have been sold for profitor simply to recover costs, had it not beenseized. Inevitably commercial cultivators wouldrun a defence of social supply whenever theywere arrested. These difficulties strengthen thecase for applying a simple but transparentweight limit below which any seizure is deemedto relate to social cultivation. A threshold mightbe set at 250 grams (or about nine ounces), forexample. This would result in a degree of tacittoleration of social/commercial growers whoseoperation was on a small scale, of course.

Thus one might end up with a set ofprocedures where any seizure of herbal cannabisweighing less than an ounce was deemed torelate to cultivation for personal use, and wouldresult in confiscation and on-the-spot warning.Any seizure relating to plants weighing morethan one ounce but less than nine ounces wouldbe deemed to relate to cultivation for socialsupply; this might result in confiscation, and acaution or a fine. The offender would of coursehave the right to contest in court a charge ofsocial cultivation, arguing that the seized plantswere all for personal use.

These arrangements would be perfectlyconsistent with the UN conventions. Whether

they are consistent with the government’sdetermination to crack down on cannabisdealing is another matter.

Commercial cultivation

We identified two sorts of commercialcultivator: those who restricted their operationto supplying their friends – but nevertheless didso to make money; and those who operated on alarger scale, as a straightforward commercialventure. The government’s decision to reclassifycannabis has very direct implications for thehandling of personal and social cultivation, andwe have discussed these at some length.Whether it implies any change in the responseto commercial or even semi-commercialcultivation is questionable, however.

There are extraneous factors forreconsidering the official response tocommercial cultivation. First, there areconsiderations about public confidence injustice. It will be remembered from Chapter 2that the Court of Appeal upheld a 21-monthprison sentence for an offence involving thecultivation of around 400 grams (or 14 ounces)of cannabis for sale to friends (R v. Lawrence

Dibdin, 1999). The appellant had no relevantprevious convictions; his motivation wascommercial, though his activities were restrictedto supplying his friends. It is unknown whetherthe general public would regard this sentence asconsistent with the recent statement by the LordChief Justice that domestic burglars shouldreceive a non-custodial sentence on their firstconviction. However, our guess is that mostpeople – and especially most young people –would regard the sort of social/commercialcultivation that featured in this case as a less

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serious offence than domestic burglary.Second, it is important that policy takes

account of the interactions between differentelements of the illicit drugs market. A toughresponse to commercial cultivators of cannabiswill drive out the risk-averse, and leave themarket to more criminal and risk-tolerantoperators. It may prompt a convergence of ClassA drug markets and cannabis markets. There isa case for driving as large a wedge as possiblebetween the cannabis market and thoseinvolving the sale of heroin and crack. This hasbeen the rationale for the Dutch system forseveral years. It is understandable that thegovernment should package its proposals forreclassification of cannabis alongside acrackdown on dealing. However, a sensibledrugs policy would aim to treat cannabissuppliers less like suppliers of Class A drugs,not more like them.

Medical growers

We have said little in this discussion about thosewho grow cannabis for use by those withmedical conditions, such as multiple sclerosis,whose symptoms are alleviated by the drug.The government’s current proposals associatedwith reclassification do little to address theproblems of the medical grower. The difficultyis that the proposed British approach is one of‘grudging toleration’ in which people arewarned, and have their cannabis confiscated. Ifone accepts to any degree the arguments forusing cannabis for medical purposes, then theconfiscation of cannabis grown or held for thesepurposes must seem simply mean-spirited.

In the middle term it obviously makes sense– as is being done – to test and develop cannabis

plants or cannabis-based drugs for medicalprescription. Once this has been done, thegovernment would need to move cannabis fromSchedule 1 of the MDA Regulations to Schedule2, thus permitting supply and possession formedical purposes. Rescheduling in this waywas proposed by the Independent Inquiry.

In the meantime, considerable numbers ofpeople will continue to cultivate and usecannabis for medical reasons. In doing so, theywill continue to resent with some intensity acriminal justice system that they regard asunfair in its treatment of medical cultivation ofcannabis. Recognising that there would be atime lag before plants with consistent dosagesmight be developed, the Independent Inquiryrecommended that in the intervening periodthere should be a defence of ‘duress ofcircumstances on medical grounds’ forpossession, cultivation and supply of cannabis.There would appear to be a strong case formoving beyond this position, to state explicitlythat possession and cultivation of smallamounts of cannabis for medical purposes willbe tolerated.

We discussed in the previous chapter howCanada has already introduced a system thatpermits medical cultivation. So too have anumber of American states. What is needed issome arrangements whereby the possession ofsmall amounts of cannabis (whether bought orcultivated) can be medically sanctioned. TheCanadian approach provides a model.

Beyond reclassification: reassessing the UN

conventions

The previous chapter showed that the Britishproposals are fairly cautious in relation to some

39


European and Commonwealth countries. Theyinvolve little more than reducing some of theharms associated with criminalising cannabisuse. Possession and cultivation will remainillegal; when discovered, cannabis will beconfiscated, and the offenders will be warned.Prosecution will remain an option for persistentoffenders and for those whose possession isdefined as ‘aggravated’. The proposals fall wellwithin the terms of the UN conventions.

We have no doubt that there are risksassociated with cannabis use, just as there arerisks associated with alcohol use (WHO, 1997;Witton, 2001b). There are problems associatedwith short-term toxicity – not least those to dowith driving whilst under the influence ofcannabis. Heavy use can occasionally triggerpsychiatric problems, and very persistent usecan result in dependence. The favoured mode ofdelivery – smoking – poses cancer risks and cancause other respiratory problems. Any rationalsociety would want to contain these risks asmuch as possible. The policy issue is not whether

the risks should be contained, but how best to do

so.

The UN conventions are premised on theview that countries’ criminal justice systemsprovide them with the best means of doing so.The emphasis is on prohibition backed bycriminal sanction. Increasingly, however,developed countries are reaching the conclusionthat the costs in criminalising cannabis useoutweigh the benefits, and that otherapproaches need to be developed. Regulation,coupled with education and harm-reductionmeasures, looks a promising option. At pressthe Swiss proposals travel furthest down theroad to legalisation of cannabis.

This paper has examined how policy on

cultivation of cannabis might be developed inorder to be consistent with the government’scurrent stance towards possession offences. TheBritish proposals – if they were adapted toinclude the suggestions in this chapter aboutcultivation – probably take us as far as possiblewith the room for manoeuvre that theconventions allow. However, there are alreadyexamples of greater toleration of cannabis insome parts of the country. For example, at leastone police division has an informal agreementnot to raid ‘coffee shops’ where cannabis isopenly sold and smoked.2 There are also British-based organisations which sell cannabis usingthe Internet. Toleration of these activities by theauthorities arguably places Britain incontravention of its treaty obligations.

If there is political will to move further awayfrom prohibition and to permit theseexperiments in toleration, then there are severaloptions. One is to ‘denounce’ – or withdrawfrom – the conventions. This is a legalpossibility, but it is not practical politics forBritain. The country has a long track record inencouraging compliance with a wide range ofUN conventions, and a volte-face on drug issueswould be politically embarrassing. There arealso more recent and specific factors, relating tothe ‘war on terror’. The alliance with the USgovernment is premised in large part on theassumption that this can help contain US actionto fall within United Nations mandates.Denouncing the drugs conventions wouldhardly help support this enterprise.

Another option is to exploit the ‘opt-outclauses’ in the conventions that allow a countryto deviate from their requirements if theseconflict with its constitutional principles. Wehave seen that Portugal justifies its form of

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decriminalisation in this way. Whilst thisstrategy may be practical politics for somecountries, critics will ask why it has takenalmost half a century to discover that the UNconventions conflict with their constitutions.The argument is particularly difficult to deployfor countries like Britain, where constitutionalprinciples are not formalised or codified to anysignificant degree.

This leaves a final option, which is toencourage a review of the conventions. Thequinquennial United Nations General AssemblySpecial Sessions (UNGASS) provideopportunities for this. At the last one, in 1998, theprohibitionist approach to drug control wasendorsed. The publication of this report willcoincide with the 2003 UNGASS. It is unlikelythat governments that are uneasy with thestraitjacket imposed by the conventions will feelable to voice their concerns, though campaigningNGOs (non-governmental organisations) willcertainly do so. However, there are alsocountervailing pressures. There could well beattempts by the ‘re-affirm’ camp to pass aresolution designed to slow down the trendtowards cannabis decriminalisation. Realisticallythis leaves the 2008 UNGASS as the arena inwhich more pragmatic approaches to drugcontrol might be considered. To make anyprogress on this front there would need to be apowerful coalition of European, Commonwealthand Latin American countries (see TNI, 2002).

Further research and monitoring

Too many research reports end with a self-serving call for further research, and we veryreluctantly add to the list. However, theconclusions of this report rest on a knowledgebase that is unacceptably slight. We need toknow how the cannabis market is evolving andhow it responds to enforcement. We certainlyneed to know what proportion of knowncultivators are cautioned, what proportion arecharged with section 4 (production) offencesand what proportion are charged with section 6(cultivation) offences.

We have argued that the aim of policyshould be to maximise the degree of separationbetween markets for highly risky drugs andthose for drugs with lower risks. Given thatcurrent policy, at least at a rhetorical level, is tocrack down hard on cannabis dealing, then it isessential to monitor whether this policy isactually turned into reality. If so, it is ofparticular importance to monitor whether thistriggers a convergence of Class A markets andcannabis markets in the way that we havepredicted. Important indicators of marketconvergence include the proportion of offendersarrested for trafficking offences whose recordincludes both Class A and cannabis offences,and regular reports from cannabis buyers aboutthe range of drugs that their seller can supply.

41

Chapter 1

1 The drugs legislation as framed by theMisuse of Drugs Act 1971 applies to England,Wales and Scotland. However, the legalsystem and arrangements for policing inScotland differ from those south of theborder. This report primarily addressespolicy for England and Wales but hasobvious relevance for the rest of Britain. Inparticular, the United Kingdom is signatoryto the UN conventions on illicit drugs.

Chapter 2

1 Official price calculations are likely tooverestimate street prices. The baseline figure(one-eighth) is likely to be factored up toprovide the costing for an ounce. However,when users buy in larger quantities, the priceusually decreases. It is not uncommon to buyan ounce of resin for under £60.

2 Poor-quality cannabis is often known as‘soap’ or ‘soap bar’.

3 The germination of seeds would count ascultivation, but the simple possession ofseeds is not prohibited by the MDA, as theseeds are not ‘cannabis’ as defined by section37.

4 Cannabis bush is a weaker strain of herbalcannabis.

5 Personal use here includes the sharing ofcannabis spliffs with friends, but not givingcannabis to friends for their subsequent use.

6 Dibden [2000] 1 Cr. App. R. (S.) 64.

Chapter 3

1 Although the seven-year sentence ismandatory, sentencers retain some discretionto impose lighter sentences in exceptionalcases.

2 Section 4(2)(b) creates an offence of ‘beingconcerned in the production’ of a controlleddrug that another person was producing. Ifthe seller of seeds or equipment could beshown to be aware of the buyer’s intention tocultivate, then they would be in breach of thelaw.

3 The court accepted that the offender soldcannabis only to friends, but it was equallyclear that his motivation was commercial.

4 Young people will still be dealt with throughreprimands, final warnings and prosecutionunder the provisions of the Crime andDisorder Act 1998.

Chapter 4

1 The conventions are readily accessible athttp://www.incb.org/e/conv.

2 However, the conventions do not allow forthe status of the offence to be downgradedfrom criminal to adminstrative.

3 As will be discussed later, statutory

instructions to prosecutors to avoidprosecution verges on legalisation.

Chapter 5

1 Many common law countries, as well asFrance, the Netherlands and a few othercontinental countries, allow extensive

Notes

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discretion about enforcement decisions toboth police and prosecutors. In Switzerland,police and prosecutors expose themselves tocriticism or even disciplinary proceedings forfailing to proceed with viable cases whereasthose of German-speaking tradition are lesscomfortable with prosecutorial discretion(Killias, 2001).

2 Article 2 of Law 30/2000 states: ‘1 – Theconsumption, acquisition and possession forown consumption of plants, substances orpreparations listed … in the preceding articleconstitute an administrative offence’(http://www.ipdt.pt).

3 The argument is that ‘criminalisation clasheswith “basic concepts of our legal system”,expressed in the above-mentioned principlesof subsidiarity or ultima ratio of criminal lawand proportionality, whose corollaries are thesub-principles of necessity, appropriatenessand prohibition of excess’ (PortugueseNational Drug Strategy, 1999).

4 The Australian Capital Territory (ACT) alsointroduced a similar scheme in 1992 wherebycannabis growers caught growing fewer thansix plants were given an administrative fineof $A100 – so that they did not have acriminal record – and the plants wereconfiscated.

5 There are reports on cannabis websites thatthe number of plants was reduced to three in1999, restored to ten plants and reduced toone plant in 2002 (e.g. www.hemp.on.net).

6 In practice, the Canadian police may wellexercise discretion when faced withborderline cases.

Chapter 6

1 Especially in Article 3, paragraphs 2 and 4.

2 However, the owners were informed that ifthe police received any complaints regardingthe café, they would take action.

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Documents

A growing market - JRF · A growing market The domestic cultivation of cannabis Mike Hough, Hamish Warburton, Bradley Few, Tiggey May, Lan-Ho Man, John Witton and Paul J. Turnbull