The law on drugs: Learning the hard way

Last December the Government dropped its proposed amendment to Section 8 of the Misuse of Drugs Act, but charities remain concerned. They could be prosecuted at any time, and find it hard to get funds. By Mathew Little.

In December 1999 at King's Lynn Crown Court, Judge Jonathan Haworth handed down a sentence that sent a tremor of dread through the voluntary sector.

He jailed Ruth Wyner and John Brock of the Wintercomfort charity in Cambridge for five and four years respectively.

Theirs was a drug offence, but they were not users or dealers. Their crime was to "knowingly permit" the sale of heroin at a day centre for the homeless in the city.

An undercover police operation had led to the arrest of eight dealers.

The prosecution argued that Wyner, the director of the charity, and Brock, the day centre manager, had known what was going on but hadn't done enough to stop it.

The case at once outraged and petrified charities working with homeless people and drug users. Workers who would normally expect honours from the State were now threatened with prison. Would just doing their jobs become a criminal activity? Charities up and down the country hastily rewrote their rules to crack down on drug use on their premises, and open-door policies became closed-door policies. Some centres introduced CCTV cameras to spy on their clients. One housing organisation insisted on a urine test before allowing people to stay.

The injustice of Wyner's and Brock's plight - they were given harsher prison terms than some of the dealers netted in the same police operation - became a cause celebre. The Cambridge Two, as they became known, were released on appeal just over 200 days into their sentence. But it was a bittersweet victory - the appeal court refused to quash their convictions, warning that, "no one, however well-intentioned, can with impunity permit their premises to be used for the supply of Class A drugs."

Proposed law changes

For the next three years, charities nervously walked the legal tightrope without further prosecutions. But then in 2003, the storm clouds darkened again. The Home Office, announcing changes to the 1971 Act under which Wyner and Brock were convicted, actually proposed to harden the law rather than relax it.

Section 8 of the 1971 Misuse of Drugs Act had made it illegal for people managing premises such as homeless hostels to knowingly permit the production and supply of all illegal drugs, or the smoking of cannabis and opium.

But ministers now wanted to go further and update the Act to cover the use of all controlled drugs. Charity workers would have to stop any drug use occurring on their premises or face the risk of going to prison. For those working with homeless people - 80 per cent of whom are drug users - it presented an impossible bind.

Agencies reacted with horror. Umbrella body Homeless Link said that organisations could be forced to operate outside the law and lose their charitable status.

Many feared the alternative was to become an arm of the police.

This time the Government listened. A moratorium was announced on the implementation of the amendment while the Home Office gauged the effectiveness of antisocial behaviour legislation in shutting down crack dens.

But it was not until last December that the threat was finally lifted.

Amid a raft of pre-election anti-drugs measures in the Drugs Bill, ministers quietly sanctioned the repeal of the amendment to Section 8. "The Government is clear that those who work in the drug treatment and homelessness sector should not be penalised in engaging and providing services for hard-to-reach and vulnerable groups," said a Home Office statement.

So five years on from the Cambridge Two convictions, charities find themselves back where they were in 1999. But according to drugs policy consultant Kevin Flemen, the reality on the ground is much improved. The authorities have held back from ordering the clampdown that many feared - not a single charity worker has been prosecuted since the Cambridge case. "The situation is as good now as it has been for a long time," says Flemen. "Provided you are attempting to work legally the chances of prosecution are vanishingly slim. And that slim chance can be further reduced by a good relationship with the police."

Learning from the past

Agencies have learnt from the Wintercomfort case, Flemen argues, and are unlikely to find themselves so perilously on the wrong side of the law. "What most agencies are contending with and what Wintercomfort contended with are two different things, he says. Wintercomfort was held up because of, in the eyes of the police, the sheer scale of supply. They were saying, 'essentially you lost control of the building, you were intimidated by dealers, but despite this there were measures available to you that you were unwilling to use'."

Provided agencies nip isolated outbreaks of dealing in the bud through exclusions or a warning system, the police will not feel the need to step in and launch undercover operations as they did at Wintercomfort.

Wyner and Brock also left themselves open to prosecution by not enforcing their own rules consistently. Dealers were banned for long periods, only to be videoed by the police back on the premises just a week later. The motive was honourable - they were concerned about one dealer who was injecting into her neck and groin - but, fatally, it enabled the police to suggest they were soft on dealing.

"You have got to have a robust drugs policy," cautions Martin Goodwin, development officer of Homeless Link. "Most important - and this is where Wintercomfort fell down - it should be a flexible policy that you interpret rigidly rather than a rigid policy you interpret flexibly. You can set bans between 12 hours and 12 months. If people are doing things that are really unsafe then you can work with them because you have the flexibility."

Many housing providers and homeless hostels, at first stung into self-protective caution by Wintercomfort, are again feeling the boundaries of the law and reaping benefits for their clients, says Flemen.

Dealing must still be stopped without exception, but drug users can be helped without indulging the fantasy that they will suddenly stop once they enter a charity's care."Rather than saying 'we accept you for treatment but don't use in the building', what they are able to say is, 'if you are using you won't be penalised for use on site provided you don't do it in an unsafe way," says Flemen. "If you breach health and safety by leaving uncapped needles around we'll come down on you and if you supply in the building we'll come down on you. But provided you limit it to quiet enjoyment, we'll work with you.' That has meant that people who previously weren't housed are now being housed and having better acknowledgement of their drug use."

But the memory of Wintercomfort still casts a shadow over a sector fearful of being criminalised along with the people it is trying to help. Martin Blakebrough is director of the Kaleidoscope Project in Kingston, which runs one of the few open- access drop-in centres in the country offering care to "chaotic drug users" - people who will take any drug they can get their hands on. Many will inevitably deal as well.

He says Kaleidoscope operates on the cusp of illegality, reliant on the reluctance of the authorities to pursue the letter of the law, which could change any time. "If you're inviting the kind of people we do into our service, then you're breaking the law," he says. "It's like opening a pub and expecting no one to buy a round. My staff are vigilant and that has satisfied the police in Kingston. But it might not satisfy the Cambridgeshire police. That's an unsafe situation. If I opened up in Cambridge, I would be anxious."

But even if projects such as Kaleidoscope secure the indulgence of the local constabulary, they still have to persuade the infamously risk-resistant funding community that they are deserving of support. And, post-Wintercomfort, this has become increasingly difficult. "Because we are involved in this grey area of the law, people have an excuse not to fund us," laments Blakebrough.

"The big thing that has been most affected by Wintercomfort is the cutting edge of day centre facilities or drop-ins. That has been pretty well decimated."

Ultimately, money talks, and even Kaleidoscope is reviewing its open-door policy because it simply can't attract funding from the local council or the Government.

Out of touch

With the Government's rethink on the Section 8 amendment, charities are also saddled with a law drafted more than three decades ago, when the pattern of drug use was very different. In 1971, ecstasy and crack cocaine did not exist, but cannabis was seen by the Heath government as a subversive threat to the nation's youth. Charity managers face the bizarre situation that it is cannabis smoking (together with the now virtually extinct smoking of opium) rather than the abuse of more serious Class A drugs that they are legally obliged to stop on their premises.

Responsibilities have not been eased by the reclassification of cannabis as a Class C drug. Users feel less constrained about smoking, but managers still have the penalty of a 14-year prison sentence looming over them if they allow it to happen.

Flemen has drawn up 'cannabis protocols' to help assuage fears. These are three-cornered agreements between the charity, the police and the service user. The charity agrees to ensure there is no dealing or nuisance to the local community, while reminding the smoker that it is illegal.

In return, the police agree not to prosecute. One protocol has already been signed between the Julian Housing project in Norwich and the Norfolk police.

The voluntary sector responded to Wintercomfort by howling injustice, but has now settled into an edgy calm. The Government shows no signs of wanting to disturb the peace, but the fact remains that the law that sent Ruth Wyner and John Brock to prison remains on the statute book and can be activated at any time. "The work of charities is to provide a safe environment for a very chaotic group - drug users," says Blakebrough.

"It's the job of the police to arrest and prosecute people who are trespassing the law. What the Wintercomfort case has done is to say, 'no, it's not the responsibility of the police, it's the responsibility of the agency providing the service'. But you can't mix the two roles. We can't be policemen and charity workers."

WHAT THE LAW SAYS

- Under Section 8 of the Misuse of Drugs Act 1971, it is illegal for managers of premises, including charity hostels or residential homes, to knowingly permit the production or supply of any controlled drug, or the preparation and smoking of opium, or smoking of cannabis.

- Ruth Wyner and John Brock of the Wintercomfort homelessness charity in Cambridge were jailed in 1999 under Section 8 for not taking "reasonable steps" to stop heroin dealing at the charity's day centre.

- An amendment to the Criminal Justice and Police Act 2001 extended the scope of Section 8 to cover all controlled drugs. But it was never enacted and the Government's new Drugs Bill, published last December, promises to repeal it.

- The Anti-social Behaviour Act 2003 gives the police power to close down premises if they believe they are being used for the production or supply of Class A drugs. But the premises also have to be associated with "disorder or serious nuisance". So the Act is unlikely to apply to voluntary sector projects.

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