LORD ADVOCATE: No one measure will reverse the appalling levels of drug-related deaths

Dorothy Bain QC., Scotland’s Lord Advocate – possession and supply are important distiction.

By Bill Heaney

The causes of drug-related deaths in Scotland are complex, and the reasons why people take drugs are complicated. No one measure will reverse the appalling levels of drug-related deaths, according to Dorothy Bain, the Lord Advocate, Dorothy Bain QC., who was speaking in the Holyrood parliament for the first time since her appointment.

She added: “However, the criminal justice system has a role to play in reducing the harms that are caused by drugs to our communities, both in terms of disrupting the activities of drug dealers and in ensuring that, where appropriate, help is offered to vulnerable individuals.

“There is a significant distinction to be made between those who are involved in the supply of drugs and who are the drug dealers who destroy communities, and the vulnerable individuals who are addicted to drugs for a variety of reasons, many of which relate to real difficulties in their background, significant problems in their childhood and vulnerabilities that are not of their own making.

“There is therefore a significant distinction to be made between what I am talking about today, which is possession of drugs, and supply. It is an important distinction.

“My point is that it is important that the criminal justice system respond appropriately to individuals who are caught in possession of drugs.

“Diversion [from prosecution] represents an opportunity to engage with potentially vulnerable individuals in a productive way that attempts to address the causes of their offending and to prevent re-offending.

“Diversion is a criminal justice response; it is not a replacement for community treatment and support. Recorded police warnings are a criminal justice response and not “de facto decriminalisation”.

“The success of diversion is dependent on a number of factors. They include the quality of the information that is provided to prosecutors regarding the individual’s background and potential vulnerability; engagement by the individual; and availability of effective diversion schemes.

“The establishment of Community Justice Scotland provides significant opportunities to enhance use of diversion across Scotland and to establish a consistent approach to the availability of diversion schemes that are tailored to people who are experiencing drugs or alcohol issues.

The Lord Advocate added: “The Scottish Parliament indicated, first, that it would support a review of guidance on recorded police warnings and, secondly, that a statement on the principles and practicalities of diversion would be beneficial.

“I recognise the extent of the public health emergency that we face in Scotland and the ability of prosecutors to help.

“In Scotland, prosecutors act as the gatekeepers to the criminal justice system and, subject to some limited exceptions, it is the duty of the police to report a case to the prosecutor when they believe that there is sufficient evidence that an offence has been committed. It is then for the prosecutor to decide what prosecutorial action—if any—is in the public interest.

“One of those limited exceptions to reporting to the prosecutor is the recorded police warning scheme, which provides officers with a speedy, effective and proportionate means of dealing with low-level offending.

“Officers may choose to deal with low-level offences by issuing a recorded police warning. As the Lord Advocate, I issue guidelines to the police in relation to the operation of the scheme, including which offences may be considered for a recorded police warning.

“The guidelines are set by me, acting independently of any other person. They extend beyond drug possession offences and are therefore properly confidential.

“However, I can confirm that the guidelines previously permitted the police to issue recorded police warnings for possession of class B and C drugs.

“At the time of the debate on 17 June, the guidelines were already under review. The review examined drug possession-only case outcomes. I have considered the review, and I have decided that an extension of the recorded police warning guidelines to include possession offences for class A drugs is appropriate. Police officers may therefore choose to issue a recorded police warning for simple possession offences for all classes of drugs.

“In confirming the extension, I wish to make four things clear. First, the scheme extends to possession offences only; it does not extend to drug supply offences.

“Robust prosecutorial action will continue to be taken in relation to the supply of controlled drugs. Secondly, recorded police warnings do not represent decriminalisation of an offence; they represent a proportionate criminal justice response to a level of offending and are an enforcement of the law.

“Thirdly, neither offering nor accepting a recorded police warning is mandatory. Police officers retain the ability to report appropriate cases to the procurator fiscal, and accused persons retain the right to reject the offer of a warning.

“Finally, neither offering a recorded police warning nor reporting a case to the procurator fiscal prevents an officer from referring a vulnerable person to support services.”

“On that final point, prosecutors, working with fellow members of the drug deaths task force, have played an important role in the development of a pilot scheme to support such referrals.

“The scheme launched in Inverness at the beginning of July 2021 and is led by Medics Against Violence. The purpose of the scheme is to refer individuals to a mentor for the provision of support at the first point of contact with police. Such support is available whether or not an individual is subsequently reported for a criminal offence.

“I am aware that the term ‘diversion’ is used in many different contexts, so I will describe the long-standing Scottish system of diversion from prosecution. When any case is reported to the procurator fiscal and there is sufficient evidence, prosecutors will apply the principles that are set out in the published Scottish prosecution code.

“Prosecutors will exercise their professional judgment and will identify what prosecutorial action—if any—is in the public interest. In identifying the appropriate outcome in the public interest, prosecutors take into account a range of factors including the nature of the offending, the circumstances of the accused and, when relevant, the impact on any victim.

“The range of options that are available to prosecutors includes formal warnings, financial penalties, diversion and prosecution. There is no one-size-fits-all response; each case will be considered on its own facts and circumstances.

“Diversion is an alternative to prosecution. It is a process by which prosecutors are able to refer a case to social work or another identified agency as a means of addressing the underlying causes of offending, when that is deemed the most appropriate course of action.

“In 2019, the then Lord Advocate reviewed prosecution policy and directed that diversion should be considered for all individuals who are reported to the Crown Office and Procurator Fiscal Service when an identifiable need has contributed to the offending that can best be met through a diversion scheme. Prosecutors will consider all the circumstances and will determine an appropriate outcome in the public interest.

“When the prosecutor is satisfied that the public interest would be best served by an offer of diversion, they refer the individual to social work or another agreed agency, which then assesses whether the person is suitable for diversion and reports the assessment to the prosecutor. It may be that a person is assessed as being unsuitable for diversion—for example, when they have declined support or require no intervention. In those cases, prosecutors will then decide what alternative action—if any—is required.

“When a person is assessed as being suitable, prosecutors refer the individual for diversion. Any decision to prosecute the person is normally deferred until completion of a diversion programme of support. Any diversion programme should be tailored to the needs of the individual and should provide an opportunity to meet the underlying causes of their offending and, ultimately, prevent re-offending.

“At the conclusion of the diversion programme, the results are reported to the prosecutor. When the programme has been successfully completed, the prosecutor will routinely decide that no further action is required, and that is the end of the matter.

“Following the 2019 review of prosecution policy by the then Lord Advocate, the number of diversions offered for single-charge possession cases increased significantly, from 57 in 2017-18 to 1,000 in 2020-21. The increase in the past year alone represents a doubling of offers of diversion, despite the challenges posed by the pandemic.

Not every individual who uses drugs will be suitable for or require diversion. Some accused persons will face simply a warning or a fine, which might be an appropriate and proportionate response.

“Approximately two thirds of people who are reported to the Crown Office and Procurator Fiscal Service when the only offence reported is possession of drugs are dealt with by alternatives to prosecution, and the vast majority of those people are offered a financial penalty.

“Any alternative to prosecution—a warning, fine or diversion—is an offer only, and an accused person always has the right to reject such an offer.

“There will be cases in which prosecution is the appropriate response in the public interest. When an accused person is subsequently found guilty, the courts have a range of sentencing disposals that are appropriate to the individual accused and offence.

“The range of options that are available to police, prosecutors and courts reflects the fact that, in Scotland, there is no one-size-fits-all response to an individual being found in possession of a controlled substance or to an individual being dependent on drugs.

“The most appropriate response—the smartest response—in any drugs case must be tailored to the facts and circumstances of both the alleged offence and the offender.

“Scotland’s police and prosecutors are using the powers available to them to uphold the law and to help to tackle the drug deaths emergency.”

The SNP’s Secret Scotland tactics came into play even in this, about the drugs death numbers, and the Tories called them out for that.

Jamie Greene (West Scotland) (Con) said:  “The statement came through a little bit late, which is reflective of the fact that the Government gave no indication of the nature and content of today’s statement, despite its being a relatively major policy shift.

“I believe that Parliament rightly needs to scrutinise the gravity of a decision such as the one that has been made today. I believe that it should be the subject of a full debate, not the question-and-answer session that we have.

Scotland’s drug deaths crisis is our national shame, but surely the way to tackle it is by improving access to treatment and rehabilitation, not by diluting how seriously we treat possession of deadly class A drugs such as heroin, crystal meth and crack cocaine, which are the scourges of our streets and our society.

“The answer to our drug deaths crisis is treatment, not de facto decriminalisation by the back door, as is the case today. Sadly, nothing that has been said in today’s statement will stop drug deaths or guarantee access to the needed treatment that our proposed right to recovery bill will call for.

“There is a fine balance between possession of drugs and drug dealing. How are police officers expected to enforce the new guidance? What consultation did the Government have with Police Scotland before the announcement of the decision today? Will Parliament get a say on any of this, with a full and proper debate on the matter and a full and proper vote on a decision of such importance and magnitude?”

Labour’s Claire Baker welcomed the statement from the Lord Advocate and recognise “her commitment to supporting a proportionate and reasonable response to the drug deaths crisis in Scotland”.

Shed told MSPs: “The Lord Advocate will be aware of the growing support for safe consumption rooms. I ask for clarity on whether anything in the statement will enable their establishment on a more formal footing. As she described, we know that it is not enough to do what is done now in isolation, and that diversion from prosecution needs to be backed with access to services on the ground and good links with police and services.

“I notice from the notes that diversion as an outcome has doubled in the past year. What discussions has the Lord Advocate had with partners to ensure that there are enough resources to deliver on that? Can she confirm that Police Scotland is already familiar with the recorded police warning scheme and that her announcement relates to an extension of that scheme?”

Ms Bain replied: “I confirm that the police are familiar with the recorded police warning scheme, which has been in place in Scotland since 2016. The police are aware of the change in guidance that I have provided in relation to class A drugs, and of the extension that I have described in relation to recorded police warnings.

“The extension of recorded police warnings is not linked to any proposal to establish drug consumption facilities. That is an entirely separate proposal to the recorded police warning scheme, which is designed as part of a proportionate criminal justice response to lower-level offending.

In relation to availability of suitable support following diversion, I understand that that is in place and has been significantly supported by Criminal Justice.

“There has been significant involvement of the criminal justice system and there has been engagement through the Crown Office and Procurator Fiscal Service and prosecutors. The appropriate agencies that deliver the schemes will assist with rehabilitation of those who have been dependent on drugs. In those circumstances,

“I am confident that the step that I am taking today, which relates to diverting, by virtue of the recorded police warning system, individuals from prosecution for possession offences, will assist in the process that is under way to bring to people who need them help and support to get off drugs and to become useful members of the community.”

Speaking after he responded to the Lord Advocate’s statement, Scottish Liberal Democrat leader Alex Cole-Hamilton MSP said:  “Scottish Liberal Democrat requested this statement back in June, and I was grateful to see her here today, despite the empty answer.

“The government has insisted for years that diversion has been an important response, but we’ve just discovered today that it only happened 57 times in 2017/18.

“The number of people imprisoned for possession only is the same now as the number we saw a decade ago. The SNP are failing to turn policies into practice once again.

“Thousands of children are affected by parental imprisonment and drug misuse. It is time the SNP starts acting and effectively supporting these families.

“Today’s statement cannot be the be all and end all of reform. We need safe consumption rooms and serious policy reform as demanded by Peter Krykant and others alongside the Scottish Liberal Democrats.”

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