Drugs: a user issue

Those members of the profession who have chosen to take holidays among the manicured golf courses and long sandy beaches of the Algarve are, I suspect, largely unaware that, until relatively recently, Portugal experienced a very large, and significantly increasing, number of its young people taking heroin and other drugs. And its imprisonment rates, always close to these of England and Scotland, continued to increase at a similar rate throughout the last decade of the 20th century.

Rates of reported heroin use, of drug-related HIV infections and of drug-related deaths continued to increase in a pattern familiar to that of Britain. Portugal, however, opted for a route entirely opposite to that of the United Kingdom.

An elite commission was set up in response to concerns about the rapidly rising use of drugs, principally heroin, in the 1990s, and delivered its report in 1998. The state recognised that imposing criminal sanctions upon drug users appeared to be doing little to address an increasing use of drugs amongst the poorest and most marginalised in society, and questioned whether another approach might be preferable.

The Commission recommended decriminalisation of the purchase, possession and consumption of all drugs for personal use, and with effect from 1 July 2001, the possession and use of drugs for personal consumption ceased to be a matter for the criminal courts.

At present, Portugal remains the only state within the EU to operate a specific policy of decriminalisation. While some states such as the Netherlands have elected not to penalise possession of certain drugs for personal use, they have not expressly removed all criminal sanctions in respect of drug possession from their domestic law.

How does decriminalisation operate?

At the outset, it must be noted that decriminalisation does not mean "legalisation"; drug use remains prohibited and subject to police action. However, in terms of article 2(1) of the Portuguese law, the consumption, acquisition and possession for one's own consumption of certain listed substances constitute "an administrative offence". The phrase "for one's own consumption" is defined by article 2(2) as a quantity not exceeding "the quantity required for an average individual consumption during a period of 10 days". Possession of a larger quantity than that remains criminal, and may be prosecuted as trafficking in a manner broadly analogous to the well-known provisions of s 5(3) of the UK's Misuse of Drugs Act 1971. In Portugal, though, supply of drugs to a minor or a person with a mental illness is expressly treated as an aggravating factor, resulting in sentence of four to 12 years' imprisonment.

The police remain involved in the apprehension process, although they may not arrest a person for possession alone. Where a person is apprehended and found to be in possession of, or using, one of the listed substances, the matter is referred to the local Commission for Dissuasion of Drug Addiction, which has extremely wide powers. Each of Portugal's administrative districts operates at least one commission.

Following apprehension, a citation is issued. Where the consumer of drugs is considered not to be addicted, the commission may issue a warning, he may be given a non-pecuniary penalty, or may, as a last resort, be fined a sum between €25 and the statutory national minimum weekly wage. In some cases, the commission may provisionally suspend proceedings without imposing any sanction. Sanctions may be suspended conditional on an offender seeking treatment; where an offender accepts addiction, whether or not they have prior offences, if they agree to accept treatment, then any sanction imposed will be contingent on them completing treatment.

Where the evidence before the commission discloses supply or an intent to supply, the matter is referred to the criminal court. Proceedings before the commission are expressly non-judicial, formal dress is not worn, all parties sit at the same level, and confidentiality is maintained.

Where an offender is found to be addicted, they may have their right to practise certain professions (including law, medicine and driving a licensed taxi) suspended, may be banned from visiting high-risk locales or associating with named individuals, and foreign travel may be prohibited. In addition, they may be required to report periodically to the commission demonstrating their ability to avoid ongoing drug misuse, an obligation broadly analogous to that required in Scotland where a court imposes a drug treatment and testing order, and in some circumstances certain public benefits may be terminated.

The bulk of cases reported to the commissions relate to possession and use of cannabis, with only a minority involving possession of heroin or cocaine. Between July 2001 and October 2007, 62% involved cannabis, 18% heroin, and 5% cocaine. Little over 6% of offenders were female, and 70% of offenders were under the age of 20. The increased use of therapeutic communities, detoxification centres and halfway houses, combined with a huge increase in the use of drug substitution treatment (up by 147% between 1999 and 2003), may indicate one reason why so many sanctions are suspended: figures from the Instituto da Droga e da Toxicodependência de Portugal (IDT) indicate more than 80% in most years.

The effects on drug consumption

In comparing reported rates of drug use, it is important to bear in mind one caveat that applies almost universally, and one particular to Portugal. Self-reporting of drug use is notoriously inaccurate, as for many reasons persons, especially those of school age, may feel under pressure to answer in a particular way regardless of its accuracy. Information in respect of drug use by youths is collected as part of the European School Survey Project on Alcohol and Other Drugs (ESPAD).

Several statistics appear to point towards reported rates of drug usage in Portugal now declining after previous significant increases. In 2001, the percentage of persons aged 13-15 reporting drug use was 14.1%; by 2006 it was 10.6%. Among older students, the figures were more striking. Between 1995 and 2001, the number of persons aged 16-18 reporting drug use increased from 14.1% to 27.6%, but by 2006 had declined to 21.6%.

Perhaps unsurprisingly, this decline is not found in the 19-24 age group, they being the group a larger proportion of whom had already begun consuming drugs before decriminalisation; however, younger people growing up since decriminalisation appear less attracted to illicit drug use than their elders, who grew up when possession and use was criminalised. The reported use of heroin in particular has declined by more than a quarter, from 2.5% to 1.8%.

These statistics, based as they are on self-reporting, may in themselves not be wholly convincing, but in respect of more seriously addictive drugs, other statistics demonstrate a similar picture. Between 2003 and 2006, there was a marked decline in the number of convictions for supply-related offences (IDT Annual Report 2006 (published 2007), 53). In 1999, between the original report and the passing of Law 30/2000, Portugal had the highest rate of HIV among intravenous drug users in the European Union. This has changed dramatically. The number of new reports of HIV and Aids among intravenous drug users has declined from close to 2,000 cases in 2000 to about 600 in 2006. Within the non-drug user group, the decline in the same period was from around 1,700 to 1,400 (IDT Annual Report 2006, 26).

While less notable, there has also been a decline in new reported infection of hepatitis B and C. Drug-related deaths and reported findings of drugs in post-mortem toxicology tests have also decreased significantly.

How does Portugal compare?

Levels of drug use in Portugal are among the lowest in the EU; the prevalence of cannabis use is the lowest of all EU states, while figures for cocaine and heroin are significantly below the EU average; in contrast, drug prevalence rates in the UK are consistently at or near the highest in Europe.

The relationship between drug use and crime, particularly acquisitive crime, is not in itself controversial, although questions of cause and effect, and the importance of external social factors, do make it more difficult to draw universal conclusions. However, at a time when imprisonment rates in Scotland, England and Wales sit at about 150 persons per 100,000 (World Prison Brief, International Centre For Prison Studies, King's College, London), Portugal now imprisons 104.

Comparing these present figures with those from 2004 seem to show that, during a period when the UK rate increased by more than 10%, the Portuguese rate declined by 15%. Obviously these figures have to be placed in the context that, absent specific details of all crimes proceeded against, comparison may well not be on a like-for-like basis. In 1999, the number of drug-related deaths in Scotland was 291 (General Register Office statistics). This figure has continued to rise, with the figure for 2009 being 479; indeed, the total number of drug-related deaths in the UK in 2009 was 2,182, an increase of 11.8% on the figure for the previous year (report by St George's, University of London, 24 August 2010).

The key question is, of course, whether the apparent Portuguese experience of reducing drug use among the young is unique, rare, or merely reflective of a more widespread European pattern operating also in countries that criminalise drug possession. Here, unfortunately, evidence is not conclusive. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) feels able to conclude that drug use has "stabilised in most areas". NHS Information Centre statistics for England & Wales (2008) noted a marked increase in reported drug use until 2004-05, followed by a "levelling off" in the next three years. (The statistical bases used in the 2009 report are different, but where comparison can be made, the pattern of the preceding three years seems to be maintained.)

In Scotland, while the rate of hospital discharges with a diagnosis of drug misuse has increased, the pattern appears to mirror that of Portugal; the increase is in the "25 years and over" group, with a decline noted in the younger groups (Drug Misuse Information Scotland Statistics 2009). Due to a change in the manner of data collection for the Scottish Drug Misuse Database in April 2006, it is not yet possible to identify particular long-term trends of drug use in Scotland with real certainty.

Looking to the future

The fear expressed by opponents of the reforms was that Portugal would become a haven for drug users from all over Europe, and that decriminalisation would result in a vast increase in drug misuse, with planeloads of users turning up safe in the knowledge that they could not be arrested or jailed. A BBC report on 22 January 2004 quoted Fernando Negrão, a former police chief and the head of the Institute for Drugs and Drug Addiction, as saying: "There were fears that Portugal might become a drug paradise, but that simply didn't happen." There does seem, from the statistics above, to be fairly strong evidence that since decriminalisation, drug users in Portugal are more willing to come forward and access medical services; the marked reduction in drug-related deaths and in new cases of HIV certainly seems to point to an increased willingness to submit to medical treatment at an early stage.

However, reports on the effects of the liberalisation policy do not provide much if any evidence of any changes in crime rates for acquisitive offences, so it cannot be said with any certainty from this research that decriminalisation has reduced non-drug-specific offending; more information on this than is found in some recent studies would be welcome.

Less tolerant policies in respect of drug possession likewise demonstrate at best mixed results. The United States of America operates fairly punitive drug policies, yet not only does it imprison a proportion of its population almost five times higher than that of the UK, its reported levels of drug use remain among the highest in the world, four times higher even than those in Colombia. On the other hand, expressly punitive policies in Singapore, which appear to have either effectively eliminated drug use or to have pushed it wholly underground, might be considered somewhat unworkable in a somewhat more liberal democracy where, for example, failing to flush a toilet after use and the selling of chewing gum, both prohibited there, are not criminal offences.

In addition, while evidence seems to show quite clearly that drug use is a much less popular choice for the young of Portugal than it was a decade ago, it is not wholly clear that Portugal is in practical terms bucking a European trend. Were there solid evidence of a reported significant reduction in drug use in Portugal, as against significant increases elsewhere in the EU, then it might be open to the impartial observer to conclude that the reduction was the effect of the action of decriminalisation. Instead, evidence collated by the EMCDDA and fairly recent NHS research both seem to show that, after many years of increase, drug use may, even temporarily, have peaked in Europe some years ago, and remains relatively constant now.

It must also be noted that Portugal is one of the less populous states of the EU, and that social trends are derived from analysis of a much smaller population base than Britain, Spain or Germany. Thus, while it may yet prove to be the case that decriminalisation has produced a measurable decrease in levels of drug use and of crime committed by drug users, the evidence is not yet conclusive.

Despite this, I would still submit that relevant authorities in Britain should continue to pay particular heed to developments in Portugal, especially with regard to the relative expense of supervision and treatment. In straitened economic times, where cuts in public spending take place across the board, it behoves the Crown and the legal profession to study all viable alternatives to the expense of prosecuting and sometimes imprisoning those more in need of help.

Douglas Thomson is a solicitor advocate and a consultant with McArthur Stanton, solicitors, Dumbarton

This is an edited version of an article which can be read in full at www.journalonline.co.uk/extras