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Scotland: Cannabis users will be warned rather than prosecuted to free up police time
Glasgow Evening Times
Thursday 10 Dec 2015
The change in enforcing drug laws is part of a major overhaul of how officers handle petty offending to free up police and prosecutors’ time.
Scottish officers will next month start issuing new "Recorded Police Warnings" to many of the tens of thousands of people a year found committing minor offences such as carrying cannabis, urinating in the street or petty shoplifting.
Senior police sources stress they are looking for a "proportionate" and "effective" disposal to the kind of offences that until now would either result in a fixed-penalty notice or a report to the Crown Office that ended either in no proceedings or a fiscal warning.
The change in tactic means that - for the first time - casual users of cannabis can expect to avoid the stress of a formal report to fiscals that - in recent years - has rarely resulted in anything more than a written rebuke.
One source said: "We think a warning on the spot - from an officer using his or her discretion - is much more effective than a letter in the post months later saying nothing will be done.
"This means that officers will not have to spend their time writing standard prosecution reports and can do police work instead."
The new recorded police warnings scheme, formally to be introduced on January 11, replaces a series of adult police warnings used in different ways across the the old eight legacy police forces.
Only a "low thousand" number of adult warnings were issued every year in Scotland. None of them were for drugs offences.
The new-look warnings will never be used for violent or sexual crimes. Essentially, sources say, they are for the roughly 45 per cent of offences that, when reported to the Crown Office, do not result in a full prosecution through the courts.
The Crown bases its decisions on whether to prosecute on so-called "Lord Advocate's Guidelines" that are not in the public domain.
Recorded police warnings will also rely on such secret guidelines.
That means insiders are unable to say exactly how much of cannabis would constitute "a small quantity" that would be likely to be dealt with through a police warning.
In other jurisdictions, such as the Netherlands, there are clear and published rules on how much cannabis can be carried for personal use without risk of prosecution.
Law enforcement sources, however, stress that Scottish officers will be expected to use their discretion over how to treat somebody caught with, for example, a joint.
So a user having some cannabis in a car or in the presence of children may be treated quite differently from somebody who posed no risk to others.
One drugs expert, briefed about the move by police, told The Herald the police approach was "commonsensical" and an important step towards proportionate enforcement of UK-wide "war on drugs" laws that are beyond the control of Holyrood.
Police in England and Wales have had the option of issuing a formal warning for "possession" of cannabis since 2003.
Some drug users are, however, arrested south of the border, if, for example, the are smoking in public or near children.
There were 31,632 recorded offences of "possession" of all kinds of illegal drugs, including cannabis, in Scotland in 2014-15 and more than 3000 of "possession with intent to supply".
Crown sources stressed that the recorded police warnings would only apply to a small proportion of possession offences - and none for supply.
Estimates of how many Scots use cannabis vary but surveys suggest at least one in four have consumed the drug at least one.
Speaking generally about the new warnings, Chief Superintendent Brian McInulty, of Police Scotland’s Criminal Justice division, said the scheme would "provide a consistent, swifter, more effective and efficient way of dealing with low level offences earlier in the process than the current processes allow for".
He added: "Many incidents are capable of quick resolution without the need to submit a formal report to the Procurator Fiscal.
"Officers will be able to deal with incidents and offenders there and then, which is beneficial to everyone."
Mr McInulty stressed that the recorded warnings would not affect the traditional informal warning - when an officer advises a member of the public about conduct that may be on the borderline of criminality.
The new disposal should, however, result in fewer fines and far fewer standard prosecution reports.
He said: "The disposal options now open to them start with a verbal warning, a Recorded Police Warning, a Fixed Penalty Notice and ultimately officers may still submit a formal Standard Prosecution report to the Crown Office and Procurator Fiscal Service, depending on the circumstances and nature of each incident or crime."
The new warnings can be handed out to anybody over 16 - rather than 18 for the little-used adult warnings.
The Herald understands that under-18s receiving a warning will be reported to the children's hearing system, but on "concern" rather than offending grounds.
Police insiders admit that the new warnings represent a "massive cultural change" and that may take years to bed in.
The Scottish Police Federation, which represents rank-and-file officers, has previously warned constables were losing their discretion under a target-drive culture that aimed to see tickets issued for offences like public urination.
Senior officers believe constables will now have to show they can assess situations more carefully before deciding whether to issue one of the new warnings.
They will have to judge whether, for example, a so-called Section 38 offence - threatening behaviour - warranted a warning or a report. Police sources said any shouting or abusive behaviour that involved an aggravation - such as hate speech or domestic abuse - would not be suitable for a warning.
Equally, they signalled that professional shoplifters would expect to be treated differently than, for example, somebody than a hungry pensioner caught stealing food. Police Scotland has been referring some shoplifters to foodbanks for some years.
Officers will issue the warnings as paper slips. A copy will be recorded in the force's IT system for two years.
Such disposals, crucially, are officially considered an "alternative to prosecution" and do not amount to a criminal conviction or constitute a criminal record.
Some warnings will be issued retrospectively rather than on-the-spot. That means warnings could be used for people detained on suspicion of a more serious offence but who were subsequently found to have only been involved in something minor, such as a breach of the peace.
Crimes and offences that result in such a warning will continue to be recorded so the new measure will not affect offending statistics.
The new warnings will not, at first, apply to road traffic offences. However, The Herald understands that Police Scotland will be looking to expand the scheme in to motoring. That could pave the way for some motorists committing minor offences to get formal warnings before penalty points that, ultimately, could cost them their licences.
The Crown Office did not discuss the kind of offences included in the new warnings but stressed the the scheme being introduced in January was an "update" of existing, if little-used, police powers.
He said: "This system, and the updated guidelines, gives police the discretion to issue a warning for offences which they consider to be very minor in nature. They will not be used for any offence of violence.
"This system provides a mechanism that is timely and proportionate, avoids the need for the preparation and submission of a standard police report, and enables the Procurator Fiscal and court to focus on more serious crimes while giving police the range of powers they need to respond quickly and appropriately to very minor offences."
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