Wider than expected discretion is revealed in guidelines for police on how to enforce revised cannabis laws.
The guidelines, to be published today and to take effect in January, are likely to lead to variations around Britain, according to how forces interpret them. They include giving police power to arrest anyone smoking cannabis in public.
But senior officers insist the official guidance means most of the 80,000 adults a year arrested and fined for simple possession will in future face only a warning and confiscation.
Drawn up by the Association of Chief Police Officers, the guidelines give each force much wider than expected discretion over how rigorously they enforce the laws. Small rural forces are likely to be much tougher than big city forces; the latter will concentrate time and resources on more dangerous class A drugs.
The home secretary, David Blunkett, announced 18 months ago his intention to reclassify cannabis from class B to class C, saying police would lose the power of arrest for simple possession except where there were aggravating factors. He asked them to instead concentrate on heroin, cocaine and crack cocaine.
The discretion also applies to repeat offenders. An earlier Acpo “three joints and you’re out” rule - under which users caught more than twice in a year would be arrested not cautioned - has been dropped. Instead, an officer may make an arrest “where locally the person is known to be repeatedly dealt with for possession of cannabis”.
Andy Hayman, chief constable of Norfolk, chairs the Acpo drugs committee and drew up the guidelines. He said that officers would retain a power of arrest for simple possession.
However, he said: “In the spirit of the home secretary’s decision to reclassify cannabis, the new guidance recommends that there should be a presumption against arrest. In practice, this means, in the majority of cases, officers will issue a warning and confiscate the drug. Officers will be expected to use their discretion and take the circumstances of each case into account.”
The guidelines do not specify the “small amount” that would limit the offence to simple possession, saying that weighing quantities in the street is impracticable and would only encourage dealers to avoid exceeding the limit.
Some feared that the guidelines might be used by more conservative chief constables to claw back their discretion on when to arrest. Mr Hayman said he believed they allowed police to focus on class A drugs - nevertheless, it remained illegal to possess cannabis. “It is an illegal drug but not a policing priority,” said an Acpo spokesman.
The guidelines do spell out “aggravating factors”:
- Smoking cannabis in public: Originally, arrest was reserved for “flagrantly” flouting the law by blowing smoke into an officer’s face. Now it is stated smoking in public is not in the spirit of reclassification and could undermine the drug’s illegal status.
- Repeat offenders: Where an officer is aware of a person repeatedly dealt with for possession of cannabis, he or she may arrest him or her.
- Local policing problem: Where a fear of public disorder is associated with cannabis use, the police may arrest rather than warn.
- Young people: Those aged 17 and under will be dealt with under the Crime and Disorder Act 1998, and not the guidelines - they will be arrested and given a formal warning. Adults with cannabis inside or near schools or premises used by young people will face arrest. Children under 10 with cannabis will be referred to welfare agencies.
According to the guidelines, when somebody is searched in the street and cannabis found, all the officer need do is ask “what is this?” and “whose is it?”, record the replies, and in the presence of the offender put the drug in a tamper proof bag, seal and sign it, and confiscate it.
MPs have yet to vote on changing the penalties for cannabis possession, but it is assumed the guidance will take effect on January 29.