Justice Secretary Chris Grayling has announced that in prisons there is to be a ‘crackdown’ on the use of ‘legal highs’ or ‘new psychoactive substances’ as he prefers them to be called. Grayling has called for ‘legal highs’, if found in a cell or in a prisoner’s possession, to be treated as seriously as if it were heroin.
Sky News obtained access to HMP Ranby in Nottinghamshire during an operation designed to tackle the problem, involving 60 National Crime Agency officers. Two main issues arose from the resulting report: an increased propensity for violence in those who take the drugs; and the adverse consequences to those%"0partakers’ health.
Staff at the prison have claimed that inmates under the influence of such drugs behave erratically and violently, displaying “incredible amounts of strength” and “aggression”; a claim which Grayling recognises as a potential cause of increased prisoner violence and resultant injuries to prison staff.
The Prison Governor Susan Howard is particularly concerned by the health risks of the drugs, stating that prisoners could suffer increased heart rates, strokes, or death.
Why then are these ‘new psychoactive substances’ increasing in popularity among prisoners? Primarily one would contend it is because they are incredibly difficult to detect. They are generally without odour, and sniffer dogs have yet to be trained in their detection. In spite of this there were 27 times as many seizures of ‘new psychoactive substances’ in 2014 as there were in 2010, increasing from 16 to 436.
Another temptation may be found in the colloquial term ‘legal highs’. This gives the impression that those who are caught with the substance will face no punishment as they have not committed an offence under the law. This would be appealing indeed for the habitual drug user who faces severe sanctions for possession of an illegal substance if so caught.
An announcement by Grayling of tougher sanctions for prisoners caught dealing or in possession of ‘new psychoactive substances’ is intended to change the perception that these drugs are without legal consequences. New powers to address the use of ‘legal highs’ in prisons will be outlined in guidance sent to Prison Governors by the Ministry of Justice later this week. The new sanctions consist of: prosecution; having a jail sentences extended by up to 42 days; segregation from other prisoners; confinement to their cells for 21 days; being placed in higher security prisons; and being banned from any physical contact with visitors.
One cannot help but entertain a hypothetical question: If traditional illegal drugs had been decriminalised, and perhaps subjected to some form of regulation, would the demand to circumvent the law by producing and consuming drugs which have similar effects but are in certain respects far more dangerous, have developed?
I would argue that there is a chance that it would not have. At present there is a seismic shift occurring in the production and consumption of recreational drugs. Traditional drugs (cannabis, cocaine, ecstasy, heroin, and LSD among others) now share the marketplace with ‘new psychoactive substances’ which are developed and released with such ingenuity as to leave legislators powerless to act with the speed requisite to stopping their spread.
The process enshrined within the Misuse of Drugs Act 1971 of criminalising and classifying individual substances based on (albeit a wildly inaccurate) assessment of the harm they cause, is unable to accommodate and add each newly concocted substance to the legislation with the necessary haste, as a subtle alteration in the chemical composition may render the drug different to its predecessor and thus not prohibited by the Act.
I suppose a logical solution would be to criminalise the effects of substances, or rather the taking or possession of a substance which induces a certain effect, rather than the substances explicitly. Such an approach would however be fraught with difficulty and impossible to prove objectively on a case by case basis. Alas the problem is most complex.
The issue with imposing criminal sanctions for the possession or supply of a substance which is not prohibited by law is clear. However this is less difficult to address in a prison setting. The prisoners would not be punished because they have in their possession a substance which is ordinarily prohibited by law, but because they have in their possession or are providing a substance which is prohibited by the terms of their imprisonment.
It is unclear on what charges prosecutions may be brought, whether they would be charges for associated offences, or explicit possession or supply charges for the ‘new psychoactive substance’ in question. The guidance which will be sent to Prison Governors will, hopefully, shed some light on the issue.
Increasing aggression, decreasing detectability, more harmful effects, and an inability for legislation to maintain pace with chemical creation and the market; has the ‘war on drugs’ been hoisted by its own petard? The outcome of the new measures in prisons will be of great interest.