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Use Supply Drugs
“Conduct should only be criminalised when it causes harm”. Discuss with reference to the criminalisation of the use and supply of drugs.
Packer argues that there are two conditions which need to be satisfied in order to justify criminalisation. These are that the conduct must be wrongful and it must be necessary to use the criminal law to censure or prevent such conduct. Since the Human Rights Act 1998, it must also be permissible to criminalise the activity in order not to contravene the ECHR.
Wrongfulness, however, can be interpreted in different ways, from immorality to causing harm to others and even causing harm to the actor. There is a strong argument to support the premise that “conduct should only be criminalised when it causes harm”. There are however many differing views and theories on when certain actions should be criminalised.
This essay will examine Mill’s ‘harm principle’ and the offence principle as well as legal moralism and paternalism. These ideas will be examined particularly in relation to the nature and difficulties of the current drug legislation on use and supply in contrast to ‘commodities’ that some may argue are just as, if not more, harmful than drugs such as alcohol and tobacco.
Mill supports the above statement, asserting that “the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others”. Mill’s ‘harm principle’ appears non controversial but, when examined in details or put it into practice, it becomes blurred and problematic. It can be difficult to define exactly what “harm” means in the context of cases; whilst murder, theft and rape are quite obviously harmful, there are numerous borderline cases.
Examples include speeding or making a bomb which, whilst perhaps not harmful per se should, as a matter of public policy, be categorised as criminal activities so as to prevent harm. In practice, often just the risk of harm can be sufficient for criminalisation with speeding, driving under the influence of alcohol and legislation covering drugs being examples. An important consideration is that even if conduct meets the harm criteria, the response could perhaps be heavy handed.
The implication of the ‘harm principle’ is that harm to the person who performs the act is not considered to be justification for criminalisation mainly because it infringes the autonomy of the individual. However, Kaplan in “The Role of the Law in Drug Control” identifies several categories of harm that can be criminalised even though at first glance they seem only to cause harm to the perpetrator.
The argument here is that by their actions, drug users expose others to a “public ward harm” i.e. that the cost of repairing any damage caused will be imposed on others. In the thorny issue of illicit drug use, leniency by the authorities is interpreted as sending out dangerous signals to suggestible or vulnerable individuals (especially the young) who may be influenced to become users and then suffer harm.
This is a significant risk; whilst it may be possible for some to use Class A drugs over many years without ill effects or dependency, the more likely scenario is addiction with all the health and social consequences. This highlights the limits in Mill’s principle.
It could be argued that the criminalisation of some conduct ultimately causes more harm that if it were legalised. In the example of drug use, those in favour of legalisation cite the benefits of control of supply and content of the substances that would impact positively on public health. Comparison is made with the legalisation of abortion which meant that women no longer had to resort to the dangers and exploitation inherent in the back street abortion which often, as in the case of misuse of illicit drugs, posed a significant risk to their health, often resulting in death.
Conversely, the argument against legalisation cites the negative effects on society. An example often used is the more lenient attitude that was taken for users of cannabis which is now identified as the cause of mental health problems in regular users.
Connected to the harm principle is the offence principle, the reasoning behind which is that any conduct that grossly offends others should be criminalised. The focus has shifted from direct harm to the actor or others to causing great offence. Feinburg argues that conduct is offensive when it affronts the sensibilities of others. It is vital though that it should be serious offence as it would be ridiculous to criminalise everything that offends anyone. The Law Commission Paper highlights how it is likely that there will always be at least one person who is offended by a certain activity and to criminalise it would result in “everybody’s autonomy [being] severely and unacceptably curtailed”.
An alternative as the main reason of criminalising certain conduct is paternalism; the protection of harm to oneself, drug using being a key example. Certain drugs are perceived to be harmful to the taker and so the supply and possession of such drugs is criminalised. However, it has been argued that paternalism is used inconsistently as a justification for such control. Currently, the Misuse of Drugs Act 1971 categorises illegal drugs in three classes, A, B and C and it may be assumed they are classed according to seriousness and the risk of harm to the user.
Surprisingly, though, the House of Commons Science and Technology Committee report places magic mushrooms, which are not considered addictive or harmful, in Class A, whilst alcohol and tobacco, which cause “approximately 40 times the total number of deaths from all illegal drugs combined” remain legal. One could argue against paternalism by saying that people should be able to shape their own lives.
A central reason in favour of drug prohibition is immorality. There has been much debate on the extent to which the criminal law should reflect and enforce moral values. Legal moralism is the strongest argument against criminalising conduct which only causes harm and it is unpopular with most criminal law theorists. It would involve the criminalisation of activities that could be
considered immoral, examples being prostitution, homosexuality or consensual acts of violence. Feinburg explains how the legal moralist believes that it “can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offense to the actor or to others”.
Lord Devlin, a strong believer in legal moralism, in his 1959 Maccabean Lecture in Jurisprudence of the British Academy, entitled “The Enforcement of Morals”, argued that immorality is a necessary and sufficient condition of criminalisation, asserting that “society may use the law to preserve morality in the same way it uses it to safeguard anything else if it is essential to its existence”. His argument centred on society’s ‘moral fabric’ and that if the criminal law does not respect and enforce the moral societal norms then society will degenerate into chaos and anarchy.
The ideas expressed in his lecture were in response to the Report of the Wolfenden Committee on Homosexual Offences and Prostitution in which it had been recommended that homosexuality should no longer be an offence on the grounds that it is not for the criminal law to intervene in the private lives of citizens or enforce particular morals. Devlin asserted that immorality was what the ‘right minded’ person considers to be immoral and if particular conduct evokes feelings of disgust and indignation in such an individual then it should be subject to criminal sanction.
In the case of Brown, in which consensual sadomasochistic activities took place, the House of Lords held that to inflict consensual violence was a criminal offence. One of the main reasons for this is that such behaviour is inherently wrong and “uncivilised” and should not be allowed. A similar view is often taken with drugs with Wilson arguing that “drug use is wrong because it is immoral and it is immoral because it enslaves the mind and destroys the soul” and Bennet stating that “The simple fact is that drug use is wrong”. However, it is quite difficult to pinpoint exactly what it is that makes drugs immoral, especially when alcohol and tobacco are just as dangerous but not viewed in as negative a light although public opinion suggests that this is changing.
The central argument against this idea is that it is incompatible with individual autonomy with very liberal minded theorist opining that people should be able to do whatever they want. Moral standards are often controversial and change over time as values differ. In addition to this, while there is an argument to suggest that the law is stronger when the criminalised conduct is seen by the majority of people as immoral, modern legislation suggests that it is not a prerequisite. This is seen in the Road Traffic laws which, although they are not likely to be labelled as immoral, are vital to protect road users and pedestrians from harm and no one would object to their existence.
In conclusion, it is clear that there are many issues to consider before criminalising conduct. Clarkson and Keating express the idea that for conduct to be criminalised, “…it is not enough in our submission that [it] is… regarded as immoral. Nor is it enough that it should cause harm. Both of these are minimal conditions…but they are not sufficient”. This is a commonly held view that emphasises the need for legislators to take other factors, social policy for example, into account as well when deciding whether to criminalise, or for that matter legalise, certain conduct.
Drugs are a clear example of a “social problem” and are frequently associated with theft, violence and criminal damage (harm to others). They can cause serious harm to the actor through health problems, which can prove fatal, and loss of opportunities in work and education as a result of dependency. In addition, it appears that many regard it as immoral. In this way, the use and supply of drugs appears to straddle the three main views of wrongfulness and so their criminalisation is, to an extent, justified.