Scots caught with class A drugs could escape with just a warning in legal shake-up

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Drugs - The Image Bank RF /GETTY IMAGES
Drugs - The Image Bank RF /GETTY IMAGES

Scots caught with class A drugs such as cocaine and heroin could escape with a warning instead of being prosecuted, under official police guidance that has been attacked as "de facto decriminalisation".

Lord Advocate Dorothy Bain told the Scottish Parliament she had decided to extend previous guidance allowing police to issue warnings to those possessing less dangerous drugs. Officers who catch someone with Class A substances will now have the option of issuing a recorded police warning (RPW), meaning the offender would not even have to pay a fine. The most serious classification of drugs also includes crystal meth, crack and ecstasy.

In a statement to MSPs on a new "diversion from prosecution" policy, Ms Bain insisted that RPWs "represent a proportionate criminal justice response to a level of offending and are an enforcement of the law".

But the Tories said the significant shift had the same practical impact as decriminalisation and was being forced through with no debate or vote at Holyrood.

Jamie Greene, the Tories' shadow justice secretary, questioned how the "back door" move would help tackle Scotland's record drugs death toll, which is now the highest in Europe.

The controversial decision by Ms Bain, Scotland's most senior law officer, comes after it emerged that the backlog of court cases that has built up during the pandemic will not be cleared until 2025.

Ms Bain, who was appointed Lord Advocate by Nicola Sturgeon in June, told MSPs she independently set the police guidelines determining which offences could be considered for an RPW.

Although these are confidential, the QC confirmed that they previously permitted police to issue warnings for Class B and C drugs. These include amphetamines, cannabis and anabolic steroids.

But she told MSPs the guidelines had been reviewed and that an "extension of the recorded police warning guidelines to include possession offences for Class A drugs is appropriate".

Ms Bain said "robust prosecutorial action" would continue to be taken for drug dealer supply offences and insisted RPWs "do not represent decriminalisation of an offence".

The police keep the warning on file for two years and it can be taken into account if the culprit commits another crime.

The Lord Advocate also noted that it was not compulsory for police to offer a warning, and they could still report "appropriate cases" to the procurator fiscal.

'Scotland's drug death crisis is our national shame'

Prosecutors can then refer people accused of drugs offences for "diversion", where they are dealt with by social work teams or other agencies rather than the criminal justice system.

Angela Constance, the SNP's drugs policy minister, welcomed the announcement. She said: "These warnings provide a tool for police officers to use when they encounter someone in possession of drugs.

"However we must do more to make the most of these interactions, ensuring this is combined with appropriate referral pathways, to help those at most risk access lifesaving treatment and support."

But the Tories contrasted Ms Bain's claim drug possession was not being decriminalised with Police Scotland guidance, stating that RPWs "seek to have a positive impact on individuals by not criminalising them".

Mr Greene said: "The Scottish Parliament must have a say with a full debate and vote on this topic, not just a quick Q & A session. We need to fully scrutinise the gravity of a decision of such importance and magnitude.

"Scotland’s drug death crisis is our national shame but the way to tackle it is improve access to treatment and rehabilitation, not to dilute how seriously we treat possession of deadly drugs like heroin, crystal meth and crack cocaine."

He added: "The answer to our drugs crisis is more access to treatment, not this de facto decriminalisation by the back door of drugs that are the scourge of our streets and our society."

Scotland last year suffered a record 1,339 drug deaths, the highest rate in Europe and more than three-and-a-half times the rate across the UK as a whole.

Ms Sturgeon admitted during this year's Holyrood election campaign her Government had taken its "eye off the ball", but has insisted it was a "national mission" to cut fatalities.

Several police forces in England are using or developing their own diversion programmes.

Although the vast majority of possession offences do not result in a prison sentence, people caught with a Class A drug can be punished with a seven-year jail term and a large fine.

Police Scotland said it took a health-led approach to addressing drug death and the change in RPW guidance "gives officers another tool to support those at risk of becoming vulnerable in our communities".

Assistant Chief Constable Gary Ritchie, the force's head of drug strategy, said formal warnings would still appear on criminal records and persistent and serious offenders would still be reported to prosecutors.

Annemarie Ward, chief executive of drug recovery think tank Favor Scotland, said: "Diversion from prosecution will prevent many people who really need help and support from being forced through our criminal justice system. It should allow people who are caught in addiction to get into treatment, instead of being sent to jail."

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