POLICE DIVIDED ON WHEN DRUG USERS ARE 'IN PUBLIC'

A SERIES of costly legal actions are expected after the reclassification of
cannabis as users begin court challenges against the police.

The challenges are expected as cannabis users dispute police decisions to
arrest them instead of giving them on-the-spot verbal warnings.

Police forces in England, Wales and Northern Ireland are following advice
from the Association of Chief Police Officers (Acpo) on when users should be
arrested but are aware that the wording is vague enough to be open to
challenge.

Acpo believes that court rulings will help to define how police should
operate when they find people in possession of small quantities of cannabis
for their own use.

Some of the wording of the guidance is so imprecise that even members of
Acpo staff have trouble providing clear definitions. Asked whether a person
who smoked cannabis in private, perhaps in his garden, could be regarded as
being "in public view", a spokesman replied: "I can't tell you exactly. The
officer will have to make a judgment. We are aware there will be test cases
and the courts will judge whether they (the police) are right or wrong.

Only in Scotland are the rules clear because officers there have no power to
issue on-the-spot warnings. Instead, they must detain offenders, take them
to a police station where they are arrested and reported to the Procurator
Fiscal who will take the decision on further action.

However, with cannabis being downgraded from Class B to Class C, the number
of written warnings from the Crown Office and Procurator Fiscal Service is
expected to rise.

In a move that emphasised the zero tolerance approach in Scotland, the first
"cannabis cafe" to open in Edinburgh was immediately raided by police. Three
people were arrested and charged with possession.

In the rest of the UK, a survey by The Times shows, police officers are
being encouraged to use their new powers to issue the offender with an oral
warning. Nevertheless, the exceptions to the "presumption against arrest"
have caused many forces difficulty.

Caroline Emberton, a spokeswoman for Lancashire Police, highlighted concerns
that the Acpo guidance contains "grey areas". Lancashire has decided that
"in public view" equates with "openly displayed" which means users could get
arrested for smoking inside their homes if seen through a window, and that
"vicinity" means "within eyeshot at least". Police in Manchester have a
similar interpretation of "vicinity" but understand "in public view" as
needing to be both "seen by the public"and being a "nuisance".

Inspector Bill Lloyd, a drugs prevention officer with Greater Manchester
Police, said: "Someone smoking on a street corner and nobody ever sees him
will come under the guidelines and get sent on his way. If someone is
smoking in their garden but you get someone else complaining about it, then
we would have to act.

Definitions of terms such as "in the vicinity of" were left so vague that Mr
Lloyd expects the force to be challenged.

At Durham Constabulary, Alan Troman, a former officer now employed to
interpret legislation, said it was immediately apparent that parts of the
guidelines were vague and imprecise.

"We don't like the expression "in public view". Where are you, for example,
if a person is standing at his front window in his own house smoking
cannabis?"Durham officers have been told that the criteria they should apply
are whether the offence was in a "public place" rather than in private. Even
so, they are encouraged to use their discretion and if an adult was spotted
by an officer smoking cannabis in a deserted park he could receive a warning
rather than be arrested.

Detective Superintendent Alec Wood of Lincolnshire Police said: "The
guidelines do not classify what "public view" is. The intention is if it's
openly in the street or openly in the view of people who are passing. That's
the intelligent view we are hoping our officers will take.

Similar problems with terminology apply to the exception that allows
officers to arrest "repeat offenders".

Gloucestershire Constabulary and South Yorkshire Police operate a
three-strikes-and-you're-out policy while Humberside permits a single
warning. But while some forces have decided to set a maximum number of
warnings before arrest is triggered, most prefer to leave the decision to
the officer on the street.

A spokesman for City of London said: "We are not being that prescriptive to
say two strikes and you're out. It could be one warning, it could be seven.
It will be up to the officer.

A further exception to being sent away with a warning is when a user is
caught in an area where there is a specific "locally identified policing
problem".

One such area is Landor Road in Brixton, South London, where everyone found
with cannabis is arrested during an operation to eradicate dealers from the
area. Brixton is in the Borough of Lambeth where a pilot "softly softly"
scheme operated in the run-up to reclassification.

Assistant Chief Constable Adrian Lee, of Staffordshire Police, said the
difference between being arrested or warned should often be judged by the
harm offenders could be doing. On that basis an officer's decision to arrest
someone in possession of cannabis can even be precipitated by a glance at
his wrist watch.

Mr Lee said: "If young people are coming out of school and are likely to see
someone smoking cannabis, that would warrant arrest. If it's unlikely the
children would see it, I would say we don't need to arrest and we will give
that person a warning.

Superintendent Mick Macguire, of South Yorkshire Police, welcomed the lack
of precision. He said: "It's very much a judgment call on the ground.

Frank Brookes, a Baptist pastor from Brixton, won permission in a court
yesterday to bring a legal challenge against the policy of issuing
warnings.He can take his local police chief and Acpo to court, claiming the
non-arrest policy flouts Parliaments intentions.

The law and cannabis Cannabis remains an illegal drug, with possession
punishable by up to two years in prison

Possession of cannabis is an offence for which a person can be arrested and
taken to a police station

In England and Wales, the presumption will be that anyone aged 18 and over
caught with a small amount will not be arrested

The person's name and address will be taken, he or she will be warned and
the drug confiscated. Effectively, this puts on to a formal basis how many
officers dealt with possession of small amounts of cannabis before the law
was changed last Thursday

Cannabis possession, though illegal, is not considered a policing priority,
but guidance by chief constables in England and Wales outlines when a person
aged 18 and over may be arrested

Smoking cannabis in "public view" could lead to arrest. The phrase "public
view" is not defined and it is left to the discretion of the individual
police officer

A person who the local police know has repeatedly been dealt with for
possession of cannabis may also be arrested. There is no definition of
"repeated offending"

Possession of cannabis near premises used by young people will lead to
arrest; possession in areas where cannabis is causing problems may lead to
arrest

For people under 18, the use of cannabis is an arrestable offence. They
would be taken to a police station and given a formal warning by a senior
officer. A second offence would lead to a final warning, a third a
reprimand, and a fourth a prosecution. However, the police have discretion
to press for charges at any of these stages if they believe that the
possession and use of the drug has been flagrant

Children under ten found with cannabis are considered "at risk" and will be
referred to social services

In Scotland, different rules apply. Police will detain a person, take him or
her to the station, arrest him or her and send a report to the Procurator
Fiscal

BOX:

How police forces vary

Hull - One warning before arrest Scotland - Zero tolerance South & West
Yorkshire - Two warnings in 12 months Nottinghamshire - Arrest still likely
in private Staffordshire - Two warnings in 12 months Aberystwyth - A few
hours in custody likely Gloucester - Two warnings before arrest Dorset - Two
warnings before arrest Landor Road, Brixton - Zero tolerance City of London
- - Up to seven warnings