Justice: Decriminalisation of personal drug possession

Ministerial submission

To: The Home Secretary

Issue

1. Possession of a controlled drug for personal use is a criminal offence under section 5 of the Misuse of Drugs Act 1971. Approximately 100,000 possession offences are recorded in England and Wales each year. Despite sustained criminal enforcement, approximately one in eleven adults in England and Wales used a controlled drug in the past year, according to the Crime Survey for England and Wales — among the highest rates in Europe. Drug-related deaths have risen for two consecutive decades; Scotland’s rate of over 20 deaths per 100,000 population is the highest in Europe. This submission concerns whether continuing to treat personal drug possession as a criminal offence is consistent with a public health approach to drug-related harm.

Background

2. The Misuse of Drugs Act 1971 classifies controlled substances into three categories by assessed harmfulness. Possession of a Class A drug (including heroin, cocaine, MDMA, and LSD) carries a maximum sentence of seven years’ imprisonment; Class B (including cannabis, amphetamines, and ketamine) five years; Class C (including GHB and anabolic steroids) two years. In practice, custodial sentences for first-time personal possession offences are uncommon; a range of pre-charge diversionary disposals — Cannabis Warnings, Community Resolutions, and conditional cautions — allow police to resolve possession cases without prosecution. The Advisory Council on the Misuse of Drugs (ACMD), the statutory independent advisory body, recommended in 2023 that possession of all controlled drugs for personal use should be decriminalised.

3. International experience provides directly relevant comparators. Portugal decriminalised personal possession of all controlled drugs in 2001: possession of up to a ten-day personal supply is treated as an administrative rather than criminal matter, with referral to Dissuasion Commissions empowered to impose non-criminal sanctions or treatment referral. Portugal’s drug death rate subsequently fell to among the lowest in Europe, at approximately four deaths per million population against an EU average of twenty-two. Oregon voted to decriminalise all drug possession in 2020 but reversed the measure in 2024 following a significant increase in drug-related deaths; proponents of the original reform attribute Oregon’s failure to the absence of the treatment infrastructure and sustained health investment that made the Portuguese model work, rather than to decriminalisation in principle. Germany legalised possession of up to 25 grams of cannabis in 2024; Canada legalised cannabis nationally in 2018.

4. Your government has not adopted a position on decriminalisation. The Scottish Government has formally requested a transfer of legislative competence to pilot decriminalisation in Scotland; that request has not been granted. This submission responds to those pressures and to the sustained increase in drug-related deaths by setting out the options available.

The General Case

5. The case for reforming the criminal framework rests on four grounds:

• (a) fifty years of criminal enforcement have not reduced UK drug use, which has remained persistently high by European standards; the deterrence case for criminalisation is not supported by the evidence;
• (b) a criminal record for possession creates lasting harm in employment, housing, and international travel that is disproportionate to the offence and inconsistent with treating drug use primarily as a health problem;
• (c) enforcement of possession offences falls disproportionately on disadvantaged communities and ethnic minority groups; Black people are approximately eight times more likely to be stopped and searched for drugs than White people, despite similar use rates across ethnic groups according to the Crime Survey;
• (d) the resources directed at possession prosecution and incarceration would, if redirected to treatment and harm reduction, produce better public health outcomes per pound spent.

6. The case against reform rests on equally substantial grounds:

• (a) criminal prohibition provides a social and legal signal of unacceptability; decriminalisation or legalisation risks increasing use, particularly among young people, by weakening that signal;
• (b) the Oregon experience demonstrates that removing criminal sanctions without adequate treatment investment can worsen rather than improve outcomes; the conditions for the Portuguese model’s success — universal healthcare, a functioning dissuasion system, sustained public health investment — may not be replicable in England and Wales at the required scale;
• (c) the United Kingdom is a signatory to the UN Single Convention on Narcotic Drugs 1961 and the Convention on Psychotropic Substances 1971; legalisation would breach those treaty obligations and require either renegotiation or withdrawal, with consequences for the United Kingdom’s broader international drug enforcement cooperation.

Options

Option A: Retain the criminal framework

7. Under this option, possession of a controlled drug for personal use remains a criminal offence under the Misuse of Drugs Act 1971. The existing range of diversionary disposals continues. No primary legislation is required. The government may issue revised guidance to police forces on the use of diversionary disposals to reduce the number of cases reaching prosecution without altering the underlying criminal status of possession.

8. For:

• (a) preserves the legal and social signal that drug possession is unacceptable, without the risk of increased use that decriminalisation or legalisation carries;
• (b) avoids the treaty complications of any formal reform and the political risk of being perceived as weakening the response to drug use;
• (c) revised guidance on diversionary disposals can achieve many of the practical benefits of decriminalisation — reduced prosecutions, reduced criminal records — without requiring legislation.

9. Against:

• (a) the evidence that the criminal framework deters drug use is weak; use rates have not declined during fifty years of enforcement and are higher than in many comparable European countries with less punitive approaches;
• (b) continuing to criminalise possession while relying on informal diversion creates an inconsistent framework in which outcomes depend on which police force processes an individual rather than on any principled national standard;
• (c) the drug death statistics — particularly in Scotland — represent a sustained public health failure that the current framework has not addressed.

Option B: Decriminalise personal possession

10. Under this option, personal possession of controlled drugs up to a defined threshold quantity — following the Portuguese model, a ten-day personal supply — is reclassified from a criminal offence to a civil matter. Possession above the threshold, and all supply offences, remain criminal. An individual found in possession would be referred to a Drugs Dissuasion Panel — a multi-agency body empowered to impose non-criminal sanctions or treatment referral — rather than to the criminal courts. The Misuse of Drugs Act 1971 would require amendment; the supply-side criminal framework is unchanged.

11. For:

• (a) removes the disproportionate consequence of a criminal record for personal possession while maintaining criminal sanctions for supply, separating the public health treatment of users from the criminal treatment of dealers;
• (b) the Portuguese model demonstrates over two decades that decriminalisation, combined with investment in treatment and harm reduction, can substantially reduce drug deaths and drug-related infectious disease;
• (c) creates a consistent national framework that replaces the current postcode lottery of diversionary disposals with a statutory referral process, ensuring that all individuals found in possession are directed toward appropriate support.

12. Against:

• (a) the Oregon reversal demonstrates that decriminalisation without adequate treatment infrastructure does not in itself reduce drug-related harms; drug and alcohol treatment services in England have faced sustained real-terms reductions in funding, and the treatment capacity required to support effective referral would need significant investment;
• (b) decriminalisation leaves the supply chain in criminal hands; users continue to purchase from illicit markets with no quality control, exposing them to adulterated and increasingly potent substances — including fentanyl, which accounts for a growing proportion of drug deaths;
• (c) threshold quantities are difficult to calibrate in a way that is both operationally workable and resistant to exploitation by supply-side actors; a ten-day supply varies enormously in volume and value across drug classes.

Option C: Legalise, regulate, and license

13. Under this option, cannabis and later possibly other drugs would be removed from the schedules of the Misuse of Drugs Act 1971 and made subject to a statutory licensing and regulation regime. Licensed producers, wholesalers, and retailers would be authorised to produce and sell to adults; the product would be subject to potency limits, packaging requirements, and age verification comparable to the alcohol licensing framework. Personal possession within defined quantities would be legal for adults. Possession and supply of unlicensed drugs, and all other controlled drugs, would remain criminal. This option creates a legal market for the most widely used controlled substances while retaining criminal sanctions for other drug classes and for unlicensed supply.

14. For:

• (a) removes supply from criminal markets almost entirely, enabling regulation of product strength, packaging, and sale conditions that decriminalisation cannot achieve, and directing revenue currently accruing to criminal networks to the Exchequer through excise duties;
• (b) Canada’s national legalisation of cannabis in 2018 and regulated markets in multiple US states provide extensive operational evidence that a statutory licensing regime is administratively and commercially viable;
• (c) beginning with cannabis — the most widely used and, by the ACMD’s own assessments, least acutely harmful of the commonly used controlled drugs — limits the scope of the reform while establishing the regulatory architecture that could be extended to other substances if the evidence supports it.

15. Against:

• (a) legalising cannabis production and supply would breach the United Kingdom’s obligations under the UN Single Convention on Narcotic Drugs 1961, which classifies cannabis as a Schedule IV substance; proceeding would require treaty withdrawal, renegotiation, or acceptance of treaty breach, each carrying significant diplomatic cost (though this has not stopped the USA);
• (b) Canadian and US state evidence indicates that cannabis use, including among young people, increases following legalisation; the association between high-potency cannabis and psychosis warrants careful assessment before a settled view on net welfare impact can be reached;
• (c) a legal market does not displace illicit supply entirely; in Canada and US states, unlicensed cannabis continues to be sold partly because licensed product carries tax that makes it more expensive; the extent to which criminal supply is displaced is therefore a function of pricing and tax policy, and criminal markets may persist even under legalisation.

Resource and Cost Implications

16. Option A involves no material cost beyond revised guidance to police forces. Option B would require primary legislation and the establishment of a national Drugs Dissuasion Panel infrastructure, but the dominant cost would be the expansion of drug treatment commissioning necessary to support effective referral at scale; this investment would need to be assessed against the savings from reduced prosecution and incarceration. Option C would require primary legislation, a new regulatory body or an extension of an existing licensing framework, and a transition period for the legal market to develop; excise revenues from licensed cannabis sales would partially offset costs, on the basis of Canadian and US state revenue data, but the quantum is uncertain and the design of the tax and pricing regime will determine how far the legal market displaces criminal supply.

Legal and Devolution Considerations

17. Drug classification under the Misuse of Drugs Act 1971 is a reserved matter across the United Kingdom. Criminal justice in Scotland is substantially devolved, but the definition of criminal offences under the MDA is reserved; the Scottish Government cannot decriminalise possession unilaterally, which is why it has requested a transfer of legislative competence or a pilot authorisation. Any reform under Options B or C would apply to England and Wales; separate legislation or Orders in Council would be required to extend reform to Scotland and Northern Ireland, or to authorise devolved administrations to operate their own regimes, which would itself raise questions of consistency across the United Kingdom.

18. The principal international law constraint on Option C is the UN Single Convention on Narcotic Drugs 1961. Cannabis is a Schedule IV substance under the Convention; legalising its non-medical production and supply would breach Articles 4 and 36. The United Kingdom could seek to renegotiate its treaty position, follow the Bolivian precedent of formal withdrawal and re-accession with a reservation, or proceed in breach and accept the diplomatic and cooperative consequences. Canada and several US states have proceeded in breach without formal renegotiation, but the United Kingdom’s role as a permanent member of the UN Security Council and a leading contributor to international drug enforcement cooperation makes the diplomatic cost of that approach higher than for those jurisdictions. Decriminalisation under Option B does not breach the Convention, which requires that possession be subject to a penal sanction but does not specify that the sanction must be criminal in character.

Requested direction

19. Ministers are invited to determine whether the current criminal framework for personal drug possession is consistent with a public health approach to drug-related harm; and, if not, to indicate whether decriminalisation of personal possession (Option B) or legalisation and licensing beginning with cannabis (Option C) should be developed in detail, including the treatment investment and treaty implications that each option entails.