Can Scotland solve the drugs deaths crisis without decriminalisation?

It is a crisis as bleak as it is familiar, with the 1172 people losing their lives to drug misuse in 2023 added to the figure of more than 14,000 deaths since 2000.

Familiar, too, is the notion that this failure lies solely at the feet of the Scottish Government.

Yet while it is fair to say that the sheer scale of drugs deaths is a distinctly Scottish problem – we continue to have far higher rates of deaths than other European nations – it is plainly one for which the Scottish and UK Governments share responsibility.

As numerous experts told the Sunday National, the reform of key UK-wide legislation must be put on the table if Scotland is truly to be helped in stemming drugs deaths.

The Misuse of Drugs Act

THE Misuse of Drugs Act came into force in the UK in 1971 and criminalises among other things the possession of “controlled drugs” such as cannabis, cocaine, heroin, ecstasy, LSD and many others.

In simple terms, it allows police to charge anyone found in possession of illegal drugs no matter how small the amount.

“Criminalisation obviously harms people,” said Alex Stevens, a professor in criminology at the University of Sheffield.

“It’s intended to. The whole point of punishing people is to inflict harm upon them.

“And those harms extend throughout the system from the moment someone is stopped and searched to the moment they’re fined or imprisoned.”

READ MORE: Scottish drugs deaths figures: Numbers rise year-on-year in new data

This punitive landscape has defined the way in which illegal drugs are used and policed across the UK for more than 50 years.

In that time, drugs haven’t disappeared from our streets or become more difficult to get a hold of.

Figures show that millions of UK citizens simply aren’t deterred from taking drugs due to their illegality.

However, criminalisation is known to deter people from another activity - seeking help. 

The “grey areas” of Scotland

SIMON McLean is a former police officer who spent 28 years in Strathclyde Police.

“This is in the 1980s when heroin was all over the place,” he told the Sunday National.

“I set up the drugs unit in Govan, worked in the surveillance unit at Pitt Street. Around half my career was undercover work.”

McLean said that during his time as a police officer, he wasn’t against laws criminalising the possession of drugs.

“The drug laws are a fantastic investigative tool,” he said.

“The powers of stop and search, of arrest, of detention, they’re all very useful to the police.

Police officers in Scotland are equipped with the life-saving medicine naloxone (Image: PA)

“But when I wrote my book about my time as a police officer, which was mostly about enforcement, I was asked during an interview what effect we’d had on drugs.

“I was very candid. We didn’t do any good.”

McLean is a member of the Law Enforcement Action Partnership (Leap UK), a group of more than 30 figures from the police, intelligence service, military and criminal justice system calling for major reform of the UK’s drug laws.

“There’s a real volume of disquiet amongst people in these professions,” said McLean.

“Because we know the prohibition of drugs simply isn’t working.”

According to McLean, police officers in Scotland are currently subject to a confusing landscape regarding enforcement.

READ MORE: Drug deaths Scotland: See the figures in your area

In 2021, Lord Advocate Dorothy Bain empowered police to allow those caught for possession of Class A drugs to be let off with a warning as they were already permitted to do so for Class Bs and Cs.

All officers also now carry naloxone, a drug which can save the life of someone overdosing on opioids.

Ultimately, however, possessing drugs remains illegal even if police and prosecutors have a certain amount of discretion regarding who they choose to punish for it.

“If you’re a police officer now and you catch someone just before they’ve injected, you can arrest them,” said McLean.

“But if you come across them 30 seconds later and they’ve overdosed, your job is now to save their life.

“There’s so many grey areas.”

Decriminalisation

THE Scottish Government has previously challenged the UK Government to decriminalise all drugs for personal use in a bid to tackle drug-related deaths.

Predictably, the Conservative government immediately dismissed the calls with then prime minister Rishi Sunak doubling down on his “tough stance” towards drugs.

But it’s a stance largely mirrored by the now Labour government, with Rachel Reeves stating that there are no plans to decriminalise either possession or supply.

“We know that criminalisation does little to deter drug use,” said Niamh Eastwood, executive director of Release, a charity which provides legal support, representation and advice to people with a history of drug use, particularly drug dependency.

“But what it can do is deter people from coming forward to seek help if they need it.

“And that applies whether we’re talking about an emergency situation or if someone is having a problem with their drug use.”

Health Secretary Neil Gray speaks to the media following the announcement of Scotland's 2023 drug death figures (Image: Andrew Milligan)

Eastwood pointed to a study which found 16% of students reported having had a “scary experience” with drugs where they did not call for emergency help for fear of punishment.

“Of course, nobody wants their children to use drugs,” said Eastwood.

“But do politicians really not want their own children to call an ambulance if they find themselves in harm’s way?

“I think understanding that might help unstick a bit of this problem.”

The problem is the reluctance of the UK Government to even consider any meaningful change to the Misuse of Drugs Act.

Eastwood and Steven helped co-author a report calling for the “modest” decriminalisation of possession in the UK, a move which they both said could aid in Scotland’s fight against drug deaths.

“It’s a simple change to the law,” said Stevens.

READ MORE: Five key points from Scottish drugs deaths figures

“There are just two subsections of the Misuse of Drugs Act which make possession a criminal offence.

“Our modest proposal is that those subsections be repealed.”

Eastwood added: “Policymakers often think that reforming laws is a huge task.

“But we’ve very much just focused on what would be the easiest way to achieve reform that will be expedient, and we need expediency because of the crisis in Scotland but also in England, Wales and Northern Ireland where we have increasing drug-related death rates.

“Politicians can overestimate just how much political capital would be spent on removing criminal sanctions for possession offences.

“But if we look at polling over the past decade, we’ve seen significant support for drug policy reform.

“There’s a consensus that the current approach has failed.”

There’s nothing pioneering about decriminalising the possession of drugs.

The UK would join Croatia, Czechia, Germany, the Netherlands, Italy, Portugal, Spain, and Switzerland who have all decriminalised drugs to varying degrees. And that’s just Europe.

Portugal, in particular, has had enormous success in reducing drug-related deaths since it decriminalised personal drug use in 2001.

Since then, drug deaths in the country have reduced by 80%.

“It’s not a silver bullet,” stressed Eastwood.

“We can’t absolutely say what the outcomes are when you decriminalise and do nothing else, and that is why we need to scale up low threshold access to treatment and harm reduction services.

“But the common position shared by researchers and international bodies, including numerous UN agencies, is that it means people are much more likely to come forward to receive help and that it does not lead to an increase in drug use.”

“Decriminalise people, not drugs”.

EASTWOOD said she had “sympathy” for the Scottish Government, who bear the brunt of criticism when it comes to drug deaths despite the evident limits of devolution. 

But she also stressed the need for local treatment systems to implement standards that the Scottish Government has championed.

However, McLean said he felt people had been failed by both Holyrood and Westminster.

He said: “The frustration with the Scottish Government is they make all the right noises, and they’ve taken some action with safe consumption rooms, but you can’t do these things in half measures.

“We’ve proved we can get round Westminster with safe consumption rooms. With a bit of guts and balls, and a real determination to help the Scottish people, we can do even more.

“What are they going to do? Send the army in for doing all we can to help people?”

READ MORE: Opening date for Scottish safe drug consumption room announced

He added: “With Westminster, I would have expected more from a Labour government.

“I understand the Tories, that’s ideology. But with Labour, I hoped we’d at least have an audience, be given a voice. That’s not happened.”

When it comes to decriminalisation, McLean said the debate needed to be shifted away from the notion that it was drugs rather than people being decriminalised.

“The drugs will be there forever,” he said.

“They’ve been there for thousands of years and no change in the law is going to get rid of them.

“We don’t decriminalise drugs. What we want to do is decriminalise people because that’s where the problems start.

“When you label someone a criminal, especially those who’ve become dependent on drugs, you push them away from help, support and advice.

“You cut them off from the very things we want them to take advantage of.”