Tough Choices

The Drug Interventions Programme has been extended to encourage more individuals who misuse drugs to seek treatment. Titled Tough Choices this programme involves Testing on Arrest, Required Assessment and Restriction on Bail.

From the end of March 2006 Testing on Arrest and Required Assessment will be introduced in all intensive Drug Intervention Programme areas in England. At the same time Restriction on Bail will be activated across England.

Approximately 70 Drug Action Team areas in England have been classified as intensive areas. Mainly, these are areas of high acquisitive crime. The remainder, approximately 80 areas are currently classified as non-intensive areas.

This paper aims to provide the reader with an introduction to the possible journey offenders might take in the light of these developments and issues that might arise along that journey.

2. Testing on arrest

Testing on arrest is not being introduced in the non-intensive areas. For intensive areas, drug testing on arrest will replace previous testing on charge. To be tested on arrest, an individual must be:

• aged 18 or over;
• in police custody, and;
• arrested for a trigger offence or an offence for which a police officer of Inspector rank or above suspects Class A drugs were a causal or contributory factor.

2.1. Trigger offences

The 'trigger' offences for which offenders will automatically be tested for drugs are:

• Theft;
• Attempted theft;
• Robbery;
• Burglary;
• Aggravated burglary;
• Deception;
• Attempted deception;
• Handling stolen goods;
• TWOC;
• Aggravated TWOC;
• Going equipped;
• Begging;
• Persistent begging;
• Production of specified Class A;
• Supply of classified Class A;
• Possession of specified Class A;
• Possession with intent to supply Class A.

2.2. Procedure

• Drug testing is limited to specified Class A drugs (heroin, cocaine and crack cocaine).
• Individuals will be tested in police custody suites with an approved drug testing facility.
• Only those with a certificate of competency in using the testing equipment (Cozart) will carry out the test.
• Testing facilities will be operational 24 hrs a day.
• An individual can only be tested once in any 24 hour period of detention.
• If an individual receives police bail after being arrested and drug tested he cannot be tested again on returning to the station for that offence.
• No one can be tested on arrest, then tested on charge during the same period of detention.
• If an individual's detention has been extended beyond 24 hours to 36 hours (for the relevant offence by a Superintendent or above) they can be drug tested in this period.
• An individual cannot have his detention extended beyond 24 hours solely to be drug tested.
• If the individual has been charged (and could be released with or without bail) they can be detained solely for the purpose of taking a test as long as it does not exceed 6 hours after they have been charged.

2.3. The Screening test

Drug testing is carried out by means of an oral swab (Rapiscan). It generally only takes a few minutes to get a reading although it can take longer.

Cozart differentiates between Heroin and Methadone and other detoxification (reduction) medication. An agreed fixed concentration, referred to as the cut-off, is used to determine whether a sample is positive (above cut off) or negative (below cut off). The Cozart RapiScan oral fluid drug testing system is a screening test and as such is non-specific.

A more accurate test can be carried out in the laboratory – Gas Chromatography-Mass Spectrometry analysis. Mass Spectrometry analysis identifies and quantifies individual compounds. Mass Spectrometry analysis provides quantitative results that are legally admissible in court (www.drugs.gov.uk).

It is important to note that a positive screening test may be produced by the presence of substances not necessarily related to heroin or cocaine use. Mass Spectrometry analysis would then be needed to distinguish this, for example Mass Spectrometry analysis is necessary to distinguish medication such as codeine-based painkillers from heroin use.

A positive result can be given by the presence of several compounds in combination. Higher than normal doses of drugs may result in drugs or their breakdown products being present in the body for longer. Low concentrations of drug residue from previous doses can combine to give positive screen results.

It is important to take note of any medication, whether from a doctor, over-the-counter or herbal, so a positive result may be interpreted correctly. Additionally, naturally occurring substances in the body, food and medicines may react to give a positive screening (Cozart) result, but they will not interfere with the Mass Spectrometry analysis.

2.4. Test Results

2.4.1. Refused test
Without good cause this is an offence. The test cannot be taken forcefully. The penalty is 3 months in prison, a fine of up to £2,500 or both.

2.4.2. Negative test
The drug testing process ends and the criminal justice process continues. Those admitting drug use at this point should be encouraged to engage with a drugs worker.

2.4.3. Positive test
Police are advised that the individual should undergo an assessment (Required Assessment) undertaken by a drugs worker. A positive test can determine whether an individual receives police bail for the offence arrested and any future bail decisions.

A positive test should not automatically lead to a denial of police bail. If a drug test is taken after charge, previous drug tests can be used to inform a police decision.

2.4.4. Contested test
If the donor contests the Cozart RapiScan screening result, or has declared any medication use that might compromise the result, the sample must be sent to the laboratory for Mass Spectrometry analysis, and no action taken until the result is disclosed.

3. Required assessment

Under normal circumstances a positive drug test will initiate a Required Assessment (failure to comply without good cause is an offence).

The assessment requirement is made by a custody officer or any police officer rank. The decision not to require assessment can only be taken by a police officer of Inspector rank or above.

An individual must be informed by the police of the need to undertake a Required Assessment both verbally and in writing (RA1 form, see www.drugs.gov.uk). Information must also be passed in relation to the consequences of failure to comply. Should the circumstances of the assessment change the individual must be informed via an RA2 form. This being undertaken by the Police or Criminal Justice Intervention Team worker.

Failure to attend and stay for the duration of a RA will become an arrestable offence from 1st January 2006. If the individual is not informed about the consequences of failure to attend the Crown Prosecution Service are unable to prosecute.

3.1. The assessment

The Required Assessment is an initial assessment with a qualified drugs worker (commonly a Criminal Justice Intervention Team worker). It is a level 2 assessment (relating to Models of Care), which aims to assess use of specified class A drugs and identify whether individuals would benefit from further assessment, treatment or support.

3.2. Non-intensive Area

The requirement to attend a Required Assessment can only be initiated following a positive drug test. As a result non-intensive areas will not be able to initiate Required Assessments.

4. Court

For those individuals who appear at court charged with a trigger offence and testing positive for Class A drugs, there are various options open to sentencers depending on the severity of the offence. These are:

• Bail pending trial (Restriction on Bail);
• Remanded to custody pending trial (CARATs (Voluntary))
• Conviction (Community Order (Drug Rehabilitation Requirement))

Prison CARATs (Voluntary)

4.1. Restriction on Bail

The court can withhold bail from those individuals who test positive for Class A drugs unless they agree to undergo an assessment and any proposed follow-up (treatment and/or other support). The Restriction on Bail condition must be applied where individuals are considered suitable for bail and where offending is said to be drug related. If the defendant refuses the restriction on their bail they are remanded in custody unless the court decides that there is no risk of offences being committed on bail. Restriction on Bail will be in place in non-intensive areas.

4.2. Stages for those charged

(a) Pre-court activities at the police station:
• Defendants are tested and any (positive) results are sent to the Crown Prosecution Service and the court drugs workers.

(b) Date of first hearing, pre-court activities which occur at court:
• Court teams identify potential Restriction on Bail clients and track their progress through court.

(c) Court proceedings:
• Courts consider the bail condition as part of normal remand procedure.
• Once bailed, defendants are given a bail notice detailing the conditions, including restrictions where applicable, and the date of their next court appearance.

(d) Post-hearing activities:
• Drugs teams assess Restriction on Bail clients and refer to relevant agencies for treatment where appropriate.
• Restriction on Bail teams monitor compliance and breach where necessary.

Restriction on Bail is enforceable and individuals can breach bail by breaching the restrictions, breaching another condition, or if they are re-arrested for another offence.

The area of residence will be responsible for any follow-up. They will also deal with any breach of conditions. This will include informing the local police and dealing with any breach hearings at their local courts.

4.3. Community orders

From April 2005 the commonly known Community Rehabilitation Order, Drug Treatment and Testing Order, and Community Punishment Order have been replaced by a single generic Community Order made up of at least one of 12 requirements. It is expected that where drug use has been identified a Drug Rehabilitation Requirement will be one element of the Community Order.

A Drug Rehabilitation Requirement require that the offender undergo treatment and provide samples for testing. This requirement can only be given with the consent of the offender.

Programmes aimed at changing offending behaviour can form part of the Drug Rehabilitation Requirement. These are accredited programmes designed to address the attitudes and patterns of behaviour that contribute to offending, such as programmes for those who misuse drugs.

4.4. Custodial Sentences

4.4.1. Suspended Sentence Order (Custody Minus)

This is a sentence of custody of under 12 months, suspended for a period ranging from six months to two years. During the suspension period the court can set community requirements as available for the community order.

4.4.2. Custody Plus

This will replace all 0-12 month prison sentences with a short custodial sentence, followed by a period of supervision, during which the offender will be required to fulfil one or more requirements similar to those for a community order. The Government plans to implement this in 2006 (Probation News and Updates).

5. Custody

The Prison Service has in place a framework of treatment and support to address a wide range of drug misuse problems. Prison-based services include:

5.1. CARATs

Available across all estates Counselling, Advice, Referral, Assessment and Through-care Teams provide a service to those entering prison identified as having a drugs problem. Assessments undertaken by these teams may result in prisoners assessed for referral to other wings including detoxification and treatment. This service forms a bridge to accessing services in the community on release. The service should make direct referrals to Criminal Justice Intervention Teams.

Mandatory and Voluntary Drug testing is undertaken across all estates and positive test results from MDT carry a penalty of.additional days in custody.

REFERENCES

DIP – Tough Choices Project FAQ List, Nov 2005
http://www.drugs.gov.uk/publication-Search/dip/toughchoicesFAQ?view=Standard&pubID=252499

Notes on Cozart RapiscanTM vs Laboratory Test
www.drugs.gov.uk

Probation Circular, Ref. No. 80/2005, Drug Rehabilitation Requirements: (1) National Standards Correction; (2) Information for Judges

Probation News and Updates
www.probation.homeoffice.gov.uk/output/Page280.asp