ThesisPDF Available

Blunt Trauma: The Impact of Stigma on Cannabis Users and the need to Decriminalise Personal Possession in Ireland.

Authors:

Abstract

Examining the current criminalisation of cannabis consumers in Ireland, with a focus on how the stigma of criminality can impact a cannabis consumer's life. I illustrate how Portugal's decriminalisation program has shown many positive effects. To conclude I argue that to combat the stigma of criminality in Ireland we need to decriminalse personal possession as a first step to reform.
Title: Blunt Trauma: The Impact of Stigma on Cannabis Users and
the need to Decriminalise Personal Possession in Ireland.
Name: Natalie O’Regan
Qualification for which the dissertation is submitted: LLM
General (Thought) CKL14
College: Law School, University College Cork.
Date of Submission: September 2020
Word Count: 14,867
As per the submission guidelines, by submitting this work online, I
can confirm I have not plagiarised or colluded in the production of the
writing.
Table of Statues
Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances
1988, U.N. Doc. E/CONF.82/15
Criminal Justice (Drug Trafficking) Act 1996
Criminal Justice (Illicit Traffic by Sea) Act 2003
Criminal Justice (Psychoactive Substances) Act 2010
Criminal Justice Act 1994
Criminal Law (Rape) (Amendment) Act 1990
Decriminalisation of Drug Use Act (Decree Law no. 30/2000),
Geneva Convention on Opium and Other Drugs 1925
Licensing (Combating Drug Abuse) Act 1997
Marriage Act 2015
Misuse of Drugs Act 1977
Misuse of Drugs Act 1984
Regulation 13 Misuse of Drugs Regulations Statutory Instrument, S.I number 173 of
2017
Single Convention on Narcotic Drugs, 1961, March 30, 1961, 520 U.N.T.S. 204
UN General Assembly, 1971 Convention on Psychotropic Substances, 9 December
1975, A/RES/3443
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United
Nations, Treaty Series, vol. 1155, p. 331.
Table of Contents
Chapter 1
Introduction Page 1
1.The Irish Landscape Page 2
1.1 Enforcement Page 4
1.2 Alternatives to Conviction Page 5
2. Criminalisation Page 6
3. International Perspective Page 8
3.1 International Attitude Page 9
4. Harm Reduction Page 11
5. Portugal Page 14
5.1 Decriminalisation Page 15
5.2 Drugs Dissuasion Commission Page 16
5.3 Effects of Decriminalisation in Portugal Page 17
5.4 Criticism of Portuguese Decriminalisation Page 19
Conclusion Page 20
Chapter 2
6. Importance of Stigma Page 22
7. Them versus Us Page 22
8. Labelling Page 23
8.2 Labelling Critique Page 28
9. Stigma Page 28
9.1 External Stigma and the Public Page 30
9.2 Employment and Stigma Page 31
9.3Stigma and Health Page 32
9.4 Internal Stigma Page 33
9.5 Internal Stigma and The Public Page 33
9.6 Stigma and Treatment Page 35
Conclusion Page 36
Chapter 3
Introduction Page 38
10. What does the future hold for Ireland Page 38
11. Vision and Values Page 40
11.1 Recovery and Rehab Page 40
11.2 Health of Drug Users Page 42
11.3 Education and Prevention Page 44
11.4 Family and Community Page 45
12 Working Group Page 47
12.1 Report of the Working Group Page 48
12.2 Adult Caution Page 49
13 Social Integration Page 52
Conclusion Page52
Bibliography Page 55
Chapter 1
Introduction
The topic of decriminalisation of personal possession of drugs is not new to Ireland, but it has gained
significant attention over the last number of years through a number of NGO’s and harm
reductionists.1 The concept and definition of decriminalisation can be defined as “removal of criminal
status from a certain behaviour or action. This does not mean that the behaviour is legal, as non-
criminal penalties may still be applied. With respect to the drug debate, this concept is usually used to
describe laws addressing personal possession or use rather than drug supply”.2 There are many
approaches to decriminalisation that can be taken, such as the complete removal of all sanctions or,
for the purpose of this writing, administrative sanctions and treatment options based on the
Portuguese approach. Cannabis is a special drug to consider in this argument given its medicinal
properties3 and its prevalence as the most consumed drug not only in Ireland but globally.4
Decriminalisation of cannabis specifically has been a hot topic in the last number of years with
countries moving towards decriminalising personal possession. For this writing, I will only be
considering personal possession and not the more serious offence of sale and supply.
Although Ireland is confined by international law, there is enough flexibility and discretion awarded
to Ireland under UN conventions to allow for decriminalisation. International opinion was once
focused on prohibition and criminalisation of drug users, International attitude has changed. Harm
reduction is now firmly entrenched in International collective thinking. Harm reduction has gained
significant support over the last number of decades, although there is no one universal approach. It
1Many groups in Ireland have highlighted the benefits of decriminalisation of drugs for personal possession,
most notably Citywide.ie, the Irish Council for Civil Liberties, helpnotharm.ie, and the most recent
governmental mandate by the Green Party to hold a Citizen Assembly on the topic of drugs in Ireland.
2 European Legal Database on Drugs, Decriminalisation in Europe? Recent Developments in Legal Approaches
to Drug Use, European Monitoring Centre for Drugs, Drug Addiction and Alcohol, Comparative Analysis 2001
at page 2. file:///C:/Users/Natalie
%20O'Regan/Desktop/Decriminilisation/EMCDDA/Decriminalisation_Legal_Approaches.pdf (date accessed:
10 June 2020)
3 See Barnes, and Barnes, “Cannabis: The Evidence for Medical Use” (2016). London: UK Houses of
Parliament
4 United Nations, World Drug Report 2019, “Cannabis and Hallucinogens”, at page 17.
1
aims to address both the health and social issues that arise from drug use. Additionally, harm
reduction advocates the end of criminalisation of drug users which can combat many of the social
issues related to drug use. In 2001, Portugal successfully decriminalised personal possession of illicit
drugs, alongside heavy investments in treatment options, education and prevention. Overall, this
approach has been effective in removing the stigma of drug use, improving the lives of drug users and
addressing many of the social harms associated with drug use.
1. The Irish Landscape
Like many other countries worldwide, personal possession of illegal drugs in Ireland is criminalised5.
The journey of today’s criminalisation of cannabis in Ireland began in the 1970’s. At this time, drug
use was mainly concentrated in the Dublin area but the drug related issues in society were becoming
increasingly visible.6 The then Minister for Health Sean Flanagan established a working group to
examine the extent of drug use in Ireland and to make recommendations to the Minister for Health.7
The report found that cannabis was the most commonly used drug, which it still remains today.8 The
report concluded with an examination of studies available at the time and determined that penalties for
cannabis possession should be lower than other drugs such as heroin9 and should not result in
imprisonment.10
Following this report, the recommendations were implemented in full in the Misuse of Drugs Act
1977.11 This is where today’s legislative provision regarding the criminalisation of personal possession
of cannabis stems from. During the Dail debates on the Misuse of Drugs Act, a number of members
5 Misuse of Drugs Act 1977. S. 3(2). Establishes the basic offence of personal possession.
6 Report of Working Party on Drug Abuse (Dublin: Stationary Office 1971). at page 10-14.
7 The group consisted of a representative of the Student Council, Department of Health Officials including the
Chief Medical Officer, Mental Health officer and Members of the Garda Siochana. Full list of members can be
found in Report of Working Party on Drug Abuse (Dublin: Stationary Office 1971) at page 7.
8 UN World Drug Report supra note 4 at page 17.
9 Ibid. at page 21.
10 Ibid. at page 21.
11 [hereinafter 1977 Act] Later Amended by Misuse of Drugs Act 1984, the Criminal Justice Act 1994, the
Criminal Justice (Drug Trafficking) Act 1996, the Licensing (Combating Drug Abuse) Act 1997, the Criminal
Justice (Illicit Traffic by Sea) Act 2003 and the Criminal Justice (Psychoactive Substances) Act 2010.
2
raised concerns regarding the punishment of drug users. It is clear from some statements made that
health was the primary concern at the time. Minister for Health at the time Mr Corish stated that “we
want to ensure that the people with a drug problem are dealt with sympathetically and have the most
effective range of care and treatment possible “12. Mr Haughey also noted that “we have had to try,
too, to bring in legislation that would render certain acts punishable but we have had to recognise that
very often people committing these offences are not guilty of criminal activity in the normal sense
but, perhaps, are people who require medical care and attention rather than punishment”.13 Given
these statements, it is questionable that the consequence of punishing drug users was never
intentional, and health was the primacy concern for the Oireachtas. Nonetheless they were aware of
consequences of criminalisation.14
Despite concerns raised, the Misuse of Drugs Act 1977 was enacted. Section 3(2) of the Act
establishes the basic offence of personal possession of any controlled drug.15 As a starting point, a
blanket prohibition of drugs is provided for, and from here various other statutory instruments have
shaped the law16, such as medical and professional licences.17
Following the recommendations, the penalties applicable to personal possession of cannabis differ to
other drugs. There is no statutory definition of what constitutes personal use, instead this is left to the
courts to decide. The Court will examine the circumstances such as the amount of cannabis and
12 Seanad Deb. Vol. 86 No.10 (5th May 1977), updated 25th June 2020.
https://www.oireachtas.ie/en/debates/debate/seanad/1977-05-05/
13 Dáil Deb. Vol. 298 No.6 (31st March 1977), updated 25th June 2020.
https://www.oireachtas.ie/en/debates/debate/dail/1977-03-31/
14 It is worth noting here that similar issues were raised in 2010 with the introduction of the Criminal Justice
(Psychoactive Substances) Act 2010. This legislation did not make simple possession of a Psychoactive
Substance a criminal offence. In response to this criticism Minister Ahern stated that “a criminal offence of
possession would criminalise the possession of certain industrial substances which may have a psychoactive
effect. The intention of the bill is not to criminalise legitimate business but rather target the activities of those
who sell unregulated psychoactive substances for human consumption”. For further details please see Dáil Deb.
Vol. 714 No.3, (2nd July 2010), updated 25th June 2020.
15 The drugs that are subjected to control are listed in the Schedule of the 1977 Act, where cannabis and its
derivatives are included.
16 Misuse of Drugs Act 1984, the Criminal Justice Act 1994, the Criminal Justice (Drug Trafficking) Act 1996,
the Licensing (Combating Drug Abuse) Act 1997, the Criminal Justice (Illicit Traffic by Sea) Act 2003 and the
Criminal Justice (Psychoactive Substances) Act 2010.
17 Regulation 13 Misuse of Drugs Regulations Statutory Instrument, S.I number 173 of 2017.
3
whether the person is a recreational user.18 Section 27(1)(a) sets out a sliding scale of penalties, once
convicted and the court is satisfied that the possession of cannabis was for personal use a fine is
imposed for the first and second conviction.19 Upon a third conviction, a term of imprisonment may be
imposed, ranging up to 12 months for a summary offence and up to three years for an indictable
offence.20
1.1 Enforcement
We cannot see the enforcement practice directly from the statute book, instead we must look at the
wider picture of law enforcement as it is on the ground. With information from the Central Statistics
Office21, we can piece together a picture of the level of enforcement in Ireland. The CSO 2019 data22
reveals that drug possession for personal use represents over 70% of all controlled drug incidents in
Ireland in 201923, with 15,694 reported incidents for personal possession alone.24 This statistic remains
steady at between 70%-77% year on year.25 It is also worth noting that these figures are subjected to
the primary offence rule, which means that where two or more offences are committed the primary
incident is recorded, that being the one that would carry the greatest penalty upon conviction26. These
figures illustrate that when a person is found or suspected to be in possession of drugs for personal
use, it is deemed the most serious crime to be addressed and not evidence of a larger pattern of
criminal activity.
18 Ibid. at para 2.01.
19 Section 27(1)(a)(i) &(ii) 1977 Act.
20 Section 27(1)(a)(iii) 1977 Act.
21 Hereinafter CSO
22 All data under reservation. Due to irregularities in Garda reporting, the CSO has issued a warning regarding
the accuracy of the data. For more information please see
https://www.cso.ie/en/methods/crime/statisticsunderreservationfaqs/ (date accessed: 10 June 2020).
23 Central Statistical Office, Recorded Crime Q4 2019 https://www.cso.ie/en/releasesandpublications/ep/p-
rc/recordedcrimeq42019/ (date accessed: 10 June 2020).
24 Central Statistical Office, Recorded Crime Q4 2019, Additional Statistics.
https://www.cso.ie/en/releasesandpublications/ep/p-rc/recordedcrimeq42019/additionalstatisticaltables/ (date
accessed: 10 June 2020).
25 Hughes, C., Stevens, A., Hulme, S. & Cassidy, R. “Review of approaches taken in Ireland and in other
jurisdictions to simple possession drug offences.” A report for the Irish Department of Justice and Equality and
the Department of Health. UNSW Australia and University of Kent. (2018) at page 8.
26 Details regarding the Primary Offence Rule can be found here on the CSO website
https://www.cso.ie/en/methods/surveybackgroundnotes/recordedcrime/#:~:text=Primary%20Offence%20Rule
%3A%20Where%20two,the%20greatest%20penalty%20on%20conviction. (date accessed: 10 June 2020)
4
The vast majority of these cases were dealt with in the District Court. The data available from the
Courts Service Report 2019 shows that most drug offences were dealt with by way of a fine or
suspended sentence which leads to a criminal record or probation.27 Although alternatives to criminal
convictions are available to the Courts, just under 600 people were still punished with imprisonment
for drug offences in Ireland in 2019.28 From these figures and lenient sentences, it is likely that these
offences were at the lower scale of drug offences, with cannabis likely to be the most common offence
given its already lenient sentencing provisions. Nonetheless these figures show that criminalisation of
personal possession is thriving in Ireland.
1.2 Alternatives to Prosecution
The Courts are equipped to impose alternatives to a criminal conviction. The Court has the option,
upon recommendation from either the Health Service or Probation Service, to permit the defendant to
undergo treatment, education or supervision.29 Unfortunately, these routes do not appear to be used in
practice and it is difficult to establish the extent of their usage30, with the Courts relying on
criminalisation.31 Information obtained by Stevens during his review of Ireland’s approach to
personal possession from the Department of Justice and Equality stated that these provisions are
rarely used due to a number of reasons. They cited the lack of residential treatment units in Ireland,
and that other options were available to the Court such as probation which would have been less
punitive32.
The Garda Adult Caution Scheme33 was first established in 2006 on a non-legislative basis with the
agreement of the Director of Public Prosecutions.34 It allows the Guard to divert an individual from
prosecution by issuing a caution where prosecution of the offence is not in the public interest.
27 Courts Service Annual Report 2019, at page 83-84.
28 Ibid at page 83-84.
29 Misuse of Drugs Act 1977. S.28.
30 Griffiths Et al, Report of The Rapid Expert Review of the National Drugs Strategy, 2009-2016. at page 26.
31 Courts Service Annual Report 2019 at age 83 – 87.
32 Stevens et al, supra note 25 at page 15.
33 An Garda Síochána, Adult Cautioning Scheme 2006 retrieved from https://www.garda.ie/en/About-
Us/Publications/Policy-Documents/Adult-Cautioning-Scheme.pdf (date accessed: 18 July 2020)
34 Hereinafter DPP.
5
Personal possession of cannabis was included in the schedule of offences but was excluded prior to
implementation of the scheme35. It currently applies to a limited range of offences and the scheme is
mostly reserved for first time offenders but in exceptional cases an individual may be given a second
caution with consent of the DPP. All cautions are required to take place in a Garda station and not on
the street which aids the feeling of criminality.
2. Criminalisation
Criminal law allows the state to deprive an individual of liberty and freedom or to punish them in
other ways such as fines or community service. The theory behind criminalisation is that by
criminalising people, it will effectively act as a deterrent to any socially unacceptable and illegal
behaviour. Additionally, it serves a number of other objectives, such as deterrence of any future
criminal conduct and rehabilitation of the individual.36 There is little evidence that criminalising the
personal possession of drugs is a deterrent for any future drug use.37 As I have mentioned above,
imprisonment for personal possession of cannabis remains limited in ireland, nonetheless it is still a
possibility. With regards to rehabilitation, there are few systems in the world that can offer long
lasting rehabilitation of prisoners38. Drug users are overrepresented in the prison system, with drug use
often more prevalent than in the general community39. Criminalisation is not something to be taken
lightly in Ireland, it can have many far-reaching negative consequences, as the DPP notes;
35 Limited information exists on the rationale for such a decision. In response to a Dáil question posed by
Ciarán Cuffe (02 February 2006), Michael McDowell, the then Minister for Justice, Equality and Law Reform,
stated that the offence of possession of a controlled drug had been withdrawn pending further consultation
between An Garda Síochána, the Director of Public Prosecutions and the Department of Justice, Equality and
Law Reform. See also Tolan, Graham and Seymour, Máiréad (2014) "Increasing the Potential for Diversion in
the Irish Criminal Justice System: The Role of the Garda Síochána Adult Cautioning Scheme," Irish Journal of
Applied Social Studies: Vol. 14: Iss. 1, Article 7 at page 60.
36 Keane, Marcus and Csete, Joanne and Collins, John and Duffin, Tony “Not criminals. Underpinning a
health-led approach to drug use.” (Dublin: Ana Liffey Drug Project and London School of Economics, 2018). at
page 36
37 Please see, Husak, “Overcriminalization: The limits of the criminal law”, (New York: Oxford University
Press, 2008); Moore and Elkavich, “Who’s Using and Who’s Doing Time: Incarceration, the War on Drugs and
Public Health”, (2008) American Journal of Public Health, 98, S176–S180; MacCoun, “Drugs and the law: A
psychological analysis of drug prohibition”, (1993) Psychological Bulletin 113(3),497– 512,
38 See generally, Rolles and Eastwood, “Drug decriminalisation policies in practice: A global summary”, in
Harm Reduction International, The global state of harm reduction 2012 (HRI: London, 2012), 157-65.
39 Sander et al, “Overview of harm reduction in prisons in seven European countries" (2016) 13(1) Harm
reduction journal 1. At page 4.
6
The decision to prosecute or not to prosecute is of great importance. It can have the most
far-reaching consequences for an individual. Even where an accused person is acquitted, the
consequences resulting from a prosecution can include loss of reputation, disruption of
personal relations, loss of employment and financial expense, in addition to the anxiety and
trauma caused by being charged with a criminal offence40
It is clear here that the objectives that criminal law wants to meet are not achieved by the criminal
justice system, the criminalisation of personal possession does not illustrate the best use of criminal
law41.
These criminal and punitive approaches to drug use have dominated and continue to dominate the
global approach to personal drug use. Criminalisation has had the opposite than desired effect.
Despite the popularity of the approach, prohibition has failed to diminish drug use and its associated
harms.42 Harm that is associated with drug use also include those harms caused by criminalisation
itself and the so called “war on drugs”, with critics arguing that “prohibition itself is responsible for a
substantial portion of drug-related harm”.43 The stigma associated with criminalisation is one harm
that has been weaponised in the war on drugs. Stigma can function as a strong deterrent of criminal
activity44 especially when reinforced with incarceration. Zimring and Hawkins opine that “for the
majority of people the most degrading aspect of punishment is the social message it conveys”.45
Grasmick and Appleton concluded their study on the effects of stigma stating that stigma of
criminality plays a more significant role in an individual’s life than any other sanction such as
40 Director of Public Prosecution, Guidelines for Prosecutors, 4th Ed, October 2016 (Dublin: Office of the
Director of Public Prosceutions,2016) At para 4.1.1.
41 Not Criminals Report, supra note 36 at page 37.
42 Levy, Jay [INPUD]. (2014) The harms of drug use: criminalisation, misinformation, and stigma. London:
INPUD; Youth RISE. At page 2.
43 Stevens, “The ethics and effectiveness of coerced treatment of people who use drugs.” (2012) Human Rights
and Drugs, 2, (1), pp. 7-15. At page 9.
44 Funk, "On the Effective use of Stigma as a Crime-Deterrent." (2004) European Economic Review, vol. 48,
no. 4, pp. 715-728. At page 726.
45Zimring, and Hawkins. "The Legal Threat as an Instrument of Social Change." (1971) Journal of Social
Issues, vol. 27, no. 2, pp. 33-48 at page 39.
7
imprisonment46. This war on drugs has resulted in a war on drug users47 with consequences that go far
beyond any deterrence element.
3. International Perspective
Internationally, Ireland like all other signatories are bound by International drug conventions. The first
convention to include cannabis in its scheduled list of prohibited drugs was the Opium Convention
1925.48 Cannabis was included in this convention with little to no debate or scientific evidence, with
some actually inaccurate claims that it was as dangerous as opium.49 This prohibition continued to
influence the future of International law with two more conventions, the 1961 Single Convention of
Narcotic Drugs50 and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.51 Due to the executory nature of these conventions they do not automatically form part of
Irish domestic law, but we are obliged to interpret them in good faith.52
In the 1961 Single Convention, cannabis was listed alongside opium as a substance that should be
limited to scientific and medical purposes53, neither of which is defined internationally. The penal
provisions are contained in Article 36 (1)(a) of the Single Convention which specifically apply to
“serious offences”, Subsection (b) of the same Article further states that member states are free to
provide for alternatives to conviction and punishments for drug users in the form of treatment,
education, rehabilitation and social reintegration.54 This wording is reiterated in Article 22(1)(a) of the
46Grasmick, and Appleton. "Legal Punishment and Social Stigma: A Comparison of Two Deterrence
Models."(1977) Social Science Quarterly, vol. 58, no. 1, pp. 15-28. At page 27.
47 Buchanan, & Young, “The War on Drugs – A War on Drug Users” (2000) Drugs: Education, Prevention
Policy, 7(4), 409-422 at page 409.
48 Geneva Convention on Opium and Other Drugs 1925. (hereinafter Opium Convention)
49 Kendell, “Cannabis condemned: the proscription of Indian hemp.” (2003) Addiction (Abingdon, England)
vol 98,2: 143-151. At page 145 – 148.
50 Single Convention on Narcotic Drugs, 1961, March 30, 1961, 520 U.N.T.S. 204; (hereinafter the Single
Convention).
51 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, U.N. Doc.
E/CONF.82/15 (1988), reprinted in 28 I.L.M.
52 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series,
vol. 1155, p. 331. Article 31.
53 General Obligations, Single Convention on Narcotic Drugs, 1961, Article 4, as amended by the 1972
Protocol Amending the Single Convention on Narcotic Drugs.
54 Article 36(1)(b) Single Convention.
8
1971 Convention on Psychotropic Substances55, which left the subject of criminalisation of personal
possession debatable until the 1988 Convention.
The 1988 Convention clarified the international position on personal possession. Firstly, Article 3(2)
states that member states must establish a criminal offence of personal possession of cannabis56,
Article 3(4) further states that member states may provide alternatives to conviction or punishment
such as treatment, rehabilitation and social integration of offences contained in paragraph 257,
however, does not mention personal possession as it arises later in paragraph 2. Therefore, the
criminalisation of personal possession in a domestic legal system is not required under international
law as it gives member states a wide degree of flexibility in terms of penalisation of personal
possession once illegal drugs remain illegal.58
3.1 International attitude
International attitude for a long time was dominated by a prohibition and criminalisation approach to
drugs. In 1998 during General Assembly Special Session on Drugs, the UN declared their idealistic
goal of reaching a drug free world by 2008 through demand reduction programmes, with the slogan
“we can do it”. The then United Nations Secretary General Mr Kofi Annan stated at the opening of the
assembly “it is my hope that when historians study the work of humankind in the field of drug
control, they will write about the next few days as the point where this trend was reversed.”59 In one
regard he was right, people would write about UNGASS, but not in the way he had hoped. Instead the
UN came under increasing criticism for not revaluating their prohibitionist policy.60 Even though it
55 UN General Assembly, 1971 Convention on Psychotropic Substances, 9 December
1975, A/RES/3443(hereinafter 1988 Convention), Article 22(1)(a).
56 Article 3(2) 1988 Convention.
57 Article 3(4)(d) 1988 Convention.
58 INCB Annual Report for 2001 UN Doc No E/INCB/2001/1 (Vienna March 2001), para. 211.
59 Special Session of the General Assembly Devoted to Countering the Worlds Drug Problem Together, 8-10
June 1998: Political Declaration: Guiding Principles of Drug Demand Reduction and Measures to Enhance
International Cooperation to Counter the Worlds Drug Problem. At page 1.
60 Jelsma, Martin. "Drugs in the UN System: The Unwritten History of the 1998 United Nations General
Assembly Special Session on Drugs."(2003) International Journal of Drug Policy, vol. 14, no. 2, pp. 181-195. At
page 183-184.
9
was evident that the US war on drugs had failed, resulting in mass incarceration, and the
criminalisation of a generation of drug users.
International attitude did not change much between the 1998 assembly and the next that was held in
2016. Prohibition was doing little to reach the goal of a drug free world as drug use increased
significantly61 and instead, succeeded in marginalising and stigmatising drug use even further.62 2016
was seen as a critical moment for the drug policy reform community to affect some serious change in
the collective thinking. Criticism was building against UN drug control measures from many
heavyweights such as Mr Annan, who once advocated for a drug free world, now advocated for a
regulated drug market to address the health risks involved.63 By 2016, many countries were departing
from drug prohibition and embracing decriminalisation such as Portugal. Despite the increasing
lobby for change, the result of the 2016 assembly was to reaffirm international commitment to
promote a drug free world64 The 2016 assembly was originally seen as a missed opportunity for drug
policy reform65, however it has highlighted opportunities to shift the collective thinking towards a
future of harm reduction.66
This change in international thinking could no longer be ignored, many UN agencies began to call for
change in drug policy and a move away from criminalisation. Secretary General Ban Ki- Moon called
on member states to “consider alternatives to criminalisation and incarceration of drug users and focus
criminal justice efforts to those involved in supply”.67 Additionally, the United Nations Office on
61 United Nations Office on Drugs and Crime, World Drug Report 2016 (United Nations publication, Sales No.
E.16.XI.7) at page 1.
62 Reuter, "Ten years after the United Nations General Assembly Special Session (UNGASS): assessing drug
problems, policies and reform proposals." (2009) Addiction 104.4: 510-517.at page 515.
63 Please see the Kofi Annan Foundation for more information https://www.kofiannanfoundation.org/changing-
drug-policy/lift-the-ban-kofi-annan-on-why-its-time-to-legalize-drugs/ (date accessed: 21 August 2020)
64 Outcome Document of the 2016 United Nations General Assembly Special Session on World Drug Problem,
New York, 19-21 April 2016. At page 4 & 5.
65 Fordham and Haase “The 2016 UNGASS on Drugs: A catalyst for the Drug Policy Reform Movement” in
Klein, and Stothard. Collapse of the Global Order on Drugs: From UNGASS 2016 to Review 2019. (Emerald
Publishing Limited, GB, 2018) at page 40.
66 Outcome Document of the 2016 United Nations General Assembly Special Session on World Drug Problem,
New York, 19-21 April 2016 at page 3.
67 Message on International Day Against Drug Abuse and Human Trafficking,” Press Releases, United Nations
Information Services, published 26th June 2015.
https://www.unodc.org/unodc/en/press/releases/2015/June/statement-on-the-international-day-against-drug-
abuse-and-illicit-trafficking.html (date accessed: 27 May 2020)
10
Drugs and Crime has highlighted the unintended consequences of criminalisation including
marginalisation of people which is in turn amplified by the criminal justice system.68 In 2019, the UN
adopted a person-centred approach to drug policy by rejecting drug policies based on criminalisation
and endorsed harm reduction in all areas of health and human rights.69 International law does not
prohibit a move towards decriminalisation of personal possession of drugs, and the new position of
the UN shows that harm reduction is now firmly entrenched in the international thinking.
4. Harm Reduction
Approaches to drug use have begun to shift, from a criminalisation model towards a more harm
reduction model. Harm reduction principles have gained significant traction over the last 20 years,
with many countries incorporating it into their approach. The core aim of harm reduction is to reduce
and minimise the negative consequences of drug use70 and this is often achieved by the
“healthification” of drug policies that treats drug users as patients rather than criminals. This is
achieved through diverting drug users away from the criminal justice system and towards treatment
alternatives. A harm reduction approach to drug policy accepts that drug use will always be an
element of our society and aims to address the negative collateral consequences that stem from drug
use. Harm reduction has played a large role in addressing the negative consequences of heroin use,
such as Opium Substitution Treatment, needle exchanges to ensure clean injection equipment is used,
and more recently advocating for drug testing kits to become the norm to ensure safe drug use. Most
importantly it has become the rationale for decriminalising drug use to ensure that drug users do not
face the consequences of criminalisation.
There is no one accepted definition of harm reduction as there have been many differences of opinion.
In his examination of Australia’s National Drug Strategy for the Ministerial Council of Canberra,
68 United Nations Development Program, “Addressing the development dimensions of drug policy” (UNDP,
2015), 12, at page 5, 7, 9, 34.
69 United Nations System Coordination Task Team on the Implementations of the UN System Common
Position on drug-related matters: “What We Have Learned Over the Last Ten Years: a summary of knowledge
acquired and produced by the UN system on drug-related matters” 2019.
70 Please see Harm Reduction Coalition, https://harmreduction.org/about-us/principles-of-harm-reduction/
(date accessed: 24 May 2020)
11
Single summed up his preferred definition, which in my opinion captures all aspects, he stated that
harm reduction is “a policy or programme directed towards decreasing adverse health, social and
economic consequences of drug use while the user continues to use drugs”.71 This perfectly illustrates
the breadth of focus and concern within the harm reduction movement.
A harm reduction approach can be highly evident in some areas of drug policy. For example, the rise
of heroin use from the 1980’s onwards in Ireland was addressed by an opioid substitution treatment
and needle exchange programme such as Merchants Quay.72 However, where the use of cannabis is
concerned there has been little exploration in alternative harm reduction. The dominating conversation
for the last number of decades around cannabis use is focused on the safe administration of the drug
which centres around the harms of tobacco, and the potential adverse effects on an individual’s mental
health.73
Harm reduction is not without its critics. One of the main criticisms of the harm reduction movement
is that without the fear of sanction, it will encourage the use of illegal drugs. Some people fear that by
assisting drug users to attain a healthy lifestyle and destigmatise drug use, it can “send out the wrong
signal” that drug use is safe and acceptable and therefore encourage its use.74 Studies have shown that
when we remove the threat of criminal sanctions through either decriminalisation or depenalisation,
encourage a health led approach to drug use and destigmatise its use in the community, it has not
resulted in any significant increase in its use.75
71 Single, & Rohl, & Ministerial Council on Drug Strategy (Australia) “The National Drug Strategy: mapping
the future: an evaluation of the National Drug Strategy 1993-1997: a report.” (1997) Australian Government
Publishing Service, Canberra, At page 12.
72 Please see Merchants Quay website for more information on the services they offer https://mqi.ie/
73Melamede “Harm Reduction – The Cannabis Paradox” (2005) Harm Reduction Journal 2:17. At page 6.
74 Neil Hunt, “A review of evidence-base for harm reduction approaches to drug use”, Forward Thinking on
Drug Use, A Release Initiative at para 2.3.3 (date accessed: 26 August 2020).
https://www.neilhunt.org/pdf/2003-evidence-base-for-hr-hunt-et-al.pdf
75 For Australian evidence, please see, Donnelly N, Hall W and Christie P (2000) The effects of the CEN
scheme on levels and patterns of cannabis use in South Australia: evidence from National Drug Strategy
Household Surveys 1985-1995. Drug and Alcohol Review, 19, 265-269. For an evaluation of the impact of
depenalisation in the US please see, Single, E., Christie, P. and Ali, R. (2000) The impact of cannabis
decriminalisation in Australia and the United States. Journal of Public Health Policy, 21, 157-186.
12
A further critique of the harm reduction approach is that it is believed to be a “trojan horse” and the
ultimate underlying goal is to promote the legalisation of drugs.76 As I have mentioned above, there is
no one universal definition of harm reduction, and it may encompass many diverging approaches.
Many harm reduction advocates also advocate for drug policy reform and the creation of a legalised
and regulated market.77 Many do not support this development, instead advocate for decriminalisation
approach that may include civil sanctions and encourages treatment options.78 The world is moving
towards accepting that criminalisation is not the solution to drug use. There is evidence to show that
the medicinal properties to cannabis have been well proven79, and it has been found to be less harmful
than tobacco80 and alcohol.81 In my opinion, legalisation of cannabis will happen at some point in the
future but at this time the more pressing issue is to eliminate harms caused by criminalisation of
cannabis use. It must not be forgotten in this conversation that the origins of the harm reduction
movement stem from a medical approach to the HIV/AIDS crisis that swept the globe. It is rooted in a
medical lens which may be difficult for some to move away from, but it is my argument that harm
reduction encompasses a lot more than patient versus criminal.
5. Portugal
In my opinion the “gold standard” in harm reduction can be illustrated by an examination of
Portugal’s 2001 decriminalisation of personal possession of all illicit drugs. The removal of criminal
penalties has greatly improved the life and well-being of drug users in the areas of family and
76 Neil Hunt supra note 74 at para 2.3.4.
77 Recently the Green Party promoted the regulation of the cannabis market in Ireland with Dutch style coffee
shops, see the Green Party position Paper on Drug Policyhttps://www.greenparty.ie/wp-
content/uploads/2019/08/Green-Party-Drugs-Policy.pdf (date accessed: 06 July 2020), The Drug Policy
Alliance Organisation promote the legalisation of the cannabis market, for more information see
https://www.drugpolicy.org/issues (date accessed: 06 July 2020)
78 Global Commission on Drug Policy, “Advancing Drug Reform: A New Approach to Decriminalisation”
2016 Report.
79 Joint Committee on Health, “Report on Medicinal Cannabinoids” January 2017. See also Hazekamp, Arno,
et al. "The Medicinal use of Cannabis and Cannabinoids—An International Cross-Sectional Survey on
Administration Forms." (2013) Journal of Psychoactive Drugs, vol. 45, no. 3, pp. 199-210.
80 Melamede, “Cannabis and Tobacco Smoke are not Equally Carcinogenic.” (2005) Harm Reduction Journal.
2. 21 at page 3.
81 Lachenmeier, Dirk W., Maria C. Przybylski, and Jürgen Rehm. "Comparative Risk Assessment of
Carcinogens in Alcoholic Beverages using the Margin of Exposure Approach." (2002) International Journal of
Cancer, vol. 131, no. 6, pp. E995-E1003.
13
community, social reintegration and health which are all aided by the removal of the stigmatising
label associated with criminalisation.
Pre 2001 decriminalisation, drug consumption became one of the major social concerns82 in Portugal
and was the main cause of the high rate of incarceration with almost 4,000 people imprisoned for drug
offences.83 Pre-decriminalisation, Portugal did not collect national data on drug use, but if we look at
the statistics for the demand in drug treatment services, drug use related illness and deaths, we can see
evidence84 of a growing problem in Portugal, the majority of which due to heroin.85 In 1998, the
Portuguese Government appointed a Commission to analyse the drug situation and related issues of
Portugal and put forward recommendations to the Government that would help shape the National
Drug Strategy. This Commission consisted of doctors, lawyers, psychologists and social activists to
ensure that an educated and well-informed rounded discussion around drug use in Portugal could be
had. The Commission recommended decriminalisation of personal possession of illicit drugs and this
formed the basis of the National Drug Strategy.86 This strategy was hailed as “a humanistic, pragmatic
and health-orientated approach explicitly recognising the addict as a sick person rather than a criminal
and acknowledging the inefficacy of criminal sanctioning in reducing drug use“.87 Alongside this
recommendation, the Commission recommended for the government’s mains focus on
implementation of this strategy to be on education, harm reduction and improving treatment and any
other relevant programmes that would aid drug users to restore their family, work and social
connections in society.88 This strategy incorporated an integrated package of measures rather than
focusing on decriminalisation alone.
82 European Commission, Eurobarometer, Public Opinion in the European Union, 1997, Report Number 47 at
page 32.
83 Portugal Drug Situation 2000, Report to the EMCDDA, Reitoc National Focal Point of Portugal, Instituto
Português da Droga e da Toxicodependência at page 34.
84 Ibid. at page 23-28.
85 Laqueur, “Uses and Abuses of Drug Decriminalization in Portugal” (2015), Law & Social Inquiry, Vol 40,
Issue 3, 746-781, at page 749 see also Ibid. at page 16-22.
86 Portuguese National Drug Strategy 1999, Resolution of the Council of Ministers No 46/99.
https://www.emcdda.europa.eu/system/files/att_119431_EN_Portugal%20Drug%20strategy%201999.pdf (date
accessed: 10 May 2020)
87Laqueur supra note 85 at page 749 – 750.
88 Portugal National Drug Strategy supra note 86, Chapter 2, principles, general objectives.
14
5.1 Decriminalisation
Following the Commission’s recommendation, the government took the radical step of responding to
the increase in drug use by decriminalising the personal possession of all illicit drugs, limited to a 10
day supply and to permit the use and acquisition of said drugs.89 By doing this they became the first
country in the world to embrace a multi-dimensional harm reduction policy that included not only a
change in the law but also a change in the supports available. Originally labelled an “experiment”90,
almost 20 years later it is still attracting international attention.
Under this decriminalisation framework, the sale and importation of illicit drugs remain illegal as well
as the trafficking of drugs, this is to ensure compliance with International law. The removal of
criminal sanctions for individuals who are found with drugs that would constitute personal use is now
treated as an administrative violation, which results in no criminal record, instead the sanction
available is limited to a monetary fine and recommended treatment options are given.91 Alongside this
and based on the Commission’s recommendation, Portugal invested heavily in the health and social
policy changes which have supported the shift towards a health centred and person-centred approach
to drug policy.
The removal of criminal sanctions does not mean the removal of all contact with the criminal justice
system. Police still retain a role in the discrimination framework. The police remain the main source
of detection and referral, those officers that witness drug use or possession are now required to issue a
citation to begin the administrative process by diverting the individual to the Drugs Dissuasion
Commission, but they are not permitted to make an arrest.92
89 Decriminalisation of Drug Use Act (Decree Law no. 30/2000), Article 2(2).
90 Van Het Loo, Beusekom, and Kahan. "Decriminalization of Drug use in Portugal: The Development of a
Policy." (2002) The Annals of the American Academy of Political and Social Science, vol. 582, no, pp. 49-63.
At page 49.
91 Article 2 states that “The consumption, acquisition and possession for one’s own consumption of plants,
substances or preparations listed in the tables referred to in the preceding article constitute an administrative
offence.” Own consumption is defined in Article 2(2) as “not exceeding 10 days’ supply”.
92 Greenwald, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies.
Washington, (2009), DC: CATO Institute at page 4.
15
5.2 The Drugs Dissuasion Commission
The Commission operate independently from the criminal justice system and consists of legal experts,
doctors and social workers. The Commission is set in an informal way to distance themselves from
the Court system, usually these take place in a room similar to a large office or meeting room, with
parties sitting around a large table. The sanctions that can be imposed by the commission range from a
monetary fine, a warning, a ban on visiting certain places or from associating with certain people, or
drug users can be directed to seek professional help, advice or treatment. The Commission does not
have the power to mandate treatment or to impose imprisonment.
In the absence of any evidence of addiction, the Commission’s role is to provide the individual with
information about treatment and harm reduction that is available to support them. In addition, the
Commission are mandated to suspend sanctions once the non-addicted person agrees to undergo and
complete treatment.93 Even with evidence of addiction, the Commission are vested with considerable
discretion to suspend sanctions once the individual agrees to undergo and complete treatment.94 If an
individual does not agree to treatment or fails to complete the treatment, the Commission can impose
sanctions such as a monetary fine or impose certain restrictions. Despite the heroin epidemic being the
main driving force behind the radical policy shift, the majority of citations that have been issued have
been to non-addicted cannabis users.95 Year on year, an estimated 80% of cases that came before the
Commission are suspended due to no evidence of addiction96, rising to 90% in 201897, instead
information about treatment and harm reduction are given to the individual. The probable sanction
under this framework for a cannabis user is a suspension of sanctions and information on treatment
and harm reduction.98 Each step of the process is designed to eliminate stigma that arises from
93 Decriminalisation of Drug Use Act (Decree Law no. 30/2000), Article 11(1) establishes that no sanction is to
be imposed where the offender is not an addict and has no prior offences, but they agree to undergo treatment.
94 Decriminalisation of Drug Use Act (Decree Law no. 30/2000), Article 11(3).
95 Laqueur supra note 85 at page 756.
96 Instituto da Droga e da Toxicodependência de Portugal (Institute on Drugs and Drug Addiction of Portugal),
“The National Situation Relating to Drugs and Dependency,” 2005 Annual Report (2006), p. 87.
97 SICAD, Serviço de Intervenção nos Comportamentos Aditivos e nas Dependências ,2018, Statistical
Bulletin on Illicit Substance” at page 7.
http://www.sicad.pt/BK/EstatisticaInvestigacao/Documents/2020/sinopses/SinopseEstatistica18_substanciasIlici
tas_EN.pdf (date accessed:23 June 2020)
98 European Monitoring Centre for Drugs and Drug Addiction, “Illicit Drug Use in the EU: Legislative
Approaches”, (2005) p. 27.
16
criminal proceedings and de-emphasise the guilt associated with drug use, while at the same time
emphasising and encouraging health and suitable treatment options.99
5.3 Effects of Decriminalisation in Portugal
None of the horrors predicted as a result of decriminalisation came to materialise, the experiment was
not a failure. The main fear was that there would be a dramatic rise in drug use.100 Instead, the
opposite happened, the level of drug use has declined, especially in the most at risk category of those
aged between 15-24101, which is now lower than the European average.102 Another fear associated with
decriminalisation was that Portugal would become a haven of drug tourism. A BBC report in 2004
with Fernando Negrao, a former police chief and head of the Institute for Drugs and Drug Addiction,
stated that the fears of Portugal becoming a drug paradise simply never happened.103 The majority of
individuals that receive a sanction are Portuguese or from Portuguese colonies.104 Enforcement
statistics pre-decriminalisation show that between 1990 and 1999, the number of individuals
criminalised for drug offences including drug trafficking tripled, from 3,586 to 13,020105 resulting in
Portugal having one of the highest rates of incarceration in Western Europe with the highest portion of
drug offence prisoners.106 Pre-decriminalisation, 43% of the prison population in Portugal was
incarcerated for drug law offences, post-decriminalisation this figure has dropped to 21%, a decrease
of some 50%.107 It must be noted that these figures incorporate those who have had more than a 10-
day supply and those low-level offenders involved in the drug trade.
99 Ibid.
100 Greenwald supra note 92, at page 11.
101 Balsa, C., Vital, C. and Urbano, C. (2013) ‘III Inquérito nacional ao consumo de substâncias psicoativas na
população portuguesa 2012: Relatório Preliminar’, CESNOVA – Centro de Estudos de Sociologia da
Universidade Nova de Lisboa, p. 59.
102 European Monitoring Centre for Drugs and Drug Addiction, ‘Drug Policy Profiles — Portugal’ (2011), p.
20, see also Greenwald supra 92 at page 11 – 15.
103 Please see the BBC Report, January 22 2004 http://news.bbc.co.uk/1/hi/world/europe/3421523.stm
104 90-94% of all citations are given to those of Portuguese nationality, other EU citizens make up a very small
number of citations given. See, Annual Report of Instituto da Droga e da Toxicodependência de Portugal (2006)
at page 99.
105 See European Monitoring Centre for Drugs and Drug Addiction, Statistical Bulletin 2004
http://stats04.emcdda.europa.eu/html.cfm/index5307EN.html (date accessed:28 July 2020)
106 Cunha, Manuela Ivone “From Neighbourhood to Prison: Women and the War on Drugs in Portugal.”
(2005) In Sudbury, “Global Lockdown: Race, Gender, and the Prison-Industrial Complex.” (Florence:
Routledge, 2014) at page 155.
107 Laqueur supra note 85 at page 758.
17
We cannot judge the full effects of decriminalisation by looking at drug use and imprisonment figures
alone. We must look at the wider picture of the effect on the quality of life of drug users. Ending the
criminalisation of drug users was not the sole cause of the impressive improvement in the lives of
drug users in Portugal. The most striking aspect of the Portuguese policy was to focus on the
individual drug user and their well-being from both a health and social well-being perspective.
Decriminalisation has addressed most of the social harms associated with drug use.108 By removing
the threat of criminal penalties, Portugal has erased a great deal of stigma that is associated with it.
Portugal doubled its investment of public funds in treatment and prevention services109, this alongside
decriminalisation and efforts to destigmatise drug use has led to an increased demand for treatment110,
thus reducing barriers to treatment and health services. Decriminalisation sends a message to society
that drug users are no longer criminals and it has reformed the social perception of drug users. In
general, it has contributed to a more tolerant attitude towards drug users, which is a result of
“reducing stigmatisation of drug use and increasing the opportunity of responses”.111 In my opinion,
the underlying philosophy of eliminating stigma and a person-focused approach was the driving force
for many of the advantages that we see today from a decriminalisation system, more so than any
practical changes in the legal sphere.
5.4 Criticism of Portuguese Decriminalisation
Criticism of a decriminalisation model are few and far between. Decriminalisation alone is no silver
bullet.112 Portugal has shown us that significant investment in alternatives such as treatment and
education are needed alongside it to have any major impact. As the number of individuals in the
criminal justice system decline there must be available suitable alternatives. Gaulao points out that the
success of Portugal is not because of decriminalisation, instead it is because of the commitment to
108 Greenwald supra note 92 at page 11.
109 Hughes, and Stevens, “The effects of the decriminalization of drug use in Portugal. Discussion paper.” The
Beckley Foundation, Oxford, (2015) at page 2.
110 Instituto da Droga e da Toxicodependência de Portugal (Institute on Drugs and Drug Addiction of
Portugal), “The National Situation Relating to Drugs and Dependency,” (2006) p. 3., see also Greenwald supra
note 92 at page 15.
111 Hughes and Stevens, “The Effects of Decriminalization of Drug Use in Portugal,” (2007) at page 7.
112 Interview with Joao Gaulao Director-General of Drug policy in Portugal and the Architect of the
decriminalsaton of drugs in Portugal. https://vancouversun.com/opinion/columnists/daphne-bramham-
decriminalization-is-no-silver-bullet-says-portugals-drug-czar (date accessed 03 September 2020)
18
provide citizens with the tools and opportunities “to be as healthy and as fully engaged with society as
possible “.113
Decriminalisation does not erase the illegal trade in drug cartels and drug trafficking will still be a
problem under this model. Prohibition in practice promotes “the cartelization of the drug industry”114
as it blocks those suppliers unwilling or unable to take the risk from entering the market. The black
market of drugs will fail to be regulated, which may result in contaminated drugs. This argument is
beyond the scope of this paper. The savings in costs associated with the removal of criminal sanctions
and imprisonment can be diverted towards enforcement of the international drug trade.
Additionally, there is the fear that without the deterrent of a criminal sanction drug use will increase,
and the use of drugs will become more open in society. Following the removal of criminal sanctions
in Portugal, drug use has not increased and has not become more visible in society.115 Few today
would argue that alcohol prohibition in the US was a successful policy or achieved to address the
social problems associated with alcohol, instead it resulted in an upsurge of alcohol consumption and
it increased by 60-70%.116 The same rhetoric can be applied to drug prohibition. Prohibition has not
succeeded in addressing the drug problems or the social ills associated with it, drug use has increased
globally117, along with the social effect of drug use.
Conclusion
Across the globe, countries including Ireland continue to rely on the criminal justice system to address
the issue of drug use in society. Prohibition and criminalisation have not been successful over the last
number of decades in addressing the consequences of drug use in society, instead drug use has
113 Ibid.
114 Coyne and Hall, “Four Decades and Counting: The Continued Failure of the War on Drugs” Cato Institute
2017.
115 Balsa, C., Vital, C. and Urbano, C. (2013) ‘III Inquérito nacional ao consumo de substâncias psicoativas na
população portuguesa 2012: Relatório Preliminar’, CESNOVA – Centro de Estudos de Sociologia da
Universidade Nova de Lisboa, p. 59.
116 Miron and Zwiebel, “Alcohol Consumption during Prohibition,” (1991) NBER Working Paper no. 3675, at
page 1. Available here https://www.nber.org/papers/w3675.pdf
117 United Nations Office on Drugs and Crime, World Drug Report 2016 (United Nations publication, Sales
No. E.16.XI.7) at page 1.
19
increased under prohibition. This criminalisation of individuals convicted of having drugs for personal
consumption has long lasting negative consequences for an individual’s life, far beyond any
deterrence effect. The stigma associated with drug use and a drug conviction can impact every aspect
of an individual’s life, from family and community relationships to employment. A harm reduction
approach to drug use advocates for an end to harms caused by drug use through a health led approach
of treating the individual as a patient and not a criminal. Additionally, it advocates that in order to
combat the harmful stigma associated with drug use and criminalisation, we need to decriminalise
personal possession of drugs.
Portugal’s “experiment” of decriminalisation in 2001 when announced was met with concern, with
little belief it would succeed. Almost 20 years later it is still attracting attention and international
praise. Alongside a decriminalisation of personal possession of illicit drugs, Portugal invested
significantly in the social and health supports. The rationale of Portugal’s approach was to address the
stigma associated with drug use. Once the stigma of criminality was removed, the health and well-
being of drug users increased. The results of Portugal’s “experiment” has illustrated that although
there is a place for treatment, not everyone needs it, and confirming that possession does not equal
addiction. Portugal has illustrated that the damaging effects of stigma need to be addressed and have
shown the benefits gained once it is removed.
20
Chapter 2
6. The Importance of Stigma
The success of the Portuguese model of decriminalisation, certainly, was not down to the removal of
criminal sanctions alone. It was bolstered by the increase in the social supports available to drug
users, these two combined helped to significantly reduce the stigma of drug use. It is this
stigmatisation that the Portuguese policy explicitly aims to prevent.118 Criminalisation has maximised
the harms caused by drug use, including the stigmatisation of users leading to a lack of social
integration.119 Ending criminalisation of drug users is a perquisite to any genuinely health led drug
policy.120 To further evaluate the impact of stigma associated with criminalisation of drug use can be
best described by utilising criminological theories.
Criminalisation can be attributed to many of the harms associated with drug use, harm reduction
advocates to end these harms. Stigma has been highlighted as one of those collateral consequences of
criminalisation over the last number of decades. In this chapter, I will examine the criminological
theories associated with stigma and illustrate how external and internal stigma can create major
barriers for achieving the goals of reintegration, recovery, and rehabilitation of drug users.
118Van Het Loo, Beusekom, and Kahan supra note 90 at page 58.
119 Global Drug Commission, “Taking Control: Pathways to Drug Policies that Work (2014) at page 20-21.
120 Ibid at page 20.
21
7. Them versus Us
Society has always had the need to mark some people as “outsiders”, those who are lawless, and
uncivilised. One famous influence on this theory is the work of Lombroso. In his book “The Criminal
Man”121 he focused on attempting to link the criminal man to physical traits such as jaw size, skull
size and tattoos. Although his original work on physical appearance has long been discredited122, the
“them versus us” philosophy that underpins his work is still alive today through labelling those who
do not conform to society as undesirables. This “othering” is still visible in today’s society through
discrimination and prejudice on the basis of race, disability, and for the purpose of this writing,
cannabis use. This “othering”, when applied to criminalisation, manifests itself in the label applied by
the criminal justice system.
8. Labelling
When an individual commits a crime such as personal possession of cannabis, it is assumed that the
individual will be processed through the criminal justice system. This system is based on the idea that
state intervention by way of a criminal sanction will reduce crime and deter future criminality.
However, the labelling perspective in criminology argues that instead of reducing crime in our society,
processing through the criminal justice system will have negative consequences on an individual that
will foster the very behaviour it was meant to deter. The roots of labelling theory are grounded in
social interactionism which seeks to explain crime and criminal behaviour. Social order in our society
is constructed through interactions, an important element of this is the shared meanings of language
and symbols, through which people of society construct a common definition.123
The foundations of labelling perspective can be attributed to the work of Tannenbaum124 and his
exploration of what he called “The Dramatization of Evil125” to categorise the labelling process. He
121 Lombroso, Criminal man. (Durham, NC: Duke University Press, 2006).
122 We are now aware that there are many variables in an individual’s life that will lead to a criminal act. The
influences can include a wide range of factors such as environmental, socio economic and genetics.
123 Murray, Labelling Theory: Empirical Tests. vol. 18, (Piscataway: Routledge, 2017) at page 14
124 Tannenbaum, Crime and the Community (New York: Ginn and Company,1938)
125 Ibid. at page 19.
22
used the example of male youths, describing a scenario where their actions of breaking windows,
climbing on roofs etc. are forms of play and adventure, but to the community these acts are a form of
delinquency.126 The community shifts from defining these acts as evil, to defining the person as evil.
Eventually all actions of the individual become the target of suspicion which increases the likelihood
of negative labelling in the community.127 In turn the individual will feel a sense of injustice by the
negative label and will recognise that the community defines them as a delinquent, different and evil.
This will alter the individual’s self-identity, which can then cause the youth to integrate with
delinquent subcultures in an effort to find some social shelter. Tannenbaum described the result of the
negative labelling as “the person becomes the thing he is described as being”.128
The focus on a societal reaction to crime was further developed by Lemert and Becker. Lemert
expanded upon Tannenbaum’s theory and introduced the distinction of primary and secondary
deviance. Primary deviance is a behaviour that departs from social norms but does not cause long
term consequences for the individual129 as it generally goes undetected or not labelled in a
stigmatising or negative way. He notes that most people “violate many laws during their lifetimes130
and the average individual will commit acts that can be defined as a crime but in society’s eyes, these
are not serious enough to warrant a negative reaction or negative label. Secondary deviance is
society’s response to an individual’s behaviour. This negative reaction from society to the deviant
behaviour results in othering the individual from the rest of society in the form of punishment and
stigmatisation which increases the probability of future deviance. This leads to the individual
internalising the criminal label and as a result becoming increasingly involved in the criminal
subculture. As Lemert states, when an individual employs deviant behaviour or a role based upon it as
a means of defence, attack or adjustment to the problems created by the social reaction to them, the
deviation is secondary.131 He argued that processing an individual through the criminal justice system
126 Ibid. at page 17.
127 Murray, supra note 123 at page 19.
128 Tannenbaum supra note 124 at page 20.
129Lemert, Social pathology; A systematic approach to the theory of sociopathic behaviour. (McGraw-
Hill.1951 at page 17.
130 Ibid. at page 42.
131 Ibid. at page 76.
23
results in stigmatisation at every stage, from arrest, appearance in court, punishment. In Lemert’s
eyes, the most important form of societal reaction comes in the form of the criminal justice system,
which legitimises society’s reaction.132
The most important contribution of labelling theory came from Becker in his 1963 work Outsiders133,
which solidified labelling as a dominant perspective in the criminological world. Becker argued that
once a person is labelled a criminal, they often face collateral consequences aside from the formal
labelling of the criminal justice system. This shows itself in the form of stigmatisation from the
community. In what became known as the statement of labelling theory, Becker provided a formal
labelling definition of deviance:
“[S]ocial groups create deviance by making rules whose infraction constitutes deviance, and
by applying those rules to particular people and labelling them as outsiders…. Deviance is not
a quality of the act the person commits, but rather a consequence of the application by others
of rules and sanctions to an “offender”. The deviant is one to whom that label has been
successfully applied: deviant behaviour is behaviour that people so label”.134
It is important to note that Becker’s work centred around cannabis users, he noted that cannabis users
were regarded in society as weak-willed individuals.135 He further notes that their criminal careers are
nothing more than a consequence of the societal reaction than any qualities of the act of using
cannabis.136 Cannabis users are then set aside from the rest of society and marked with stereotypical
undesirable characteristics, and as Becker argued this may become a “master status” of the individual,
overriding all other attributes and status that person may have had.137 When a cannabis user’s criminal
label becomes their master status, cannabis use becomes their defining feature of themselves, Jones et
al asserted that “a blind person can never just be a college student or a lawyer, at best they will be the
132 Murray, Joseph. Labelling Theory: Empirical Tests. vol. 18, Routledge, Piscataway, at page 20.
133 Becker, Outsiders; Studies in the Sociology of Deviance (New York: The Free Press, 1963)
134 at page 9.Ibid.
135 Schrag, Crime and Justice: American Style (Washington; National Institute of Mental Health, Centre for
Studies of Crime and Delinquency, 1971) at page 93.
136 Becker supra note 133 at page 34-35.
137 Becker supra note 133 at page 32.
24
blind college student or the blind lawyer138”, the same can be said for cannabis, a person is defined as
nothing else in society. This master status then becomes the “filter through which his or her other
characteristics can be seen139”.
Link expanded Becker’s labelling theory into a 5-stage process140 for which he found empirical
support.141 Although his work focused on the mentally ill, I will adapt his argument in the context of
cannabis users. In his first stage, the extent to which people believe that cannabis users will be
devalued in the community, is learned through socialisation.142 The greater that this belief is
embedded, the greater the expectation and reality of rejection. The second stage is official labelling by
an authority, which in turn validates and legitimises the societal rejection of cannabis users.143 Thirdly,
the cannabis user will respond to this rejection in three ways; by secrecy through concealment of his
usage, by withdrawing from the community which will in turn limit any social interaction with others
that stigmatise a cannabis user, or through education by which a cannabis user attempts to minimise
any stigma attached by educating others.144 The fourth stage is the negative consequences of labelling,
which includes self-esteem, and social and peer networks.145 This arises from the individual’s beliefs
that they now hold a devalued status. The fifth stage is where a cannabis user may become more
vulnerable to further deviant behaviour due to the previous steps.146
8.1 Labelling Critique
Labelling theory has its critics, and some have raised important concerns regarding its application and
its authority as a valid criminological perspective. For Wellford, the idea that no act is intrinsically
138 Jones, Farina, Hastorf, Markus, Miller, and Scott, Social Stigma: The Psychology of Marked Relationships.
(New York: Freeman, 1984) at page 157.
139 Ibid. at page 296.
140 Link, Bruce, et al. "A Modified Labelling Theory Approach to Mental Disorders: An Empirical
Assessment." (1989) American Sociological Review, vol. 54, no. 3, pp. 400-423.
141 Link, Bruce, et al Ibid. And also, Link, Bruce G. "Understanding Labelling Effects in the Area of Mental
Disorders: An Assessment of the Effects of Expectations of Rejection." (1987) American Sociological Review,
vol. 52, no. 1, pp. 96-112.
142 Link, Bruce, et al. supra note 140, at page 402.
143 Ibid. at page 403.
144 Ibid. at page 403.
145 Ibid. at page 403.
146 Ibid. 403-404.
25
criminal is false, although he did agree that it has some validity in regard to certain acts, but he argued
that there are some acts which are inherently criminal, such as murder and rape.147 These “legal
universals148” are criminal even in primate law, therefore crime is more than a societal reaction.
Although I can see the basis of Wellford’s argument, it is nonetheless a moralistic view. Almost five
decades after Wellford wrote his views on labelling theory, it is easier to determine that the definition
of crime is not a static concept.
For example, homosexuality was illegal in Ireland until 1993 and was only decriminalised due to a
shift in societal attitudes. Now Ireland is one of the most socially progressive countries in terms of
LGBTQ+ rights. In 2015, Ireland introduced marriage equality149 through popular vote. I argue that
similar societal shifts towards cannabis have begun. In some countries it has become socially
acceptable150 and in some cases legalised. Wellford’s view that some crimes are static such as murder
and rape does not stand up to scrutiny. In war times, murder is sanctioned and encouraged, without
attracting a negative label. In some cultures and societies, rape is permissible and legal. For example,
in Ireland, a man was permitted to rape his wife as it was not defined as a criminal offence until
1990.151
Another important concern regarding labelling theory is that we are only seeing one side of the coin as
there is a lack of empirical testing and evidence. It is difficult if not impossible to gather some vital
missing evidence, namely those who avoid the labelling effect of “getting caught”. Here I can
acknowledge a gap in the evidence, but nonetheless I assert that it is still a valid criminological
perspective. If we focus on those who have been caught, we can see the merit of the approach.
147 Wellford, “Labelling theory and criminology: An assessment.” (1975) Social Problems, vol ,22, no,3, 332–
345.at page 334-335.
148 Hoebel, The Law of Primitive Man: a study in comparative legal dynamics (Cambridge: Harvard
University Press, 1954) at page 286-287.
149 Marriage Act 2015.
150 European Monitoring Centre for Drugs and Drug Addiction “Cannabis legislation in Europe: an overview”
Publications Office of the European Union, Luxembourg at page 25.
151 Criminal Law (Rape) (Amendment) Act 1990, section 5.
26
8.2 Labelling and decriminalisation
The labelling of an individual as a criminal establishes how they will be viewed in society. The
criminal justice system contributes and legitimises the labelling process. Labelling supports harm
reduction and decriminalisation by removing the criminal label. Portugal, through decriminalisation,
has removed the negative label attached to drug users. Through decriminalisation and a change to
viewing an individual as a patient and not a criminal, it removes what Lemert defined as secondary
deviation, that views the person as a delinquent. This aids the drug user to avoid negative labels and
stigmatisation.
Bernburg & Krohn examined how intervention by the criminal justice system affects youths and their
likelihood of reoffending.152 They found that intervention by the criminal justice system had
detrimental effects on a youth’s life.153 Educational achievement and employment prospects are
affected which in turn increased their likelihood of reoffending and decreased their chances of
completing education.154 Bernburg drew on Becker’s work to examine if intervention promoted a
move towards deviant peer groups and reoffending.155 They found that youths who were in contact
with the criminal justice system were more likely to become members of a gang in later life156, and
also that it increased the seriousness of later offending.157 With more and more research into the field,
labelling theory is once again becoming an important topic in criminology.
9. Stigma
The similarities between the labelling perspective and the role of stigma in an individual cannot be
ignored. Although two separate concepts, both work well when applied together. Stigma stems from
the negative label that is applied to an individual, which in turn results in a change of the individuals
152 Bernburg & Krohn “Labelling, Life Chances and Adult Crime: the direct and indirect effects of official
intervention in adolescence on crime in early adulthood” (2003) Criminology, Beverly Hills, vol.41, no. 4 1287-
1318.
153 Ibid. at 1311-1313.
154 Ibid.
155 Bernburg, Krohn & Riveria “Official Labelling and Criminal Embeddedness and Subsequent Delinquency:
A longitude test of labelling theory,” (2006) Journal of Crime and Delinquency, vol. 43, no.1 67-88.
156 Ibid. at 81.
157 Ibid. at 82.
27
self-concept and social identity. As I have stated above, Portugal’s main focus in decriminalisation of
personal possession was to reduce the stigma associated with drug use and improve the quality of life
of those who use drugs in the areas of both health and well-being.158
The word “stigma” originated from the Greek language in the word “Stizein” that referred to a tattoo
that was used to mark slaves and criminals.159 The word continues to be used to illustrate undesirable
characteristics and a permeant disgrace today. Erving Goffman can be attributed to the exploration of
the effects of stigma on an individual in the field of criminology. His work160 examines the impact of
stigma on a person’s life. He defines stigma as ”an attribute that is deeply discrediting”161 and that
reduces the bearer from “a whole and unusual person, to a tainted, discounted one”162, and lists a few
examples such as blemishes, mental illness, imprisonment and addiction.163
Both labelling and Goffman’s stigmatisation theory are based on social interactionism and the social
label that is placed on an individual due to the social reaction. Both focus on the social reaction to
deviant behaviour and the consequences of the negative labelling. Similar to labelling, stigmatisation
can be found across the globe, but what is stigmatised varies from culture to culture, place, and
time.164 Once an individual is labelled in society as a criminal, it triggers a stigmatising reaction which
separates “them” from “us”. This separation brings with it the removal of an individual’s status in
society, which is then replaced by a master status linked to criminality. With a shift in global drug
policy towards a harm reduction approach there has been an increasing awareness of the impact of
stigma on drug users and a growing recognition that it can act as a barrier to recovery and social
reintegration.165 The issue of stigma has been widely accepted in some areas such as mental health and
158 Please see Chapter 1 at 5.2.
159 https://www.oxfordreference.com/view/10.1093/oi/authority.20111007171501221
160 Goffman, Stigma: Notes on the Management of Spoiled Identity. (Harmondsworth, Penguin, 1990).
161 Ibid at page 2.
162 Ibid. at page 12.
163 Ibid. at page 14.
164 Lloyd “The Stigmatisation of Problem Drug Users: a narrative literature review.” Drugs: education and
prevention and policy, vol. 20, no.2. 85-95 at page 85.
165 Ibid. page 86.
28
against this backdrop we are seeing an increasing level of research into the effects of stigma for drug
users.
Stigma can manifest itself in two ways. First, internal “felt”166 stigma, the self-stigma stems from the
fear of anticipated stigma and rejection from others. This process is where an individual, for the
purpose of this argument a cannabis user, thinks that most people of our society believe the common
negative stereotypes, resulting in fear of reaction and rejection. Secondly, external stigma or social
stigma, which can manifest itself in the disapproval and discrimination against drug users based on
perceived undesirable social characteristics. The level of this stigma can be a product of how
dangerous the individual is believed to be in the eyes of society. Jones et al opined that “investigations
of a variety of blemishes have shown that the more dangerous the possessor is thought to be, the more
rejected he or she is”.167
9.1 External Public stigma
Stigma that stems from society’s reaction to being labelled a drug user or a criminal can have highly
detrimental effects on the health and well-being of an individual. Drug use has always been a
stigmatising act from societies point of view and deemed unacceptable.168 Research has shown that
drug users in general are subject to a higher level of stigma from the general population than those
who suffer from mental illness.169 Although stigma is attached to drug users, the level of stigma
attached will vary by the type of drug, for example there is more public stigma associated with heroin
use than cannabis use170, which may be attributed to the slow shift in public attitudes that are
increasingly recognising the benefits of cannabis as a medicine. Many surveys have been conducted
166 Scambler & Hopkins, “Being Epileptic: coming to terms with stigma.” Sociology of Health and Illness,
vol.8, no.1, 26-43 at page 33.
167 Jones et al, supra note 138 at page 65.
168 Palamar, "A Pilot Study Examining Perceived Rejection and Secrecy in Relation to Illicit Drug use and
Associated Stigma." (2011) Drug and Alcohol Review, vol. 31, no. 4, 573-579 at page 575, see also Seth, and
Brown “Stigma towards Marijuana Users and Heroin Users.” (2015) Journal of Psychoactive Drugs. vol.47, no.
3, 213-220 at page 215.
169 van Boekel, et al. "Stigma among Health Professionals Towards Patients with Substance use Disorders and
its Consequences for Healthcare Delivery: Systematic Review." (2013) Drug and Alcohol Dependence, vol. 131,
no. 1-2, 23-35.at page 28.
170 Palamar supra note 168 at page 576.
29
on public attitudes towards drug use, with most attributing a high level of blameworthiness171. Jones et
al, illustrated how blame and responsibility are a central part of the stigmatisation process, with many
people believing that drug users are responsible for their own “mark”.172
In Ireland, attitudes to drug use have historically been negative and hostile. Research commissioned
by Citywide in 2016 shows that while there is softening of this attitude over the last 20 years, it still
remains largely negative.173 The findings of this survey state that two thirds of the general public
would not like a drug user in their neighbourhood, half the population stated they felt scared of drug
users and 90% believe that drugs are a major source of crime.174 This research has highlighted the
extent of the public stigmatisation process on drug users in Ireland.
9.2 Employment
This public stigmatisation has many wide-ranging negative effects on an individual’s life. By
criminalising an individual’s decision to possess cannabis, punitive measures by the criminal justice
system can severely impact the career prospects of an otherwise law-abiding person. Cannabis users
may already be battling with public condemnation or trying to establish a new social identity that is
not linked to their cannabis use, which results in low self-esteem and confidence which already may
restrict employment prospects. One study in this area found that these “stereotypes of drug users in
society create a major barrier to returning to the working life”.175 For a cannabis user that is trying to
rid themselves of the master status, employment can be a vital element in establishing a new social
identity that is not related to drug use.176 Cannabis users are often viewed negatively in society with
labels such as lazy and unreliable, with drug use a priority over anything else in their life. This
stereotype can impact their employment prospects. In a study by Klee et al, regarding employers
171 UK Drug Policy Commission, Lloyd “Sinning and Sinned Against: Stigmatisation of Problem Drug Users”
(2010) Policy Report at page 55.
172 Jones, et al supra note 138. at page 56.
173 Red C. Citywide, “Attitude to Drugs & Drug Users” (2016) Dublin.
https://www.drugsandalcohol.ie/26840/1/citywide_red_c_.pdf
174 Ibid
175 Klee et al, Employing Drug Users: individual and systematic barriers to rehabilitation, (York, Joseph
Rowntree foundation,2002) at page 4.
176 UK Drug Policy Commission supra note 174 at page 5.
30
concerns when employing a drug user, they found that employers were mainly concerned about
trustworthiness, absenteeism, unreliability, lacking concentration and the company’s reputation, all of
which stem from the stereotypical negative attitudes of the general public.177
The combined negative stigma of drug use and a criminal record was regarded as a major barrier to
employment, as many employers may seek disclosure of criminal history upon application. If an
individual has been convicted of personal possession of cannabis, this may often be enough to have
their application disregarded. Klee et al found that the root of this problem was the association
between drug use and crime.178Many employers do suggest that nonviolent crimes such as cannabis
were more acceptable than others, with many stating they would forgive crimes that were committed
some time ago upon the belief that people can change.179 Despite these positive statements, the legacy
of cannabis use and cannabis conviction can constitute a major barrier to employment prospects.
Removal of this barrier can only happen when we tackle the overall public condemnation and
stigmatisation of drug use through the decriminalisation process. By removing the power of the
criminal label, the stigmatisation of drug users will no longer hold legitimacy in society.
9.3 Stigma and health
The external stigma is not confined to the public realm. The stigma associated with drug use is
prevalent in the health field. In a study of UK district Nurses who work with drug users, Peckover and
Childaw180 found that the nurses’ accounts of drug users were “interwoven with prejudice and
stigma181”, with one nurse concerned of the “suboptimal care182” users receive. In a setting where
openness and honesty about an individual’s cannabis use is essential, reactions of health professionals
to drug use should be of compassion and empathy and not to reinforce societal stigma. The negative
attitudes towards drug users is widespread in the health setting. In pharmacy settings, many drug users
177 Klee et al supra note 175 at page 34-35.
178 Ibid. at page 35.
179 Ibid. at page 36.
180 Peckover, Chidlaw. "Too Frightened to Care? Accounts by District Nurses Working with Clients Who
Misuse Substances." (2007) Health & Social Care in the Community, vol. 15, no. 3, 238-245.
181 Ibid. At 240.
182 Ibid.
31
report negative attitudes of staff. Some drug users reported feeling humiliated and “outed” by their
visits, attributed to the attitudes of staff.183
In a study by Silins 184 on the impact of drug education on medical students, the study found that
compassionate attitudes towards drug users increased after education.185 Education tackling the
stigma associated with cannabis use is essential for users in order to receive the health service they
require. Without education, attitudes of health professionals may be influenced by the negative
stereotypes already prevalent in the general public. Research conducted by Miller et al186 has shown
that health professionals receive little to no training of addiction and drug related issues.187 In Ireland,
a study in 2008 by Kelleher & Cotter188 also found that the majority of health professionals in an
emergency setting receive no specific training related to drug use.189 This illustrates the barriers that
are facing cannabis users when attempting to access healthcare as healthcare professionals have little
to no understanding of their use or its affects.
9.4 Internal stigma
Internal or “felt” stigma occurs when an individual internalises what they perceive to be society’s
opinion of them. It is this fear of anticipated stigma that can often exceed any actual stigma.190 Due to
the private nature of the majority of cannabis users, many will often go to great lengths to conceal
their usage from others for fear of rejection. The combined nature of external and internal stigma
183 UK Drug Policy Commission supra note 174 at page 89.
184 Silins, et al. "The Influence of Structured Education and Clinical Experience on the Attitudes of Medical
Students Towards Substance Misusers." (2007) Drug and Alcohol Review, vol. 26, no. 2, 191-200.
185 Ibid .at 199.
186 Miller, Norman S., et al. "Why Physicians are Unprepared to Treat Patients Who have Alcohol- and Drug-
Related Disorders." Academic Medicine, vol. 76, no. 5, 2001, pp. 410-418.
187 Ibid miller at page 413.
188 Kelleher, Sean, and Patrick Cotter. "A Descriptive Study on Emergency Department Doctors’ and Nurses’
Knowledge and Attitudes Concerning Substance use and Substance Users." International Emergency Nursing,
vol. 17, no. 1, 2009, pp. 3-14.
189 Kelleher, Sean, and Patrick Cotter. "A Descriptive Study on Emergency Department Doctors’ and Nurses’
Knowledge and Attitudes Concerning Substance use and Substance Users." International Emergency Nursing,
vol. 17, no. 1, 2009, pp. 3-14. At page 12.
190 Scambler supra note 166 at page 33.
32
often leads those that are stigmatised towards negative thoughts and feelings about their self-image
and low self-esteem.191
9.5 Internal Stigma and the public
The fear of stigmatisation from the community impacts the social integration and reintegration of drug
users. Public stigmatisation can have a harmful effect on an individual’s internal sense of self. Vogel
et al in their study have shown that there is a significant relationship between this public stigma and
the “felt” stigma.192 This link between public stigma and internalised stigma often leads to a decline in
integration with the community and society at large. In a study by Buchannan & Young, they found
that that many users felt rejected and stigmatised by non-drug users, “they look down on me as scum
of the earth and someone not to be associated with”.193 This discrimination results in drug users
internalising the stigma and blaming themselves, which leads to a loss of confidence and low self-
esteem which is a key obstacle in recovery.194 The collateral consequence of this leads to many drug
users avoiding contact with the wider non-drug using community, and the hostile social environment
contributes to feelings of uneasiness, isolation and often being unable to integrate.195 Jackson et al
also found that relationships between drug users and non-drug users were almost non-existent due to
strong negative attitudes.196 With this breakdown of societal relationships from both the public stigma
and the resulting “felt” stigma, drug users will often withdraw from the community. This withdrawal
will push drug users further into the deviant subculture to seek social shelter. If we consider that the
goal of any good drug policy is to reintegrate drug users into the community, this creates a major
barrier to reintegration.
9.6 Stigma and treatment
191 Corrigan, Deepa, "On the Self-Stigma of Mental Illness: Stages, Disclosure, and Strategies for Change."
(2012) Canadian Journal of Psychiatry, vol. 57, no. 8, 464-469. At page 466.
192 Vogel, et al. "Is Stigma Internalized? the Longitudinal Impact of Public Stigma on Self-
Stigma."(2013) Journal of Counselling Psychology, vol. 60, no. 2, 311-316. At page 315.
193 Buchanan, Young “The War on Drugs a war on drug users?” (2000) Drugs: Education, Prevention and
Policy, vol.7, no.4, 409-422 at page 415.
194 Ibid. at page 414.
195 Ibid.at page 415.
196 Jackson, et al. "The Power of Relationships: Implications for Safer and Unsafe Practices among Injection
Drug Users."(2010) Drugs: Education, Prevention, and Policy, vol. 17, no. 3, 189-204 at page 198.
33
The “felt” stigma of drug use constitutes a major barrier to availing of and completing treatment
successfully. I have already illustrated that negative attitudes towards drug users exist and thrive in a
health setting.197 This external stigma has a direct relationship with “felt” stigma and can often
validate the “felt” stigma a drug user feels when accessing treatment. Cannabis users fear being seen
entering drug treatment, with one respondent in a study stating “I don’t want anyone to see me and
say, oh, look, because then they start making assumptions, is she a smackhead, you know198”. Drug
users will often avoid treatment as they regard treatment as only for “junkies”, by participating in
treatment they are signalling to the world that they have a severe problem, which in turn increases the
likelihood of negative labelling.199
Radcliff and Stevens describe how cannabis users regard treatment as for “junkies” and took great
lengths to distance themselves from that stigmatising label.200 They conclude by stating that more
needs to be done to destigmatise treatment services from the “junkie” stereotype and to help those to
escape the social stigma that is structuring their identity.201 The stigmatising label of those that enter
treatment often signifies to the world that they have a serious drug problem, those that experience this
label are more likely to be rejected by their family, friends, and community.202
The goal of a health centred approach to drug use is to encourage drug users to avail of treatment.
Portugal invested significantly in treatment options available to drug users when they decriminalised
drugs in 2001 and focused on emphasising health and treatment aspects.203 The rationale of this was to
remove the stigma attached to a criminal label that in turn would remove one of the key barriers to
treatment. The success of their approach is not down to legislative changes alone. Although the
majority of cases that come before the Commission are suspended without sanctions, the availability
197 See Chapter 2 at 9.3.
198 Stevens, Radcliff, “Are Drug Treatment Services only for ‘thieving junkie scumbags’? Drug Users and the
Management of Stigmatised Identities” (1982) Social Science and Medicine, vol.67, no. 7, 1065-1073 at 1069.
199 Semple, et al "Utilization of Drug Treatment Programs by Methamphetamine Users: The Role of Social
Stigma." (2005) American Journal on Addictions, vol. 14, no. 4, 367-380. At page 374.
200 Ibid. at 1068.
201 Ibid. at 1072.
202 Semple, supra note 199 at page 375.
203 Greenwald supra note 192 at page 6.
34
of suitable treatment options increased. Due to this, Portugal has reported an increase in demand for
treatment services since 2001, in the first two years alone the number of people availing of treatment
jumped significantly by 147%.204 By sending a message that drug users are not criminals, social
perceptions of drug users have slowly changed, this has impacted the level of “felt” stigma an
individual experiences, leading to drug users feeling empowered to seek treatment.205
Conclusion
Harm reduction advocates to end criminalisation of drug use among other aspects. With an increasing
focus on the effects of stigma, I examined the relevant criminological theories. Society has
historically had a need to label individuals as “others” and create a “them” versus “us” scenario. How
this is achieved in todays’ world is through labelling an individual as an “other”. Labelling theory is
grounded in social interactionism which focuses on the reaction of society to a deviant act. By
labelling this deviant act as criminal, we stigmatise an individual with the criminal label. This
stigmatisation in turn has negative consequences for an individual.
Decriminalisation and legislative changes alone are not sufficient for a successful policy, what is
needed is measures to address the stigma associated with drug use. Decriminalisation is the first step
in addressing this as it removes the legitimising effect that a criminal label brings, and in turn will
filter through to society. By sending a message that drug users are not criminals, we destigmatise drug
use. This will filter through to the public image of drug users and in time, change their perceptions of
users. It is safe to say this change in perception is vital to removing the stigma.
204 Hughes, Stevens, “The Effects of Decriminalization of Drug Use in Portugal. The effects of
decriminalization of drug use in Portugal.” (2007) The Berkley Foundation Drug Policy Programme, at page 2.
205 Ibid at page 7.
35
Chapter 3
Introduction
In this chapter I will discuss the future of Irish drug policy. Prior to the introduction of Reducing
Harm, Supporting Recovery- a health led response to drug and alcohol use in Ireland 2017-2025206,
Ireland’s current drug strategy, there were calls to decriminalise and destigmatise drug use in our
society. Despite these calls, decriminalisation and measures to address stigma are not included in the
strategy. I will illustrate how the goals of rehabilitation and recovery will fail to be met without the
removal of the stigmatising criminal label. I will further illustrate the barriers that remain for drug
users in accessing treatment and health services. The strategy aims to engage families and
communities in promoting positive social change, but as my research will show, stigmatising and
negative attitudes towards drug users creates an invisible barrier to achieving this goal.
10. What does the future hold for Ireland?
Ireland’s current approach to personal possession of drugs is historically embedded in a system of
criminalisation and stigmatisation. The unintended consequences of prohibition, criminalisation and
the effects of stigmatisation can cause many hidden barriers to the success of implementation of a
drug policy. The deterrence element of the current legislative provisions has not achieved the goal of
deterring drug use. Instead drug use has continued to rise in Ireland207 with the probability of getting
caught for personal possession of cannabis an estimated 1%.208
The Irish Government are aware that there is a significant shift in the global attitude towards drug use,
with countries moving to decriminalise drug use and international calls to address the stigma of
206 Department of Health,” Reducing Harm, Supporting Recovery: A Health-led Response to Drug and
Alcohol Use in Ireland, 2017-2025”.
207National Advisory Committee on Drugs and Alcohol, Prevalence of Drug Use in Ireland, and Drug Use in
Northern Ireland 2014/2015: Regional Drug and Alcohol Task Force (Ireland) and Health and Social Care Trust
(Northern Ireland) Results. At page 13.
208 Nguyen. & Reuter. “How risky is marijuana possession? Considering the role of age, race and gender.”
Crime & Delinquency, vol. 58, no. 6, 879-910 at page 879.
36
criminalisation.209 Following on from a commitment from the Government in 2016 to pursue a health
approach to drug use in Ireland rather than a criminal justice approach, with an emphasis on
rebuilding lives210, 2017 saw the introduction of Reducing Harm, Supporting Recovery- a health led
response to drug and alcohol use in Ireland 2017-2025.211 The strategy was promised as a health led
and person-centred approach to drug and alcohol use in Ireland212. During the launch of the strategy,
the Taoiseach proudly announced that drug use should be treated as a health issue and not a criminal
justice issue213 incorporating a “whole-of-government response”.214 To inform this new strategy, a
public consultation was undertaken by the Department of Health. A recurring theme in these
submissions was the need to change the stigma towards drug users because they should not be
criminalised, instead drug use should be treated as a health issue.215 A submission from the Peter
McVerry Trust216 called for a specific commitment contained within the National Drug Strategy to
address the stigma of drug use.217 Throughout the many submissions received, stigma of drug users,
their family and community were a recurring issue that many were of the opinion needed to be
addressed.
Despite these calls the National Drug Strategy is silent on the issue.218 Additionally, stigma plays a
minor role in the strategy. It is only referenced twice, once as a suggested barrier to treatment219, and
once in regard to the stigma associated with pregnancy and drug use. 220
209 See Chapter 1 at 3.1
210 Department of Health, Press Release https://www.gov.ie/en/press-release/b09da3-taoiseach-launches-
reducing-harm-supporting-recovery-a-health-led-re/ (date accessed:20 July 2020)
211 Drugs Strategy supra note 206.
212 Department of Health Press Release supra note 229.
213 Ibid.
214 Ibid.
215 Department of Health, “Report on Public Consultation undertaken to inform the new National Drugs
Strategy” May 2017, at page 2.
216 Peter McVerry Trust is a charity that aims to address homelessness, housing issues and drug use.
217 Department of Health supra note 215 at page 31.
218 Drugs Strategy supra note 206 at page 12. Decriminalisation is only mentioned once in the document
merely to say that it was called for.
219 Ibid. at page 13.
220 Ibid at page 42.
37
11. Vision and values
The National Drug Strategy sets out its overarching vision of a “healthier and safer ireland, where
public health and safety is protected and the harms caused to individuals, families and communities
by substance misuse are reduced and every person affected by substance use is empowered to improve
their health and wellbeing and quality of life“.221 This vision is underpinned by a number of strategic
goals such as promoting rehabilitation, health and recovery, minimising harms caused by drug use, to
increasing the role of families, community and individuals in addressing the drug issues in society.222
There are many objectives contained in the strategy that without decriminalisation and measures to
address the stigma, will fail to meet their full potential.
11.1 Recovery and Rehabilitation
One of the core objectives of the strategy is to promote rehabilitation and recovery.223 As I have
previously explored, stigma is a major barrier to achieving this goal.224 Rehabilitation and recovery
can mean different things to different people. This is acknowledged in the National Drug Strategy.
Recovery and rehabilitation may mean achieving a life free from drugs for one individual, or it may
mean overcoming reliance on drug dependence for another225, but it is not dependant on abstinence.
The continuum of care model226 proposed by this strategy is wide ranging and of a broad focus that
includes drug users at different stages. This model proposes timely access to appropriate services,
suitable to their level of needs and circumstances.227 Contained in this model of care are four tiers
responding to different levels of drug use.228 Ranging from Tier one where the main focus is not
treatment but instead family, social and health supports, alongside criminal justice and probation
services support for those caught in the criminal justice system.229 Tier two to four are intervention
focused, all dependent on the needs of the person, from community setting interventions to pharmacy
221 Ibid at page 16.
222 Ibid at page 17-18.
223 Ibid at page 17-18.
224 See Chapter 2, at 9.3.
225 Drugs Strategy supra note 206 at page 33.
226 Ibid.at page 33.
227 Ibid at page 33.
228 Ibid at page 34.
229 Ibid at page 34.
38
interventions, to residential interventions.230 This tiered approach to services recognises that every
individual is different in their recovery and aims to achieve the objective of the goal. This approach is
not new, it was previously contained in the National Drug Strategy (Interim) 2009-2016.231 Although
now a more refined model, barriers in accessing services still exist.
The “felt” stigma of treatment can often leave drug users feeling humiliated and shamed. This stigma
can constitute a major barrier in accessing health services, often leading to drug users delaying
seeking help. As I have previously discussed in Chapter 2232, the stigma of accessing treatment can
signify to the community that they have a severe drug problem, which increases the level of stigma.
For a cannabis user, treatment is seen as for “junkies” and “smackheads”, a label which many seek to
avoid. In a small country like Ireland, simply getting a certain bus, entering a certain building etc, can
inform the community that an individual is accessing treatment, treatment that is regarded as “for
junkies”.
The core rationale of decriminalisation in Portugal was to remove the barrier of stigma and enable
effective treatment options.233 Greenwald notes that by removing the barrier of stigma attached to
criminalisation, it removed a key barrier for those wishing to seek treatment.234 By removing this
barrier, treatment numbers have increased significantly. As noted in Chapter 1, treatment numbers in
Portugal between 1998-2008 rose from 23,654 to 38,532.235 A rise in these numbers could be
attributed to the legislative regime of the Drugs Dissuasion Commission, where they encourage access
and completion of treatment services in lieu of imposing a sanction. However, it is also worth
considering that 80-90% of cases before the Commission result in no sanctions or treatment
referrals.236 There is a clear trend across the EU to move away from a criminal justice response in
cases of small amounts of cannabis and move towards an approach that is focused on prevention and
230 Ibid at page 34.
231 Department of Community, Rural and Gaeltacht Affairs, National Drug Strategy (interim) 2009-2016 at
page 42.
232 See Chapter 2, at 9.3.
233 Greenwald supra note 92 at page 9.
234 Greenwald supra note 92 at page 9.
235 Hughes, And Stevens. "What can we Learn from the Portuguese Decriminalization of Illicit
Drugs?" (2010) British Journal of Criminology, vol. 50, no. 6, pp. 999-1022. at page 1015.
236 See Chapter 1 at 5.2.
39
treatment237, one which Ireland seems slow to follow. For Ireland to accomplish the same, not only is
there a need to decriminalise personal possession, but also to destigmatise drug use, alongside a
significant investment in wrap around services. The National Drug Strategy acknowledges the need
for significant investment in this area. Despite the increase in residential and rehabilitation services,
there still remains barriers in accessibility. There is a need to provide wider geographic access and
diversify treatment options.238 If recovery and reintegration is the goal of rehabilitation, then the
exclusion of the impact of stigma is to the detriment of not only drug users but also achieving this
goal.
11.2 Health of drug users
The National Drug Strategy does discuss access to health services for drug users, although the
discussion is limited to the context of localised and community based treatment options.239 I find it
concerning that there is no discussion around the everyday health of drug users. At a basic level of
health care, access to GPs and referral pathways are limited.240 A review of the previous Drug Strategy
in 2016 highlighted the reluctance or inability of GPs in accepting drug users as clients.241 Specialist
GPs who are trained in drug services, were unable to refer clients due to lack of available services and
barriers such as geographic location and childcare .242
The stigma of drug use constitutes a major barrier in the accessing of health services and treatment. I
have previously discussed the external stigma from the health profession.243 The attitudes of staff are
“interwoven with predjuce and stigma” resulting often in suboptimal care.244 This is illustrated by the
reluctance of some GPs in Ireland to take on clients that are drug users.245 This negative labelling and
stigmatisation of drug users is often due to a lack of education and training on substance use. Studies
237 European Monitoring Centre for Drugs and Drug Addiction, “The State of the Drugs Problem in Europe”
Annual Report 2005 at page 40-41.
238 Drugs Strategy supra note 206 at page 8.
239 Drugs Strategy supra note 206 at page 37.
240 Griffiths et al, “Report of the Rapid Expert Review of the National Drugs Strategy 2009-2016” at page 21.
241 Ibid. at page 21.
242 Ibid. at page 22.
243 See Chapter 2 at 9.3
244 Peckover and Chidlaw supra note 180 at page 240.
245 Griffiths supra note 240 at page 21.
40
have shown that compassion towards drug users in a health setting increased after education.246 In a
recent Irish survey on the attitudes of General Practitioners regarding the decriminalisation of
cannabis, Crowley states that GPs in Ireland do receive basic training on substance misuse in
Ireland.247 In Crowley’s survey, the majority of Irish GPs did not support the decriminalisation of
cannabis, but male respondents were more likely to support decriminalisation over their female
counterparts.248 Crowley’s survey also found that GPs who are trained to a specialised level in
addictions and drug related specialisation supported decriminalisation249, which again suggests that
education of health professionals is the key in solving stigma of drug users. Portugal alongside
decriminalisation has made significant efforts to scale up the availability of treatment and also in the
training of medical staff. All doctors, psychologists and nurses receive education about drugs and
addiction as part of their formal medical training.250
In a study by Livingston et al, they suggest that incorporating drug education into the medical
education can cause a decrease in negative attitudes and increased the feeling of responsibility
towards drug users.251 Drug education should not be just for the young school aged youths, it needs
to be incorporated into every aspect of our social structure to ensure that the “felt” and external stigma
remains as minimal as possible.
11.3 Education and prevention
One of Ireland’s National Drug Strategy objectives is to promote health, to be achieved by awareness
and education in a community setting such as youth services and schools.252 Drug education and
awareness is highly important in the prevention of future drug use, but the strategy is vague and
246 Silins et al supra note 184 at page 199.
247 Crowley, Des, et al. "Irish General Practitioner Attitudes Toward Decriminalisation and Medical use of
Cannabis: Results from a National Survey." (2017) Harm Reduction Journal, vol. 14, no. 1, pp. 4. At page 3.
248 Ibid. at page 6.
249 Ibid. at page 4.
250 Drug Policy Alliance, “Drug Decriminalisation in Portugal: Learning from a Health and Human-Centred
Approach”, at page 5 https://www.drugpolicy.org/sites/default/files/dpa-drug-decriminalization-portugal-health-
human-centered-approach_0.pdf (date accessed: 06 June 2020)
251 Livingston, James D., et al. "The Effectiveness of Interventions for Reducing Stigma Related to Substance
use Disorders: A Systematic Review." (2012) Addiction (Abingdon, England), vol. 107, no. 1 pp. 39-50. At page
46.
252 National Drugs Strategy supra note 206 at page 21.
41
narrowly focused. The strategy aims to target school-aged youths, by way of school intervention and
youth services. Drug education is vital in reaching the most at risk group of young people, those aged
15-24. Research has shown that 90% of schools in Ireland currently deliver drug education through
their curriculum and these have been proven to be effective.253 It has been highlighted by The
National Drug Education and Prevention Forum that the current drug education in a school setting
lacks consistency and standardisation.254 Without regulating the delivery of drug education and
upskilling of those delivering the education, it leaves the door open for a significant amount of
influence on the delivery of this education, with schools open to using shock tactics. These tactics
alongside testimonials from ex drug users have been counterproductive in the past and have little
influence on changing behaviour.255
However, some of the most at-risk young people may not be in education and therefore are not
availing of this education on offer. Although Ireland has a low rate of early school leaving by
European standards, research has shown that those who leave school early are twice as likely to have
tried cannabis.256 The strategy aims to achieve its goal by extending education to youth-based
services.257 By basing this education in a school or youth service setting, it is excluding a large cohort
of youths who are early school leavers and do not avail of youth services. These youths may often be
the most vulnerable to drug use in a community.
In Portugal, drug education is one of the main focuses of the Drug Strategy.258 It is incorporated into
decriminalisation, through the Dissuasion Commission, which has shown to be successful in
combatting problematic drug use.259 There is unanimity in the view that the successes of the
253 Ibid. at page 24.
254 The National Drug Education and Prevention Forum 2019, Rapporteur’s Report, Dr O’Reilly. At page 9.
255 Drugs Strategy supra note 206 at page 21.
256 Haase, Pratschke, Risk and Protection Factors for Substance Use Among Young People: a comparative
study of early school leavers and school attending students. Dublin: National Advisory Committee on Drugs,
2010. At page 72.
257 Drugs Strategy supra note 206 at page 24.
258 Portugal Drug Strategy supra note 96 at 37.
259 Hughes and Stevens supra note 111 at page 5.
42
Portuguese model of decriminalisation, which includes a diversion to drug education, were due to the
ability of Portugal to provide more extensive treatment and education programmes.260
Drug education needs to be universal if we are determined to tackle the stigma associated. A priority
for this education needs to be a reframing of the “drugs are bad” rhetoric and replaced with
comprehensive rounded education based on the principle that drug users are not criminals. Drug
education should also include education on drug types, dosage and effects, but most importantly, side
effects. This will ensure that those who do decide to take illegal substances are equipped with the
knowledge needed to do it as safely as possible.
11.4 Family and Community
Participation of families and the community are a key feature of the National Drug Policy261 and it
cuts across all goals and objectives.262 The strategy suggests that community and families should be
enabled in participation in decisions that affect them, through participation and engagement in policy
development. The strategy acknowledges the important role that they play in promoting positive
societal change.263 At an individual level, the National Drug Strategy emphasises the important role
service users can play in shaping and designing effective services,264 as well as having a voice in their
own treatment plan.265
For positive societal change to happen, we need to change public attitudes and perceptions of drug
users. The reliance on criminalisation in Ireland has promoted public attitudes that are anti-drugs and
anti-drug user266, which perpetuates a social culture that results in stigmatisation and isolation of drug
users that are burdened with the identity of a criminal. Although dated, the 2000 study Drug Related
Knowledge, Attitudes and Beliefs in Ireland267 can give us a glimpse into the public perception of drug
260 Greenwald supra note 92 at page 19.
261 Drugs Strategy supra note 206 at page 63.
262 Ibid, contained in the overall vision at page 8, also contained in promoting health at page 21.
263 Ibid at page 63.
264 Ibid. at page 66.
265 Ibid at page 67.
266 Cassin, and O ’Mahony, “Criminal Justice Drug Policy in Ireland”. (2006) Policy Paper 1. Drug Policy
Action Group. Dublin at para 4.3.
267 Bryan, Moran, Farrell, and O'Brien “Drug-Related Knowledge, Attitudes and Beliefs in Ireland: Report of
a Nation-Wide Survey” (2012). Dublin: The Health Research Board.
43
users in Ireland. This study questioned a total of 1,000 individuals randomly selected from the 1997
Register of Electors for Ireland.268 The study showed that over half of those surveyed thought that all
drug addicts are dangerous, over 60% stated that drug users scare them, over 70% stated they would
tend avoid a drug user269 and importantly, 69% stated that it would concern them to live near a person
who uses drugs.270
A recent example of this can be seen in Dublin, in 2014 the Dun Laoghaire Rate Payers Association
called for the closure of a harm reduction clinic in their area. They issued cards and leaflets to the
local public which read “The Walking Dead, Courtesy of the HSE” with images of zombies as part of
their campaign271. Further statistics in the 2000 study illustrate that the general public lack sympathy
for drug users272, but the younger age groups from 18-29 did display more sympathy.273 This younger
group was less likely to view a person who uses drugs as a criminal, compared with 54% of those
over 66.274 More recent research conducted by RedC on behalf of Citywide, interviewed just over
1,000 people. Although a less detailed questionnaire than the 2000 study, it shows that attitudes
towards drug use is softening but it still remains largely negative.275
The above study illustrates that the stigmatisation of drug users is alive and thriving in Irish society
with largely negative beliefs and attitudes. When Portugal decriminalised personal possession of
drugs, their main focus was to combat the stigma. By decriminalising drug use, it sends a clear
message to the public that drug users are not criminals. The reform has contributed to a more tolerant
society that integrates drug users back into the community.276 Both professionals and the general
268 Ibid. at page 13-17. More information regarding methodology and data collection can be found in Chapter
2
269 Ibid at page 21.
270 Ibid. at page 27.
271 Stop the Stigma Position Paper, Citywide Drugs Crisis Campaign, at page 10, see also 98FM radio player
with discussion on the topic. http://player.98fm.com/Dun-Laoghaire-Residents-Call-For-Closure-Of-Drug-
Clinic , extract from the Herald.ie can be found https://www.herald.ie/news/zombie-cards-sent-in-attempt-to-
close-addict-clinic-30752370.html (date accessed: 06 July 20)
272 Bryan, Moran, Farrell, and O'Brien supra note 267 at page 27.
273 Ibid at 29.
274 Ibid.
275 Red C. Citywide supra note 173.
276 Hughes and Stevens supra note 111 at page 7.
44
public have commented on the impact of decriminalisation stating “[i]t had a very positive effect on
reducing stigmatisation of drug users and increasing opportunities for responses they need”.277
Decriminalisation has reduced the fear in the general public towards drug users, with most of the
public now more likely to encourage users to obtain assistance.278
If Ireland wants to harness the power of families and the community to promote positive societal
change, attitudes and perceptions of drug users needs to be addressed. As I have explored in Chapter
2279, criminalisation and stigmatisation of drug users will often force them to withdraw from their
family and community. The stigma that stems from the community setting holds a vast amount of
power over an individual’s life, stigmatisation is learned through social interaction within these
communities. The first rejection due to stigma that an individual will experience will often be at a
community or family level, which can create a hostile social environment. Decriminalisation takes
away the power of the negative label and no longer validates people’s beliefs and attitudes, it is the
first step in removing the stigma.
12. Working Group
One of the key goals of the National Drug Strategy was to establish a Working Group to consider
alternative approaches to personal possession of drugs in Ireland. This willingness to examine the
criminal statutes of personal possession reflects the drug policy debate internationally.
In 2017, Catherine Byrne, the Minister for Health Promotion, and the National Drugs Strategy,
announced the establishment of a Working Group to consider alternative approaches to personal
possession in Ireland. The programme for the working group was to examine alternative approaches
to personal possession of drugs in other jurisdictions and report back to the Minister for Health,
Simon Harris, the Minister for Health Promotion and the National Drugs Strategy, Catherine Byrne,
and the Minister for Justice and Equality, Charlie Flanagan. Membership of this working group was
277 Ibid. at page 7.
278 Ibid. at page 7.
279 See Chapter 2 at 8, 9.5.
45
drawn from a wide variety of departments such as An Garda Síochána, The Probation Service, DPP,
Health and Justice, chaired by retired Judge of the Court of Appeal, Garret Sheehan. It also consisted
of people with a lived experience of using drugs to ensure a well-rounded discussion regarding
personal possession of drugs.280
12.1 Report of the Working Group
The Department of Health and the Department of Justice and Equality have joint responsibility for the
establishment of this working group in line with Action 3.1.35281 of the National Drug Strategy. The
report of the Working Group was submitted in 2019. The report confirmed the overwhelming trend to
move towards decriminalisation of personal possession, both at a European level and an International
level.282 The report further acknowledged the harmful effects of stigma associated with criminalisation
in areas such as employment and access to services.283 The influence of stigma was a recurring theme
throughout this report, with a focus on the life-long unintended consequences of the current
criminalisation284, that can lead to marginalising people who need support and not punishment.285
The working group examined the current decriminalisation regime in Portugal, noting that among
other things, it had a positive effect on avoiding the collateral consequences of criminalisation,
improving social integration, and reducing drug related harms.286 In their overall recommendations,
the working group did not recommend full decriminalisation, or a decriminalisation with diversion to
appropriate services approach that Portugal currently operates. Although it did recommend that “a
person should be afforded the opportunity to avoid a criminal conviction for personal possession of
drugs”.287 Instead, it recommended a hybrid approach due to Ireland’s high levels of cannabis and
heroin use.288 This approach would depenalise minor drug possession offences coupled with targeted
280 Drugs Strategy supra note 206, action 3.1.35
281 Ibid
282 Drugs Strategy supra note 206 at page 13.
283 Ibid at page 13.
284 Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use Report at
page 25.
285 Ibid. at page 48.
286 Ibid. at page 69.
287 Ibid.at page 58.
288 Ibid.at page 46.
46
diversion for those offenders who are more likely to need it.289 The working group recommended a
range of alternative approaches to criminalisation of personal possession to achieve this hybrid
approach.
12.2 Adult Caution
The working group recommended to extend the current Adult Caution Scheme to incorporate simple
possession of drugs for personal use. Gardai that come into contact with an individual that possesses
drugs can issue a caution and provide harm reduction information alongside information on health and
social services.290 This caution would be extended to first time offenders only but similar to the
current functioning of the scheme, with approval of the DPP, a second caution may be given. The
Gardai would still remain the first point of contact for drug users under this scheme with cautions
required to take place in a Garda Station and not on the street.
Based on the recommendations of the working group, in August 2019, the Government announced a
new health diversion approach to personal possession of drugs. This offers an alternative to criminal
conviction for the first two instances in which people are found in possession of drugs for personal
use. On the first occasion, the Gardai will refer an individual, on a mandatory basis, to the Health
Service for a health screening and a brief intervention.291 On the second occasion, the Gardai will have
the discretion to issue an adult caution, in line with the current regime292. On the third or subsequent
occasion, the individual will be dealt with criminally under Section 3 of the 1977 act, under which
they can receive a criminal conviction or a custodial sentence.293
The mandatory referral to the HSE for a first offence is unnecessary, as we can see from the evidence
in Portugal the vast majority of drug use in society is by individuals who do not struggle with drug
use. Therefore, treatment is not needed. Portugal recognises that possession does not equal addiction.
289 Ibid at page 46.
290 Ibid.at page 58.
291 Dillon, Lucy, Government announces new Health Diversion Approach to drug possession for personal use.
(2019) Drugnet Ireland, Issue 71, Autumn 2019, pp. 1-5. At page 3.
292 Ibid.
293 Ibid.
47
Additionally, this mandatory referral will force drug users to undergo an assessment for fear of
prosecution through the criminal justice system. The use of the Adult Caution Scheme is not a fix-all
solution, it is a complex system that requires the involvement of not only the Gardai but also the
superintendent, referral forms and meetings that take place in a criminal setting, i.e. the Garda Station.
This scheme is limited in its accessibility as generally you can only be considered if you have no
previous convictions. Although a previous conviction does not exclude an individual from this
scheme, it is targeted at those unlikely to reoffend.294 To avail of this scheme an individual must admit
guilt. This admission of guilt may be brought up at sentencing for any future convictions.
The government acknowledges that drug use is a health issue and one that does not need to be
addressed by the criminal justice system, until you have been caught a third time in possession. This
3-strike element will only further stigmatise an already excluded group in society. Those most likely
to be caught for a third offence are those who are visible and in the public domain, such as homeless
people who are forced to use drugs in public, and others who cannot get out of sight of the Gardai.
This system diverts drug users to a health services, only then to redivert them back through the
criminal justice system, no other health system relies on the criminal justice system for
enforcement.295
This reinforces a sense of criminality for drug users. As per my previous discussion296, contact with
policing and justice systems can exacerbate the “felt” stigma an individual feels, often leaving them
humiliated, shamed, stigmatised and alienated. At the time of writing, this recommendation is still
under consideration by the relevant authorities, but implementation can be expected sooner rather than
later. This policy is not fit for purpose, it is stigmatising. It makes it clear that drug users are worthy of
help and support but only if they manage to keep themselves hidden away from detection. If they do
manage to achieve this, society will extend an olive branch, but only twice, before reverting to the
criminal justice approach.
294 Adult Caution Scheme 2006, (i)(b).
295 Marcus Keane, Head of Policy at the Ana Liffey Drug Project, Interview 7 August 2019.
https://www.thejournal.ie/readme/opinion-marcus-keane-drug-possession-policy-4754411-Aug2019/ 7 (Date
accessed: 09 May 2020)
296 See Chapter 2 at 9.7.
48
13. Social integration
Decriminalisation is the first step in the successful reintegration of drug users back into society. A
history of criminalisation has maximised the harms caused by drug use, including the stigmatisation
of users leading to a lack of social integration.297 Social integration should be a core objective of any
drug policy as drug use cannot be treated in isolation. Without integration measures, there is a danger
that the gains made during treatment will be undermined.298 There are a range of factors that
contribute to social isolation that I have explored in Chapter 2.299 The stigma from communities,
family, and the general public results in exclusion from every angle for a person who uses drugs. In
order for a person who uses drugs to integrate into society, the master status of drug use must be
overcome. To establish this, the spoiled identity must be transformed. The individual must establish a
new identity in society, one not related to drugs. This recovery from a spoiled identity is a simple
concept that makes it appealing to policy makers and service providers, and it must be harnessed.
Conclusion
As we come to the end, the main aim of this writing was to recognise, if and why Ireland should
decriminalise the personal possession of drugs, namely I have focused on cannabis. My research
aimed to identify the current scope of bother domestic an international law and policy, to which I have
concluded that under international law, decriminalisation of personal possession and divergence
towards education and treatment alternatives is permitted and encouraged. I have made it evident that,
the international attitudes towards prohibition is shifting towards encompassing harm reduction
strategies in policy making. Harm reduction has traditionally focused on healthification of drug
policies to minimise the physical harms caused by drug use. Often overlooked in the discussion of
harm reduction is the role of stigma. The stigma associated with the criminal label of drug use can
often exacerbate the harms of drug use. This stigma has far reaching and long-lasting effects beyond
297 Global Drug Commission, “Taking Control: Pathways to Drug Policies that Work” at page 20-21.
298 European Monitoring Centre for Drug and Drug Addition, “Social Reintegration and Employment:
Evidence and Interventions for Drug Users in Treatment.” (2012) at page 141.
299 See Chapter 2 at 9.5, 11.4.
49
any deterrence element that criminalisation aims to achieve. This stigma leads the public to have
negative attitudes towards drug users with research showing that attitudes in Ireland remain largely
negative. This results in drug users being outcast and rejected from their community. This public
stigma filters through to every aspect of an individual’s life, it hinders drug users in attaining a
suitable level of health. Stigma in the health profession has been well documented in research. This
research shows that attitudes of health professionals are interwoven with prejudice leading to
suboptimal care. Further research in the health profession areas has shown that this stigmatising
attitude can be overcome with education. All of the above result in drug users internalising this
stigma, which manifests itself in shame, humiliation and withdrawal from the community. This
internal stigma creates a major barrier to availing of and completion of treatment.
In 2001 Portugal decriminalised personal possession of all drugs, with a main focus on reducing the
stigma of drug use. Not only did they remove the criminal label, Portugal incorporated an integrated
approach in diversion that includes education and harm reduction information. Diversion away from
the criminal justice system and towards a Drugs Dissuasion Commission has proven successful. As I
have illustrated throughout this writing, it has aided drug users in accessing treatment, improving
health and improving the overall well-being and quality of life for drug users. All achieved by
removing the power of the stigmatising criminal label. Evidence from the Commission show us that
the majority of individuals that come before it are cannabis users who have no addiction issues which
results in no sanctions. This illustrates the principle that possession does not equal addiction.
Ireland has solely relied on criminal sanctions to address drug use, but this has not decreased the
prevalence of drugs in society. Instead it has resulted in stigmatising a large portion of the population.
The latest Irish drug strategy discussed above claims to be a health led approach to drug use, but upon
examining the strategy I can see that this claim is not substantiated. Without addressing the elephant
in the room that is stigma, the goals of the strategy will not be achieved.
Portugal has illustrated that removing the stigmatising label of a criminal, barriers in accessing
treatment were removed, resulting in an increase in those attending and completing treatment
50
successfully. Education around drug use needs to be expanded further than contained in the Irish
Drug Strategy, confining education to school and youth services excludes a large cohort of the
population that are outside of these services, often the ones most vulnerable. Further to this my
research has shown the impact that stigmatising attitudes can have on accessing health services for a
person who uses drugs, often leading to a delay in seeking help. Education in this area has been
proven to be successful in combating the stigma and changing the attitudes of health professionals.
The Irish strategy aims to engage the family and community to promote societal change. This cannot
be achieved without addressing the attitudes and perceptions of drug users in our society. If negative
and stigmatising attitudes remain, families and communities will not engage.
The recent development of extending the Adult Caution Scheme to drug users does not resolve the
issue. It will result in those most vulnerable still being excessively criminalised. The mandatory
referral system for a first offence is draconian, as Portugal has shown us that not all possession equals
addiction. Limiting a health diversion to a 3-strike rule has no logical basis in my opinion. This
system utilises diversion to health services only to then redivert people through the criminal justice
system. This effectively is a health approach relying on the criminal justice system for enforcement.
Decriminalisation of drugs is the first step not the last, but it aids in destigmatising drug use.
removing the power of the criminal label will send a clear message to society that drug users are not
criminals. Social change to this will be slow but before delving into this, the first step is to remove the
legitimate stigmatising label of a criminal label, prohibition has not worked, the war on drugs has
failed.
As Albert Einstein once said, the definition of insanity is doing the same thing over and over again
and expecting different results.
51
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