Drugs Act 2005 (Commencement No.5) Order 2007

Home Office circular 007 / 2007

Drugs Act 2005 (Commencement No.5) Order 2007

  • Broad subject: Crime and disorder
  • Issue date: Mon Mar 19 00:00:00 GMT 2007
  • From:
    Crime Reduction and Community Safety Group (CRCSG) - Police and Crime Standards Police and Crime Standards
  • Linked circulars:
    003 / 2006
  • Copies sent to:
    Association of Chief Police Officers (England,Wales and Northern Ireland), Chief Probation Officers, Clerks to the Police Authorities
  • Sub category: Drug offences, drug related crime
  • Implementation date: Sun Apr 01 00:00:00 BST 2007
  • For more info contact:
    Peter Grime, Drug Interventions Programme
  • Addressed to:
    Chief Officers of Police (England and Wales), Lord Chief Justice of England, Chief Crown Prosecutors, Circuit Judges (Crown Courts), District Judges (Magistrates' Courts), Chief Executives HMCS, HMCS Regional Directors, HMCS Area Directors, Clerks to the Justices, Crown Court Managers, Magistrates Court Services Inspectorate, Magistrates' Association, Circuit Administrators, Court Admininstrators

Dear colleague

1. Introduction

1.1 The purpose of this circular, (which updates HO Circular 3/2006 and Annex A) is to draw attention to the Drugs Act 2005 (Commencement No. 5) Order 2007 (S.I. 2007/ 562) in so far as it brings into force on 1st April 2007 the remaining provisions in Part 3 of the Drugs Act 2005 (Assessment of Misuse of Drugs), which relate to the follow-up assessment.

1.2 S.I. 2007/562 brings into force section 10 (follow-up assessment), section 13 (arrangements for follow-up assessment), section 14 (attendance at follow-up assessment), which relate specifically to the follow-up assessment, and sections 11 and 15 -17, to the extent not already in force, in relation to the follow-up assessment.

1.3 The provisions relating to the initial assessment, section 9 (initial assessment following testing for presence of Class A drugs) and section 12 (attendance at an initial assessment) with sections 11 and 15-17, in so far as they related to an initial assessment imposed under section 9, and sections 18-19 (relating to orders under part 3 and guidance, and Interpretation) were brought into force on 1 December 2005 by the Drugs Act 2005 (Commencement No.3) Order 2005 (S.I. 20005/3053) alongside the provisions for testing on arrest (section 7 of the Drugs Act 2005).

1.4 Following statutory notification to the Chief Officers of Police concerned, testing on arrest and the required initial assessment - which apply only in respect of adults (persons who have attained the age of 18) - are currently operating in selected police stations listed in Annex A section 1.

1.5 The follow-up assessment provisions will be implemented from 1 April 2007 in the same selected police stations where the provisions for testing on arrest and the required initial assessment are in operation.

1.6 It should be noted that while the follow-up assessment provisions extend to England and Wales, a person can only be subject to the follow-up assessment requirement if the relevant Chief Officer of Police has been notified that arrangements for conducting such assessments have been made for those (adults) who have been tested (under section 63B PACE) at the police station in which the person is detained. (This is in accordance with the notification arrangements set out in section 10(6) of the Drugs Act 2005). The provisions only apply to police stations where such notification has been given and not withdrawn.

1.7 This circular (with its Annex) summarises the main effects of the follow-up assessment provisions and implications for the courts, and gives details of where the provisions will be implemented from 1st April 2007 and where other information may be found.

1.8 The initial assessment provisions are reflected in the 2005 and 2006 editions of the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice in section 17 of Code C (testing persons for the presence of specified Class A drugs). Pending formal revision of the Codes, changes in respect of the follow-up assessment provisions will be reflected in the register of changes for the PACE Codes, managed by the Police Leadership and Powers Unit.

2. Effect of the follow-up assessment provisions

2.1 Currently, adults tested for specified Class A drugs on arrest or on charge under section 63B PACE who test positive may be required by a police officer to attend an initial assessment with a suitably qualified person (as defined in section 19 of the Drugs Act 2005) and to remain for its duration. The purpose is to establish whether the individual has a dependency on, or propensity to misuse any specified Class A drug and if thought so, whether they might benefit from further assessment, or from assistance or treatment or both, and, where appropriate, to provide advice and an explanation of the types of assistance/treatment available.

Section 10 (Follow-up assessment)

2. 2 Section 10 provides that where a police officer requires a person to attend an initial assessment and remain for its duration (under section 9) the officer must, at the same time, also require that person to attend a follow-up assessment and remain for its duration. The officer must also inform the person that this requirement will cease to have effect if he is informed at the initial assessment that he is no longer required to attend the follow-up assessment.

2.3 The follow-up assessment requirement is subject to the age and notification conditions being met. (Under the current provisions, the person must have attained the age of 18 and the statutory notification as set out in paragraph 1.6 above must be in place.)

2.4 The purpose of the follow-up assessment is to fulfil any purposes not fulfilled by the initial assessment and, if appropriate, to draw up a care-plan. This will set out the nature of the assistance or treatment (or both) which may be the most appropriate for that person, based on the assessment.

2.5 The follow-up assessment provision provides a further statutory opportunity for drug workers to engage with drug misusing offenders to discuss their drug misuse, to provide advice relating to that misuse and, if appropriate draw up a care plan. These are the first steps towards treatment and support, which will benefit the drug misuser, their families and those communities affected by drug related crime.

Section 11 (Requirements under sections 9 and 10: supplemental)

2.6 Section 11 imposes a number of obligations on police officers where they require a person to attend and remain for the duration of the initial assessment and follow-up assessment. In the case of the follow-up assessment, the police officer must also warn the person that he may be liable to prosecution if he fails without good cause to attend the follow-up assessment and remain for its duration, if so required. Confirmation of the follow-up assessment requirement (with information about the initial assessment appointment) and a repetition of the warnings about prosecution must be given in writing before the person is released from police detention. A record must also be made in the person's custody record of the information given.

2.7 If the arrangements for the initial assessment are varied by the police or the assessor, the individual must be advised and warned in writing again of the consequences of failure to attend / remain.

Section 13 (Arrangements for follow-up assessment)

2.8 Section 13 provides an obligation on the initial assessor, if he thinks that a follow-up assessment is not appropriate, to inform the person concerned that he is no longer required to attend the assessment. The requirement then ceases to have effect. Otherwise, the initial assessor must inform the person of the time and place for the follow-up assessment and warn him that he may be liable to prosecution if he fails without good cause to attend or remain for that assessment. The arrangements and warning must also be confirmed in writing before the end of the initial assessment. Written notification and repetition of the warning must also be given by the initial assessor (or another suitably qualified person), if the arrangements are changed.

Section 14 (Attendance at the follow-up assessment)

2.9 Section 14 places a duty on the person conducting the follow-up assessment to inform the police if the person concerned fails to attend at the specified time and place or attends but fails to remain for the duration of the assessment.

2.10 A person who fails to attend and remain for the duration of the follow-up assessment, without good cause, commits an offence for which they are liable on summary conviction to a sentence of imprisonment (for a term not exceeding 3 months) or to a fine not exceeding level 4 on the standard scale, or to both.

2.11 The current term of imprisonment applies in relation to offences committed before the commencement of provisions in the Criminal Justice Act 2003 relating to the alteration of penalties for summary offences. When these come into force, the sentence will become "a term of imprisonment not exceeding 51 weeks" in line with the new sentencing provisions.

Section 15 (Disclosure of information about assessments)

2.12 Under section 15, information obtained as a result of the follow-up assessment may only be disclosed without the written consent of the person concerned to those involved in the conduct of the assessment.

Section 16 (Samples submitted for further analysis)

2.13 Section 16 provides that the requirement to attend an initial or a follow-up assessment ceases if, before the assessment takes place a further analysis of the sample taken reveals that it was negative. In addition, in those circumstances, where a person has failed to attend or remain for the duration of the assessment no proceedings may be brought in respect of that failure and any ongoing proceedings will be discontinued.

Section 17 (Relationship with Bail Act 1976 etc)

2.14 As in the case of the initial assessment, the requirement to attend a follow-up assessment and remain for its duration ceases if the person is charged with the related offence and the court grants conditional bail under the Drug users: restriction on bail provisions in the Bail Act 1976 (RoB) to undergo a relevant assessment and participate in any relevant follow-up.

2.15 Section 17(2) and (3) of the Drugs Act 2005 specifically provides for a relevant assessment under the RoB provisions in the Bail Act 1976 to be treated as having been carried out for the purposes of the RoB provisions where a person attends and remains for the duration of the initial assessment and the assessor is satisfied that the initial assessment fulfilled the purposes of the RoB relevant assessment.

2.16 Section 17(4) provides for the assessor who conducted the initial assessment to disclose information relating to the initial assessment to enable the court to determine whether the person attended and remained and whether the assessment meets the requirements of RoB. However, section 17(4) does not make specific statutory provision for the assessor who conducted the follow-up assessment to disclose information relating to that assessment. Any such information may only be disclosed with the written consent of the individual.

2.17 Nevertheless, where a court is satisfied from the information before it that any assessment which fulfils the purposes of the RoB relevant assessment has been carried out, the court, if it grants bail, must under section 3(6D) of the Bail Act 1976 impose as a condition of bail that the person participate in the relevant follow-up proposed (provided the court has been notified of appropriate arrangements having been made in the relevant area). Further, if the person refuses to participate in a follow-up assessment (and the other conditions in paragraph 6B of Schedule 1 to the Bail Act are satisfied), the court may not grant bail unless it is satisfied that there is no significant risk of his committing an offence while on bail.

3. Implementation of the Follow-up Assessment

3.1 The follow-up assessment requirement will be introduced from 1st April 2007 in the police stations listed in Annex A - section 1. The implementation is subject to the issue of a statutory notification to the relevant Chief Officers of Police confirming that arrangements for conducting follow-up assessments have been made in respect of those (aged 18 and over) tested at those police stations).

3.2 The assessment provisions (both in respect of the initial and follow-up assessment) are not being implemented at this stage in any of the seven sites where testing on charge only is in operation (as listed in Annex A section 2).

4. Implications for the courts

4.1 The implementation of the follow-up assessment provisions will have implications for the courts, particularly when considering offences for failing to attend and remain, and applications for bail under the Drug users: Restriction on Bail provisions under the Bail Act 1976 in respect of persons appearing before the court who have tested positive on arrest/charge under section 63B PACE where a requirement to attend an initial and follow-up assessment has been imposed.

4.2 There will also be implications for those courts which receive defendants from the four police stations in England where drug testing on charge only is in operation, Although the required assessment provisions will not be applicable to persons who have tested positive in those police stations, they could be assessed under voluntary arrangements and defendants appearing before a court in England who are resident in England would be eligible for consideration under the RoB provisions.

4.3 The sanction for failing to attend a follow-up assessment and remain for its duration is the same as that for failing to provide a sample and for failing to attend or remain for the initial assessment. While the policy intent is to move more problem drug using offenders into appropriate treatment and support, and not to send more offenders to court, to enable the assessment requirements to have a real impact, it is important that prompt enforcement action be taken where appropriate, and that any prosecutions in that respect be dealt with appropriately by the courts.

5. Guidance and other information

5.1 The earlier detailed guidance on the implementation of drug testing on arrest, the required initial assessment and Restriction on Bail has been revised and updated. Management and operational training has also been provided to the police and Criminal Justice integrated Team (CJIT) workers and others involved in the implementation of the provisions. (The guidance is available from http://www.drugs.gov.uk/drug-interventions-programme/guidance/tough-choices)

5.2 Other information is available as follows:

Peter Grime

Drug Interventions Programme

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