I have been a criminal defence lawyer for almost 30 years. I have acted for children and young people throughout that time, including in cases of drug trafficking, armed robbery and even murder.
In England, we criminalise and incarcerate young people at a higher rate than anywhere else in Western Europe. We also have one of the lowest ages of criminal responsibility in the world. Children as young as 10 can be arrested, prosecuted and even given custodial sentences, which may extend well into their adult lives.
For the first 20 years of my career, I was a busy junior barrister, often finishing one trial in the morning and starting the next one in the afternoon. Like most in the criminal justice system, I had a form of professional tunnel vision, entirely engrossed in what I had to do each day, with no consideration of why things are the way they are. Surely, someone must have thought this through? There must be a good reason why we in England are so addicted to prosecution as a remedy for all the ills of our society.
In 2013, I took Silk and became a QC, known formally as One of Her Majesty’s Counsel, Learned in the Law. My practice changed beyond recognition from my junior years. I finally had time to think between cases. I was asked to write for newspapers and magazines on criminal justice issues. Television and radio interviews followed and eventually, in 2020, I made a series for BBC1 – “Crime – Are we Tough Enough?” – and published my first book, “Justice on Trial – Radical Solutions for a System at Breaking Point”.
In the course of the past decade I have had many lightbulb moments, looking back on cases from over the years and questioning what on earth the point of them was. I distilled my doubts down to one basic issue or, rather, the one missing ingredient from criminal justice policy – does the way we use arrest, prosecution and imprisonment in England actually reduce the amount of crime and suffering in our society?
I soon realised that politicians of all parties, responsible for developing justice policy in recent decades, the criminal law and sentencing levels, have no interest in that fundamental question at all. Policy is driven by a toxic combination of doing things the way we have always done them and knee jerk responses to high profile cases in the headlines. In no area of policy is this blinkered approach more evident than for drug crime and youth justice, where the damage comes on three main fronts.
Drug prohibition, in its current draconian form, began with the Misuse of Drugs Act 1971, which introduced severe criminal sanctions for most forms of drug possession and supply, including for heroin, which had previously been used by a tiny number of people, mostly on prescription. A decade later, there were hundreds of thousands of heroin addicts, supplied entirely by the black market, where violent and murderous competition was rife. The deadly crack epidemic of the 80s followed and, to this day, Organised Crime Groups operate with ruthless efficiency up and down the country.
Make no mistake, drugs are not responsible for all this human misery. The law is.
The first major impact on the young comes in the form of exploitation by the violent criminals who control the drug trade. We have seen massive sentence inflation over recent years, to the point where even mid-level drug dealers can be sent to prison for a decade or longer. At the very top end, stratospheric sentences of 30 years and more have become routine in our courts.
As a direct result of the consequences for adults, arrested and prosecuted for drug offences, dealers and gangs have changed their tactics for the delivery of drugs around our cities and across the country. Rather than hardened adult criminals, acting as couriers for drugs, we have seen an explosion in use of children to take drugs around the country, generally on trains and other forms of public transport. This has become known as “County Lines”, referring to the supply chains between major cities, small towns and rural areas, where dealers have found lucrative markets for expansion.
The truth is that County Lines is nothing less than child exploitation on a massive scale. Some of the most vulnerable children in our society are preyed upon, groomed, taken out of school and subjected to violence if they ever seek to leave the clutches of the gangs they serve.
The second impact of drug prohibition on young people is the criminalisation for life of tens of thousands of them, purely for low level drug possession and supply offences. Although some may be treated as victims of exploitation these days, many more are arrested with drugs, either for personal use or small-scale supply, and end up trapped in the revolving doors of criminal justice, throughout their youth and into adult life. Education goes out of the window, further grooming takes place in prison and any chance of engagement in legitimate employment is extinguished by the metaphorical tattoo of a criminal record.
The final major impact of drug policy is perhaps the most tragic of all. I wrote in Justice on Trial of the wasteful and completely avoidable death of 15 year-old Martha Fernback from a massive overdose of MDMA, known to most of us as “ecstasy”.
In lower doses, MDMA is one of the safest drugs, at least in terms of the risk of sudden death. Martha died, not because she took ecstasy, but because she and her friends had no way of knowing that the powder they had bought was 92% pure MDMA. The dose Martha took contained enough of the active ingredient to kill ten grown men. She passed out shortly after taking it and never woke up. If ecstasy were available through a legal and licensed supply chain, as I believe it should be, there is no way that Martha would have taken the amount of pure drug that she did. She, and thousands of other child victims of overdose, would be alive and well.
I interviewed Martha’s mother, Ann-Marie, during my research for Justice on Trial. She is now a prominent campaigner for drug law reform, making the argument that children will always experiment with drugs and that our only priority as a society should be to protect them from harm when they do so. I agree.
The time has come to stop the madness of the failed and unwinnable War on Drugs and start to treat drugs, especially as they impact on the lives of our young people, as a public health emergency. We need to remove drug use and supply from the criminal justice system altogether by legalising and controlling it, which would in turn free children from exploitation, end the cycle of premature criminalisation and save countless young lives, lost to overdose and contamination.
In the end, drug and youth policy should be made, not in a vain attempt to appear tough on crime, but based on what actually works to reduce crime and death from drugs and, most of all, to protect our young people; not to punish and even kill them.
