Don't look the other way

You've probably heard of the "Cambridge Two" – the manager and director of the Bus Project for the Homeless in Cambridge. They first hit the headlines in 1999 following their convictions for breaches of section 8 of the Misuse of Drugs Act: they were found guilty of permitting the premises to be used for supplying class-A controlled drugs. In 2001 the Court of Appeal considered their case and, after a public outcry in relation to their case, a number of changes have been made to the law.

The government's decision to reclassify cannabis from a class-B to a class-C drug has also caused considerable excitement. The new rules are due to be in place by July 2003.

So, how is the legal position for those involved in managing and staffing rented housing different now?

Section 8 of the Misuse of Drugs Act imposes a number of obligations on housing management and staff when carrying out their work: these include preventing activities such as drug dealing and the illegal use of controlled drugs. This is, of course, no easy task for housing support workers who are running and managing projects providing accommodation for vulnerable people.

The act was extended in February 2002: the changes included the expansion of the definition of controlled drugs. It now includes drugs such as common tranquillisers.

In addition, the offence of knowingly permitting or suffering "the smoking of cannabis, cannabis resin or prepared opium" is to be replaced by that of knowingly permitting or suffering the "administering or [use of] controlled drugs which are unlawfully in any person's possession at or immediately before the time when it is administered or used". Knowingly to permit someone to administer tranquillisers may, therefore, be a criminal offence.

With regard to the change in the law on cannabis, the government has emphasised that it is not being decriminalised; "social supply" will still be an offence, but will incur a lesser punishment than commercial supply.

The difficult position for providers of rented housing and their employees has not been overlooked. In March 2002 the Office of the Deputy Prime Minister issued the practice guide Tackling Drug Use in Rented Housing.

The guide stresses how important it is to "act within the law and spirit of the law, applying caution and consulting with local police where appropriate". In order to comply with this, the ODPM advises that, where a breach of the act is likely, providers should set up a paper trail of events, give written notice to tenants, set up policies for the procedure and involvement of the police, review the policies regularly and train staff at all levels who are "concerned in the management of the premises".

Unfortunately, it is unclear from the guidance what is meant by "concerned in the management of the premises". Case law seems to suggest that this will apply not only to staff in executive roles but also to workers involved in practical day-to-day tasks.

Arguably, the perceived softening of drug offences widens the scope for prosecution of those involved in the management of premises. The position seems to be that whereas a tenant using cannabis (or indeed non-prescribed tranquillisers) is unlikely to face prosecution, a manager turning a blind eye may still find themselves facing a prison sentence.

Arguments of being unaware of cannabis use – beyond merely closing one's eyes to the obvious – may be harder to prove in a hostel or hospice where the level of contact is far greater. A patient with multiple sclerosis will be able to alleviate their symptoms with cannabis but the hospice manager will be risking a criminal record. If there is "only" cannabis use on the premises, the police may be unwilling to pursue the management team, but it continues to represent a risk.

The potential implications for service providers and their employees are significant: there remains a risk of prosecution and even imprisonment for hostel staff if they turn a blind eye to the use of controlled drugs.

To protect themselves and their employees, providers should ensure that they have a detailed policy and procedure in place relating to drug dealing and the use of controlled drugs on their premises. The policy should cover reporting requirements, record-keeping and also make clear that a failure to follow the policy could result not only in disciplinary action but possible criminal proceedings.

Staff must fully understand their legal obligations and their obligations under the policy: this can be achieved by ensuring that all staff receive regular training.

Get the guidance from www.drugs.gov.uk