Big drop in personal drug-use charges

Police prosecutions for recreational drug use appear to have halved since a pivotal law change, but police are still sending more than 60 people a month to court.

The change in policing behaviour follows the 2019 change to the Misuse of Drugs Act (Moda), which clarified police should not prosecute use if a therapeutic approach was “more beneficial to the public interest”.

This was described as effective decriminalisation for personal drug use — though not by politicians — and was hoped to swing the pendulum away from the punitive towards a more health-based approach.

This has generally happened; police use of alternative action has increased and prosecutions have dropped. In each of the years 2016-17,

2017-18 and 2018-19, an average of 1561 faced drug use/possession charges as their most serious offence.

This dropped to 1354 people in the

2019-20 year, when the law first came into effect, and then further to 823 in

2020-21, then to 666 people in

2021-22. For the 2022-23 year, this crept up again to 747 people, or about

62 people each month facing a drug use/possession charge as their most serious offence. They make up only 13 per cent of the total number of people facing a drug use/possession charge regardless of what other charges they might also face.

Police are also becoming less likely to lay charges for drug use/possession if it’s the most serious charge the person is facing. They used to make up about 17 per cent of all those who faced the charge, but this has fallen to just under 13 per cent.

Criminalisation downplays the health and social impacts of drug use.

He Ara Oranga report

There was a period from late 2021 to late 2022 when about one in five drug users was being charged while the rest were given an alternative resolution. This ratio swung towards the more punitive in 2022-23, when it was about one in four.

And the chances of being charged were much higher if the person was facing other charges that were more serious than drug use/possession: about 50-50 in the 2022-23 year, and slightly higher for Ma¯ori.

Since the Moda change came into effect in August 2019, the Herald has been tracking police behaviour towards those whose drug use/possession is their most serious offence.

This is considered a more accurate reflection of how police respond to recreational drug use, rather than looking at all drug use/possession charges.

Police have released their own reports and data on the impact of the law change, but looking at all those who face drug use/possession charges, most of whom face more serious charges at the same time. Their research shows criminal history is the main factor in whether police decide to prosecute.

There are, however, common patterns among both sets of data: police prosecutions for drug use/possession have declined markedly since the law change, both in raw numbers and in the shrinking proportion of those charged, reflecting an increasing use of alternative action.

Both sets of data also show the pendulum has swung towards the more punitive since the end of 2021.

And the vast majority of police proceedings for this offence involve cannabis or methamphetamine.

With dozens each month still ending up in court, law reform proponents would have hoped the law change would have made more difference.

Personal drug use can be done in a way that isn’t harmful, and they argue a conviction in such a scenario is a disproportionate punishment.

This is supported by the 2018 report, He Ara Oranga, into mental health and addiction.

“The criminalisation of drugs is widespread around the world, yet it has failed to decrease drug use or the harmful effects of drug use and has contributed to social issues such as gangs’ involvement in the supply of drugs, prison overcrowding, unemployment and family separations,” the report says.

“Criminalisation downplays the health and social impacts of drug use that can best be managed by providing support to people early and throughout their lives. Having a drug conviction can affect an individual’s ability to gain employment, maintain relationships and travel, and the fear of these long-term consequences creates a significant barrier to a drug user seeking support for recovery.”

It was also hoped the law change would have police sending drug users who needed help to a new health referral pathway, but that is being used in only 3 per cent of all drug use/ possession proceedings.

Those involved in the sector have been pushing for an overhaul of the Moda because it is almost 50 years old and considered unfit for purpose.

Prime Minister Christopher Luxon has said he has no plans to change the settings around drug legislation.