Testing for drugs at the police station

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Home Office Circulars

Home Office circular 004 / 2009 This circular provides an update to information contained in Home Office circulars 003/2006 and 007/2007 (and Annexe A) and draws attention to the extension (either in whole or in part) to Wales, with effect from 1st April 2009, of the following interventions, which are part of the Drug Interventions Programme:

  • drug testing on arrest (under section 63B of the Police and Criminal Evidence Act 1984)
  • initial and follow-up assessments (under Part 3 of the Drugs Act 2005)
  • restriction on bail (for drug users) (under the Bail Act 1976 as amended by section 19 of the Criminal Justice Act 2003)

Home Office Circular 007 / 2007: Drugs Act 2005 (Commencement No.5) Order 2007 - Implementation of the Follow-Up Assessment provisions in Part 3 of the Drugs Act 2005

Home Office Circular 028/2007 This Circular Replaces Circular No 042 / 2004 : The Criminal Justice and Court Services Act 2000 (Amendment) Order 2004: The purpose of this circular (which supersedes HOC 42/2004) is to draw attention to the changes made to Schedule 6 to the Criminal Justice and Court Services Act 2000 by the Criminal Justice and Court Services Act 2000 (Amendment) Order 2007 (S.I. 2007/2171) which came into force on 1 August 2007. (There are links to relevant documents within the circular)

The Drug Interventions Programme ('DIP') is a critical part of the Government's strategy for tackling drugs. The Programme involves criminal justice and drug treatment providers working together with other services to provide a tailored solution for adults - particularly those who misuse Class A drugs - who commit crime to fund their drug misuse. Its principal focus is to reduce drug-related crime by engaging with problematic drug users and moving them into appropriate treatment and support. It aims to break the cycle of drug misuse and offending behaviour by intervening at every stage of the criminal justice system to engage offenders in drug treatment.

Many solicitors will be familiar with drug testing on charge and restriction on bail, which were the initial components of DIP. The Drugs Act 2005 ('the Act') introduced certain new measures, which are only applicable to those aged 18 or over. This guidance will focus on the new measures.

Home Office Operational Process Guidance for Implementation of Testing on Arrest, Required Assessment and Restriction on Bail JANUARY 2006 – Final

Testing for drugs at the police station

The Drugs Act 2005

Section 7 and the Amendments set out in paragraphs 1 to 4 of Schedule 1 to that Act amended the Police and Criminal Evidence Act 1984 (PACE) to provide for the introduction of testing persons for specified Class A drugs while in detention on arrest, while retaining the powers under section 63B of PACE (as inserted by section 57 of the Criminal Justice and Court Services Act 2000 and subsequently amended by section 5 of the Criminal Justice Act 2003 to test persons for specified Class A drugs (heroin, cocaine/crack) after charge.

Section 63B of PACE now provides for a sample (of urine or a non- intimate sample*) to be requested and taken from persons in police detention for the purpose of ascertaining whether they have a specified Class A drug in their body if arrested for, or charged with a trigger offence (or any offence where an inspector or above has reasonable grounds to suspect that misuse by that person of a specified Class A drug caused or contributed to the offence, and has authorised the taking of a sample.) *For the purposes of drug testing under DIP, the sample taken is oral fluid (saliva) and not urine.

The provisions as amended allow for testing in three situations; adults after charge, 14-17 year olds after charge and adults on arrest where the relevant arrest, charge and age conditions are met and where a statutory notification that arrangements are in place for the relevant group has been issued by the Secretary of State.

Part 3 of the Drugs Act 2005 introduced a new power (in section 9) for the police to require persons who have tested positive, when tested on arrest or on charge under section 63B of PACE, to attend an (initial) assessment of their drug use with a suitably qualified person 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.)

The 2005 edition of the PACE Codes of Practice, which came into effect on 1st January 2006, included revisions to section 17 of Code C (latest version 26 October 2008) (testing persons for the presence of specified Class A drugs) to take account of the introduction of testing on arrest and the police powers to require an initial assessment.

It should be noted that while the provisions for drug testing on arrest and RA extend to England and Wales, these new measures (as well as any further implementation of testing on charge) are available only in named police stations/ police areas where the relevant Chief Officers of Police have been so notified by the Secretary of State (in accordance with the notification arrangements set out in sections 7(7) and section 9(5) of the Drugs Act 2005). They do not apply to any police stations/police areas unless such notification has been given and not withdrawn.

Code of Practice: Testing persons for the presence of specified Class A drugs

Codes of practice – Code C Detention, treatment and questioning of persons by police officers

Testing persons for the presence of specified Class A drugs

Code C17: This section of Code C applies only in selected police stations in police areas where the provisions for drug testing under section 63B of PACE (as amended by section 5 of the Criminal Justice Act 2003 and section 7 of the Drugs Act 2005) are in force and in respect of which the Secretary of State has given a notification to the relevant chief officer of police that arrangements for the taking of samples have been made. Such a notification will cover either a police area as a whole or particular stations within a police area. The notification indicates whether the testing applies to those arrested or charged or under the age of 18 as the case may be and testing can only take place in respect of the persons so indicated in the notification. Testing cannot be carried out unless the relevant notification has been given and has not been withdrawn. See Note 17F(The power to take samples is subject to notification by the Secretary of State)

Code C17.5 The age condition is met where:

(a) in the case of a detainee who has been arrested but not charged as in paragraph 17.3, they are aged 18 or over;
(b) in the case of a detainee who has been charged as in paragraph 17.4, they are aged 14 or over.

Legislative Background to Drug testing provisions in Police and Criminal Evidence Act 1984

The powers for drug testing under section 63B of PACE, as introduced by section 57 of the Criminal Justice and Court Services Act 2000 allowed the police, in certain police areas where the provisions had been brought into force (22 police areas), to test adult persons for specified Class A drugs when charged with either a “trigger” offence or any offence if a police officer of inspector rank or above has reasonable grounds to suspect that misuse of a specified Class A drug caused or contributed to the offence and has authorised the test. (This now becomes the “charge condition” under amendments made by section 7 of the Drugs Act 2005.)

Section 5 of the Criminal Justice Act 2003 extended the powers with effect from 1st August 2004 to enable the police to test persons aged 14 and over after charge (subject to statutory notification that appropriate arrangements were in place either in the police area as a whole, or in particular police stations, for the testing of under eighteens) . The provisions are currently being piloted for 14 -17 year olds in selected police stations in 7 police areas, with the pilots scheduled to run until 31 March 2006.

The Drugs Act 2005 now further amends s63B of PACE to introduce testing on arrest for adults. To facilitate the implementation of these three distinct powers, section 7 was drafted in a way which relies on the earlier provisions being commenced and which tidies up the statute book. The two earlier provisions were therefore brought fully into force by the Commencement Orders listed below, with effect from 1st December 2005, when section 7 of the Drugs Act 2005 came into force by virtue of The Drugs Act 2005 (Commencement No.3) Order 2005 (S.I. 2005/3053)

  • The Criminal Justice and Court Services Act 2000 (Commencement No 15) Order 2005 (S.I.2005/3054)
  • The Criminal Justice Act 2003 (Commencement No. 11) Order 2005 (S.I. 2005/3055)

The effect of this is that section 7 of the Drugs Act 2005 now governs all the provisions for drug testing under section 63B of PACE, namely, testing on arrest for adults, testing on charge for adults and testing on charge for the under-eighteens, as the case may be. The testing is permitted where the relevant arrest, charge and age conditions are met and where a statutory notification that arrangements are in place for the relevant group concerned has been issued by the Secretary of State.

Continuation of drug testing on charge:

The provisions for drug testing on charge in respect of adults (originally introduced on a pilot basis in 2001) have continued to apply in the police stations where this was in operation (in 22 police areas) prior to 1st December 2005 (by virtue of section 7(13) of the DA 2005 which provides for the notification condition to be treated as being satisfied for the purposes of testing adults on charge where section 63B(2) of PACE was in force immediately before section 7 of the DA 2005 came into force).

Annex C: Similarly drug testing of persons aged 14 to 17 on charge has continued to apply in the police stations (in 7 areas) where this was operating prior to 1st December 2005 by virtue of section 7(13) which provides for the notification condition under the DA 2005 to be deemed to have been met where notification has already been given under section 63B(9) of PACE and had not been withdrawn before section 7 came into force.

The relevant Commencement Orders can be found at:

Home Office circular 042 / 2004 Re the: Criminal Justice and Court Services Act 2000 (Amendment) Order 2004

Home Office circular 3 / 2006 Re: Testing for presence of (specified) Class A drugs on arrest and the expansion of the Restriction on Bail provisions.
5.1 The drug testing provisions under section 63B PACE as amended by section 7 of the Drugs Act 2005 allow for the drug testing of adults after arrest; adults after charge; and under eighteens (14-17 year olds) after charge, where the relevant arrest, charge and age conditions are met and where the relevant notification has been given by the Secretary of State in respect of the particular group concerned that appropriate arrangements have been made for the police area concerned or for particular police stations (the notification condition):.....

Trigger offences

Offences under the following provisions of the Theft Act 1968 are trigger offences:

section 1 (theft)

section 8 (robbery)

section 9 (burglary)

section 10 (aggravated burglary)

section 12 (taking motor vehicle or other conveyance without authority)

section 12A (aggravated vehicle-taking)

section 15 (obtaining property by deception)

section 22 (handling stolen goods) *

section 25 (going equipped for stealing, etc.)

Offences under the following provisions of the Misuse of Drugs Act 1971 are trigger offences if committed in respect of a specified Class A drug:

section 4 (restriction on production and supply of controlled drugs)

section 5(2) (possession of controlled drug)

section 5(3) (possession of controlled drug with intent to supply)

An offence under section 1(1) of the Criminal Attempts Act 1981 is a trigger offence, if committed in respect of an offence under any of the following provisions of the Theft Act 1968: *

section 1 (theft)

section 8 (robbery)

section 9 (burglary)

section 15 (obtaining property by deception)

section 22 (handling stolen goods)

Offences under the following provisions of the Vagrancy Act 1824 are trigger offences:*

section 3 (begging)

section 4 (persistent begging)

Offences added to the trigger offences in Schedule 6 to the Criminal Justice and Court Services Act 2000 by The Criminal Justice and Court Services Act 2000 (Amendment) Order 2004, (S.I. 2004/1892), which came into force on 27th July 2004.

Guide for prosecutors to the Drug Interventions Programme

  • CPS Drug Intervention Programme.
  • Home Office Drug interventions programmes

Drug Testing Young Offenders

NACRO Drug testing and treatment for children and young people in the youth justice system.

Home Office circular 45 / 2004 Young peoples’ drug testing pilot- Testing after charge – Section 5 Criminal Justice Act 2003.

Home Office Young Offenders To Be Drug Tested

1.Drug testing for 14 – 17 year olds will be available from 1 August in custody suites in Liverpool, Manchester, Camden, Southwark, Newham, Middlesbrough, Nottingham, Calderdale, Bradford and Kingston upon Hull. The legislation to enable drug testing for 14-17 year olds was introduced in the Criminal Justice Act 2003.
2. The drug testing pilot programme was introduced in 2001 in three areas before being extended to a further six sites in summer 2002. The police have the power to test persons in police detention aged 18 and over who have been charged with a "trigger offence" (theft, burglary, robbery and other offences under the Theft Act 1968, or drug offences such as possession and supply, if committed in respect of the specified Class A drugs). Those charged with non-trigger offences may also be tested, where a police officer of at least Inspector rank has reasonable grounds to suspect that misuse of any specified class A drug caused or contributed to the offence and authorises the taking of a sample.
3. An "Evaluation of Drug Testing in the Criminal Justice System" was published today in the Home Office website and can be found at http://www.homeoffice.gov.uk/rds/horspubs1.html (new window)
4. The ‘Evaluation of drug testing in the criminal justice system in nine pilot areas’ by Matrix MHA and Nacro, Home Office Findings 180 was published on March 28 and is available on the Home Office website. This is the second evaluation findings paper, the first is Home Office Research Finding 176 and was published on 24 May 2002.
5. From 27 July, the list of trigger offences set out in Schedule 6 to the Criminal Justice and Court Services Act 2000 is being extended to include, handling stolen goods (under section 22 of the Theft Act 1968); "attempted offences" (under section 1(1) of the Criminal Attempts Act 1981, if committed in respect of the offences of theft, robbery, burglary, obtaining property by deception and handling stolen goods; and offences in relation to begging under sections 3 and 4 of the Vagrancy Act 1824).
6. The Criminal Justice Interventions Programme (CJIP) targets offenders committing crimes to fund their drug habit. They are identified through drug testing when charged by the police, referred to drug referral workers while in police custody and then guided into treatment. Once in treatment, whether that is in the community or in prison, a caseworker will manage their progress and provide help and advice when itcomes to finding a job or a home to help them stay drug and crime-free. CJIP is supported by £151 million in 2004/05, part of a £447 million package over three years.

Cozart Test

Cozart This test provides only a preliminary analytical test result. A more specific alternative chemical method must be used in order to obtain a confirmed analytical result. Gas Chromatography/Mass Spectrometry (GC-MS) is the preferred confirmatory method. Clinical consideration and professional judgement should be applied to any drug of abuse test result.

Cozart Home Office approval for Cocaine Solids On-Site Test

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