No Smoke Without Fire?

When deciding what to write in my blog posts, I try to think of subjects that are topical and likely to provide the most benefit or food for thought. Undoubtedly, over the last 12 months or so, a key area that I get asked for advice in relates to people smoking cannabis within their homes or gardens.

Dealing with this problem should be simple, right? Cannabis is a Class B illegal substance, by virtue of the Misuse of Drugs Act 1971. It can also be said to be anti-social behaviour (ASB) where the behaviour is causing or likely to cause a nuisance or annoyance to others (when using the housing related definition of ASB, as per Part 1 of the ASB, Crime and Policing Act 2014). This definition should be relatively easy to meet where there are residents complaining of the smell or associated litter etc. Further, if the person concerned is living in or visiting a social housing property, the relevant tenancy agreement is likely to have conditions prohibiting acts of a criminal or anti-social nature. Surely, therefore, the answer in these instances is to utilise the sanctions that become available where tenancy agreements have been breached?

Sadly, not quite so simple. We live in a world where resources are exceedingly stretched. Whether a community safety professional or a lay resident, we appreciate that the amount of police officers have been reduced significantly during periods of austerity. This results in police forces having to make difficult decisions and prioritise those crimes that are most harmful. What this means is that, in reality, whilst cannabis possession is illegal the resulting action from the police is likely to be minimal. It is very unlikely that someone is going to be prosecuted for smoking cannabis.

In addition, as smoking cannabis becomes more widespread and accepted, the perception of its seriousness as a criminal act changes. Indeed, we know there is debate around legalising the use of cannabis, as well as previous history of decreasing its category status. I have also heard stories of housing officers raising issue with offending tenants, who have been genuinely astonished that smoking cannabis in their house or garden is illegal and/or a breach of tenancy.

So we know that smoking cannabis is a crime but can also be classed as ASB and a breach of tenancy. Regardless of this, I still hear non-policing partners stating, “it’s a police issue”, when referring to cannabis smoking. Of course, a criminal offence is something that the police should be notified of, but if we are to truly resolve the issue it is cannot solely be a police issue. To do so is non-sensical, particularly where we know that the outcome is unlikely to be one that brings long-term resolution. We should make police know of the issue but we shouldn’t be passing it on with the objective of extinguishing any responsibility on ourselves.

So, if we recognise that non-policing professionals have a part to play in dealing with cannabis smoking where does that leave us? We have had it drummed into us for many years that proportionality is key when it comes to deciding action to take in ASB matters. If you attend any of my training sessions, it is likely to be the most used word throughout; the action that we decide to take has to be proportionate to the severity of the behaviour exhibited. The age old conundrum is therefore this: how can it possibly be proportionate to take tenancy action (if social housing related) if the police are appearing to be unresponsive to the criminal act?

Sure, we can issue tenancy warning letters but how helpful are these if we don’t have a sanction that sits behind them? If we know that we are unlikely to be able to serve notice of seeking possession and commence legal proceedings, are we simply issuing letters as empty warnings?

It would be unfair of me to present these challenges (which you are probably already well aware of), and then leave you without some possible solutions. So, what can we do?

Firstly, I believe that cannabis smoking is a prime example of where we need to adopt a harm centred approach to ASB. A buzz phrase over recent months, it simply means making sure that we consider the behaviour itself and the impact that it is having. Only then can we truly understand the seriousness of the issue and the risk/harm to the victim/s.

This type of approach is key in cannabis smoking cases; there is not going to be a one size fits all answer to how you deal with it. Compare the following statements:

1) A tenant is vaping cannabis within their property. There is no damage being caused and neighbours are not aware that it is happening. It has only been discovered due to the housing officer noticing the smell when conducting a routine tenancy visit.

2) A tenant is smoking cannabis inside their property and in the rear garden. The neighbour has complained that the smoke is getting through the air vents and into their home. They have COPD, a lung condition, that is being exasperated by the smoke, something they have medical evidence to prove.

Whilst both examples consist of the same behaviour type at their core, they are very different in terms of impact and harm. It terms of what is proportionate in relation to each, the action taken is likely to be different.

I would, therefore, encourage organisations not to have a black and white stance as to whether they deal with cannabis smoking as ASB and/or under the terms of the tenancy, rather to ensure that staff are trained to spot risk, harm and use their professional judgement to decide which cases need intervention.

Managing expectations is also very important in these cases. Where the risk and harm has been weighed up, and is considered low, it may be that the message to the resident is one that could frustrate and/or disappoint. It is really important that the rationale for the decision is clearly communicated, in a manner that the resident can understand. In some cases, it may be beneficial to make the resident aware of their rights under the community trigger/ASB case review process. This gives the resident the chance to have their case reviewed, where it meets the threshold, but may also bring a secondary benefit for the housing provider, in that it instigates a partnership review; bringing agencies to the table that perhaps have been resistant when asked voluntarily, as well as allowing for all possible solutions to be discussed.

Where action is deemed proportionate, it is worth considering the full toolkit when deciding what course of action to take. Things like mediation should not be dismissed. The person smoking the cannabis may not realise the impact that their behaviour is having on others, and maybe willing to adapt the behaviour when hearing other viewpoints. Some local authorities have also seen considerable success when using the community protection warning and notice (which I will refer to collectively as the ‘CPN’) as a way of trying to tackle cannabis smoking.  Whilst it remains the case that very few registered providers have sought delegated authority to use the CPN, some are now seeing the value the tool could bring in terms of addressing these types of issues.

In order to try and provide further support for practitioners, I have teamed up with Darren Burton, Head of Housing Advisory Services at Forbes Solicitors. We will be delivering a free to attend webinar in September 2021, hosting a roundtable discussion between key partners about the challenges when tackling cannabis smoking and some of the good practice that local areas have developed. Details of this event will be made available to my mailing list, which you can sign up to here.

We are also co-hosting a working group, looking specifically at some of the current challenges with regards the CPN, including delegated authority to registered providers, with the aim of creating some sector guidance. I will continue to update on this important work.

This blog was originally produced for the RIAMS ASB community; a free online space to share best practices and ask questions. Further details can be found here

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