Cannabis before planting to the court?!
New penalty provisions are created or existing provisions expanded with little resistance. Are traditional criteria for criminalisation being sent into oblivion, or is society so altered that the criteria no longer have a realistic base?
Criminal Law may only be invoked when there is no other adequate opportunity to solve a problematic situation. This is how the ultimum remedium nature of Criminal Law is defined. To make this abstract principle applicable, it should be filled with testable terms, also referred to as the criteria for criminalisation. Using these criteria, the debate can be held on the necessity and possibility of the criminalisation of certain behaviour. However, for a meaningful debate this will sometimes fail. New Penalty provisions are created or existing provisions expanded without much resistance. Are the traditional criteria for criminalisation sent into oblivion, or has society become so altered that the criteria no longer provide realistic assumptions? And what is the consequence for criminal law as an ultimum remedium?
In the context of this criminal expansion, a bill is pending concerning a new Article 11a in the Opium Law. This proposed new article states that the preparation or facilitation of illegal hemp cultivation is prosecutable. This blog will analyse the bill. The central questions being; is the criminalisation of the preparation or facilitation of illegal hemp cultivation desirable and can the bill stand the test of the ultimum remedium principle? Will awkward situations be prevented with this bill – like the recent situation in the TV show ‘Stop! Politie’, where a motorist with his car packed with lighting equipment, pots, potting soil and cannabis seeds (whose unlikely story was that he was growing Bonsai trees) could not be punished?
In 2005 the Minister of Justice presented two research reports to the Tweede Kamer (Dutch House of Representatives) about the cannabis industry (J. Snippe et al 2004 and Venlo and ES&E 2002). At the time of these reports the government, among other things, was asked to make concrete proposals in a bill to achieve a ban on cultivation shops. The Minister announced plans for the criminalisation of the sale, supply, provision, transport, manufacturing and possession of substances, items and information intended for the production of cannabis (van Russen Groen 2013). And so it has come about. The Ministers want this bill to provide ‘a separate offence (…) under which acts concerning the preparation or promotion of illegal hemp cultivation and export of large quantities are considered a criminal offence’ (Kamerstukken II 2010/11, 32 842, no. 3 p. 3).
The idea underlying this is that the current criminal instruments are failing in the fight against hemp cultivation. The purpose of the bill is therefore to impede and thereby reduce illegal hemp cultivation. The proposed approach ensures that opportunities are broadened to prosecute others besides the growers. Through the introduction of the new criminalisation, the number of persons engaged in facilitating professional hemp cultivation will be reduced. (Vgl. Kamerstukken II 2010/11, 32 842, no. 3, p.3, 6 and Kamerstukken II 2011/12, 32 842, no. 6, p.9-10).
Desirability of criminalisation
This criminalisation makes it easier to hold persons and enterprises engaged in the facilitation of (professional) hemp cultivation criminally liable. Possibilities for this already existed on the basis of participation and attempted hemp cultivation as well as participation in a criminal organisation, but the criminal liability in the preliminary phase of (professional) hemp cultivation was further extended with the proposed Article 11a Opium Law (Borgers and Poecke 2012).
The new criminal provision contains a blame variant: the ‘having serious reasons for a presumption’ criterion. Through this the scope of the criminalisation is broadened and is difficult todefine. Are employees of garden centres or sellers of agricultural and horticultural products also exposed to criminal liability if, for example, they sell compost or lighting equipment. In this way an obligation of an yet unclear scope would come to rest on them. (van Russen Groen 2013).
This bill is fully in line with the changes that the prevailing ideology has undergone in recent decades since it focuses on the prevention of illegal hemp cultivation. ‘Society has changed so that the government, at the request of and in line with the demand of the citizens, needs more powers to ensure the security effectively’ (Van der Woude and van Sliedregt, 2007). This results in a criminal law that is on the basis of risk analyses strongly focused on prevention. (Feely & Simon, 1994).
Every law student is confronted with the idea that criminal law should be considered as an ultimum remedium; only if no other means are appropriate should the choice be made to apply criminal law. The underlying idea inherent to the application of criminal law of subsidiarity goes to that effect prior to criminal justice (Crijns 2012). The ultimum remedium principle has been under pressure in recent years. In today’s risk society, more often the criminal toolbox is used without first carefully considering whether any other means would be sufficient (van der Woude en van Sliedregt 2007, Crijns 2012). Also in the present case, the debate over the necessity and possibility of criminalisation is not, at least not sufficiently, being conducted. At this time, also advocated by the Minister of Justice, the licensing of ‘growshops’ is used by various municipalities in the Netherlands. Once this bill comes into law, municipalities would no longer issue permits to growshops. The possibilities offered by this licensing system to prevent illegal hemp cultivation have not, at least not sufficiently, been considered.
The criminalisation of the preparation and facilitation of illegal hemp cultivation is a step in the right direction towards preventing illegal hemp cultivation. However, I believe that the new criminal provision will not be sufficiently workable and effective because its scope is too large and is difficult to delineate.
In addition, it is questionable whether the use of criminal law in this case is correct. A licensing system would be a more effective means of restricting the proliferation in the growshop sector than the criminalisation of preparatory acts of hemp cultivation. In this way, with the BIBOB Law in hand (The BIBOB Law is a (preventive) administrative instrument) if there is a serious danger that, for instance, a license is abused, the competent administrative authority may refuse the application or revoke the license issued). In this way, the sector can be better monitored (van Russen Groen 2013).
Although the ultimum remedium thought in the current debate on criminalisation and enforcement is not a decisive argument, it is still a useful main starting point on issues of law enforcement. It reminds us that the application of criminal law must not be taken lightly. At times when the criminal toolbox is eagerly taken to hand , this is certainly not a superfluous point of view. (Crijns 2012)
It looks like we can still have a bag of earth and a light bulb at the same time, but perhaps we should be more careful in the future.