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Inaccurate interpretation of drug testing in prisons leading to false findings of guilt

View profile for Mike Pemberton
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Many people who have family or friends in prison are likely to have heard their loved ones speak about facing adjudication charges or ‘nickings’ for breaching prison rules.

These charges are a way of maintaining good order and discipline in the prison system.

That being said, we are seeing an increasing number of cases where prisoners are being charged for bad choices that they made before they came to prison as opposed to their behaviour since. This is specifically in relation to Cannabis use.

This is fundamentally against prison policy as your should not be charged for drug use stemming back to your time in the community. For this reason, the prison service provides for minimum waiting periods before testing prisoners after entering prison. For Cannabis this waiting period is 30 days.

This therefore allows for Governors/Judges to conclude that any positive test for Cannabis, after this waiting period, must mean that the prisoner in question has consumed Cannabis since coming into prison.

However, we have now received an expert report from a renowned Forensic Scientist that does provide for scenarios where positive test results for Cannabis use, after the prison’s minimum waiting period, does not necessarily mean that Cannabis has been consumed in prison.

This appears to apply to people who were heavy users of Cannabis before entering custody. Indeed, the common drug testing method used in prisons tests for the presence of ‘carboxy-TH’ and if the same is present above 15ng/ml then it is deemed to be a positive confirmation of Cannabis use.

Our expert states that in his professional opinion, this test can only conclude that Cannabis was used and not when or how much. He therefore puts forward that if a lot of Cannabis was consumed prior to coming to prison, it can be reasonably expected that small amounts of ‘carboxy-TH’ may still be detected in a person’s urine.

We have used this defence successfully in a recent case as a result of this report which saw our client being found not guilty of Cannabis use following a ‘positive’ drug test taken 33 days after him coming into prison.

By Sacha Van de Perre, Trainee Solicitor in the Civil Liberties Unit.