Are Random Police Drug Swabs Legal?

Know your rights.

by James Greig

5 January 2022

police drugs drug swabbing
Twitter/the MET Police

The London Metropolitan police faced widespread criticism this week after posting a video to its Twitter account showing officers carrying out drug swabs on members of the public, as well as interviewing people and performing body searches. 

Taskforce Officers were out recently doing drug swabs in Shoreditch as part of a wider operation to ensure the night time economy is a safe place for all,” read the accompanying tweet. 

The Met only provoked more anger when it responded to backlash with the retroactive claim that the operation was launched to protect women’s safety – somewhat ironically, the sole person to be arrested was a woman.

Critics also raised concerns about the accuracy of such tests – in London, it’s easy to touch a note which has traces of cocaine on it – and questioned whether the action was legal.

While operations like this one are nothing new – the technology has been used by law enforcement before – it is significant that it is being deployed at a time when the Tories are ramping up drug criminalisation, and that the Met is going out of its way to advertise it.  

So what do you do if you are approached by the police and asked to take a test? Is drug swabbing even legal? 

What are your rights?

According to Niamh Eastwood, executive director of Release, the UK’s centre of expertise on drugs and drug laws: “There is no legal basis for random swabs.

“The police can only stop and search someone for controlled drugs if they have reasonable suspicion that they are in possession of drugs.” What’s more, a positive result is not proof of an offence unless someone is actually caught with drugs on them. 

Griff Ferris, legal and policy officer at Fair Trials, a global criminal justice watchdog, echoes this, explaining that “police cannot forcibly stop and swab people’s hands on the street for drug residue unless they have consented to it.”

In this particular instance, however, the people who were swabbed technically did consent to it, meaning that the police were operating within the law. The Met carried out its testing at the entrances to two nightclubs in Shoreditch, both of which agreed to take part in the operation. Because people were free to refuse being swabbed, the testing was classed as voluntary, but doing so meant they could be turned away from the venue. 

According to the Met’s statement, if a person refused to be swabbed it did not mean that they would be searched under Section 23 of the misuse of drugs act, and if anyone did prove a positive swab, so long as “no further grounds for search were identified” then they were allowed to continue on with their night. But what these “further grounds” that led to people being searched actually consisted of has been left unspecified. 

The one woman who was arrested was observed “disposing of a suspicious package” after a friend had been swabbed, which presumably wouldn’t have happened had the operation not been in place.

Of course, the problem is that many people are unaware of their rights and are liable to be intimidated when confronted by the police, who they assume are acting with authority even when they’re not.

“You have the right to refuse and it’s important the police make that clear,” explains Griff. “But the police do sometimes coerce people into agreeing to things they have the right to refuse, whether a consensual drug swab, questioning, or a search, with people often complying out of trust and or fear.

“Police only have the legal power to forcibly drug test you, via a blood test or other method, if you are driving or you are under arrest at a police station and you are over 18.”

A failed drug policy. 

According to Eastwood, the operation appears to be less about public safety and more about the Met publicly demonstrating its unflagging commitment to the failed policy of drug prohibition. 

“One of the aims is to deter drug use, but like our whole criminal justice approach to drugs, it is an utter failure, causing more harm and failing in its stated aim to reduce consumption,” she explains.

“This is backed up by the Home Office’s own research which found that, despite the government spending £1.6bn a year on drug law enforcement, this has had little impact on the availability of drugs. They describe the market as ‘resilient’. 

“Even worse, this kind of approach can lead to increased health harms whereby someone in possession of drugs may consume everything they have on them – which they  have planned to take over many hours – in order to avoid detection, thus increasing the risk of overdose.” 

The Tories are cracking down. 

Unfortunately, it doesn’t seem like the UK’s drug policy is going to improve any time soon. While there have been some positive developments recently – Sadiq Khan, the mayor of London, is reportedly planning to wind down the criminalisation of cannabis, along with other class B drugs – this comes against the backdrop of a wider shift towards harsher criminalisation.

Last month, the Conservatives announced a huge crackdown on people who use drugs recreationally,  threatening to strip them of their passports and driving licenses under punitive new measures. Labour leader Keir Starmer isn’t much better, having voiced his opposition to decriminalisation

It’s important to advocate for a more just approach to drug policy at a societal level, particularly given how unevenly these laws are enforced: Black people, for instance, are nine times more likely to be stopped and searched for drugs than white people, despite using drugs at a significantly lower rate. 

But in the meantime, given that the Tories punitive approach to drug-taking looks set to continue – and potentially worsenunderstanding what the police are legally allowed to do is worthwhile. 

If you’re on a night out and an officer asks to swab you, remember that you have the right to say no.

James Greig is a writer based in London.

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