If you are subject to Service Law then you will have been subject to a compulsory drugs test. If you are unlucky then you may find that you have failed the CDT and tested positive for a controlled drug.
This article identifies some of the factors that you need to consider if that happens to you. If you are under investigation by service police, you may also be required to undergo a drugs test. This article does not cover that situation and you should immediately take legal advice from a specialist solicitor if you find yourself in that situation.
The service view of drug taking
Drug taking is considered to be incompatible with the demands of Service life.
JSP 835 states that drug misuse within the Armed Forces is totally unacceptable because it threatens the efficiency and discipline of the Services, where individual responsibility and teamwork are essential to operate highly technical, expensive and potentially lethal equipment.
Furthermore, taking drugs impairs judgement, can be addictive and may well place the misuser and others at risk in circumstances requiring high levels of skill and expertise.
It is Service policy that those who fail CDT will have their service terminated in all but the most exceptional cases.
What does failing a CDT mean for me?
The starting point is that your career is over if you test positive. That means you will find yourself unemployed, potentially homeless and if you have to move home, your children may have to leave their schools. If you did not deliberately or recklessly take the drugs that led to you failing the CDT, then you need to take action immediately if you want to try and save your career.
Doesn’t everyone say they didn’t do it ‘deliberately’?
It’s fair to say that when the consequences are so serious, there will be failures of integrity; people get desperate and lie.
That doesn’t mean that if you genuinely did not take drugs and were not reckless that you shouldn’t do everything possible to save your career. However, you have to be realistic, your chain of command will be sceptical. JSP 835 directs them to be sceptical.
If you want to stand a chance of success you need to take the initiative from the moment you learn the result.
What do you mean by reckless?
You are expected to look after yourself and not put yourself in a situation which could lead to a positive test. If you get so drunk you don’t know what you’re doing and cannot recognise the symptoms of drug taking or you take medication you have not been prescribed without checking with the MO or accept a drink from a stranger, then you have put yourself at risk; you have been reckless.
If you think you have been spiked you have a duty to report it immediately, not just if you fail a CDT. If you were too drunk to realise you were spiked, then that is also reckless. Recklessness is not strong mitigation, and you are highly unlikely to be retained.
What is a controlled drug?
You can find a full list of controlled drugs here. In short, controlled drugs are drugs that are not freely available over the counter e.g. paracetamol. Most are legitimate medicines which you can posses and take, but only if they have been prescribed to you. Others are illegal drugs such as heroin and cocaine.
I’ve failed a CDT, what can I do?
It is possible to challenge the result or to establish to the satisfaction of your chain of command that you are not responsible for having controlled drugs in your system.
However, it is difficult and requires expert assistance to do well. Here are some things to bear in mind:
• Seek legal advice immediately from a specialist. Everything you say to them is confidential and cannot be repeated. For obvious reasons, we have only set out the very basics here. Reading this does not mean you are now sufficiently armed to challenge it alone.
• There will usually be a short delay between you being notified of the result and being interviewed by the CO or an officer appointed by the CO.
• When you are interviewed, your credibility is on the line. Almost all CDT cases come down whether or not the chain of command feels confident they have been told the truth.
• If you do not admit the failure, you have the option to put in a written representation. If you haven’t done it already, you are entitled to seek legal advice and will have 48 hours to prepare. This can be extended, but only with good reason.
• If you choose to submit a statement it needs to be highly detailed so the service police can check your account, where possible it needs to have independent evidence attached.
• There are scientific experts who can help you challenge the test result.
• Your sample was split in two. You will have been given the results of the A sample test. You can request the B sample is tested but you have to pay for this.
• In certain limited circumstances the CO can order a hair strand test, if not you may get your own done at your expense.
How will the decision be made?
Your CO will make the decision as to whether you have satisfactorily explained how you failed the test. They will decide on the balance of probabilities whether you were not responsible for the drugs being in your body or if the test was incorrect.
What that means is they have to think it is more likely than not that you are telling the truth to recommend you are retained in service.
Is it true that young soldiers get a second chance?
If you are under 25, below the rank/rate of leading hand or corporal, your prospects of reforming are good, and you are considered promising then exceptionally you may be retained if this is your first offence. However, such an outcome is rare.
Is any funding available to help me fight this?
No, sadly not. The MoD will not pay for a lawyer or for experts to help you argue your case. If you want to fight for your career you need to fund it yourself.
Will I be disciplined for this?
If you simply fail a CDT then no, you will not be punished, you will continue to work if it is felt safe for you to do so up until you are discharged, services no longer required.
However, if evidence emerges in the investigation of any criminal offences or other breaches of the values and standards then those will be investigated.
For that reason it is very important to seek legal advice to ensure you protect yourself.
Three Top Tips
1) ADVICE: You need to seek legal advice from a specialist military lawyer immediately.
2) CREDIBILITY: Your credibility is key. Don’t say something in panic that you cannot back up with evidence. You can ask for time before making a statement.
3) DETAIL: You need to give plenty of detail about what happened and when. Vague accounts are likely to be rejected.
This article is not legal advice and is only general guidance. Get in touch with us using the contact section if you would like advice.
Matt and Sarah
This article applies to trained service personnel, there is a ‘strike’ rule in effect during training.