Necessity or nastiness? The hidden law denying cannabis for medicinal use
The last government had a peculiarly Stalinist approach to public wellbeing. It created over 1200 new laws, a record number for any government, many of which reflect a naïve belief that these would change public behaviour. Some were clearly stupid; thinking that drinkers would be deterred from behaving badly when drunk for fear of legal sanctions misses the point that many people get drunk deliberately to lose the inhibitions that such sanctions bring!
Perhaps the most pernicious principle of law was the one declaredin 2005 by way of a decision of the Court of Appeal (Criminal Division) which did not, prior to the hearing, make it into the public arena for discussion, nor was the reasoning the product of debates in Parliament. The effect of this decision is todeny the defence of necessity to those growing or possessing cannabis to treat medical conditions for which other treatments were ineffective. In the words of the Court, “its role [of the defence] cannot be to legitimise conduct contrary to the clear legislative policy and scheme”. The consequence was that ill people for whom cannabis might be the sole means to relieve suffering are no longer able to plead that this was the reason they had the drug if they get arrested.
Surprisingly many do get arrested sometimes in very aggressive ways. Just last week I received an email detailing how a middle aged ex-teacher with multiple sclerosis has had her front door broken down by the police in dawn raids on three occasions over the last six years to combat her use of cannabis for medicinal purposes. I presume everyone, except perhaps the police involved, would agree this is inhumane, a travesty of justice, and a complete waste of public money. There are regular court cases in which this defence is denied and so individuals are obliged to plead guilty to possession of what is now a Class B drug which carries a sentence of up to 5 years’ in prison, or up to 14 years if the court decides intent to supply (dealing) was present. Such judgmentsare devastating to the patient and their families but also quite distasteful to those charged with enacting the penalties. I have spoken with many magistrates and a significant proportion express privately their extreme dislike of being forced to criminalise such users of cannabis.
Why did the Court of Appeal do this? Since the reclassification of cannabis to class B in 2009 the UK has some of the most punitive laws on cannabis in Europe. Until 1971 cannabis was legal in the UK if in medicinal form and had been so for centuries. It was greatly beloved of Queen Victoria who swore by its analgesic properties claiming that she would never have had so many children without the help of this medication. Themedical license was removed in 1971 because a couple of rogue GPs in London, who were campaigning to make cannabis legal, began to prescribe medicinal cannabis with the recommendation that it be added to tobacco and smoked. Whether the threat to UK society of this behaviour was sufficient to ban a whole class of medication is very questionable, but since then we have had no cannabis medicines in the UK. This puts us in clear contrast to many other European countries where it is available on prescription . Even in the USA, which has even more extreme laws for recreational cannabis use than the UK, many states make cannabis available for health reasons on a doctor’s recommendation.
Until 2005, users arrested for cannabis possession didinvoke the defence of medicinal necessity (encompassed in the concept of Duress of Circumstance) which was that they needed cannabis as no other medication worked for their condition. So why did the Court of Appeal ban it in 2005? Reading the legal arguments the same circular attitudes that permeated the Labour government’s whole biased and ignorant attitude to drugs are recapitulated . The decision is logical if we make two flawed assumptions, that cannabis is illegal because it is harmful to society, and that punishment is an acceptable and effective deterrent. This translates to illogical conclusion that ill people with conditions such as multiple sclerosis, chronic pain and spasticity need to be protected from the potential harms of cannabis by criminalising them! As was noted following the decision the Court was influenced by the government’s refusal to relax the legislation in this context despite recommendations to do so by the House of Lords Select Committee.
Another reason was that the defence was becoming too common and that there would be obvious risks for the integrity and the prospects of any coherent enforcement of the legislative schedime. No concern for patient suffering there then, just some difficulties for the enforcers. Nowhere in the judgements is there any discussion of the historical precedents that cannabis was a useful medicine and that the decision to make it illegal was based on legal and moral rather than medical grounds. Perhaps not surprising given that the UK is one of the few western countries where drug control is vested in the ministry for justice/law rather than health. Nowhere is there any scope for allowing a doctor to decide if cannabis might be useful. The intention of the decision is clear – reduce cannabis use for whatever reason - by punitive means.
Is this just? Of course not, the judgmentreflects the nastiness of a statutory scheme that makes no provision for the medicinal use of cannabis, and existing law reflects ablinkered and regimented viewof life and behaviour. The consequences of this distasteful state of affairsis that it not only denies medical help to a profoundly suffering group of disabled people but also adds huge mental distress from the legal process and the public embarrassment of court exposure to a group of otherwise law-abiding citizens. Even worse some have had their possessions and bank accounts seized under the new proceeds of crime legislation where there is evidence that the offender has “benefited” from his “criminal conduct” (expressions that have a legal meaning but the confiscation laws are draconian). This situation surely would not continue if the public were aware of the iniquity of the law. Some patient test cases are now under review in the European Court and so hopefully it will soon be overturned.
The recent release of the cannabis extract spray medicine Sativex has been a move in the right direction but it will not deal with the needs of all patients and most doctors are still not willing to prescribe it. Some patients have used the right of freedom of trade in Europe embodied by the Schengen agreement to obtain medicinal cannabis from European countries such as the Netherlands where it is a prescription medicine . There is some uncertainty about the legality of this approach - the Home Office recently released a statement denying the legality of this approach in contrast to letters previously sent to individuals that sought clarification on the matter. It would be much preferred by patients, carers and doctors alike for justice to be enacted by revoking the current law. The new coalition government has asked for the public to suggest laws to be revoked – this is one I and surely any sane and humane citizen would recommend repealing.
Comments in italics are taken from the report by Stephen Leake, Barrister R. v Quayle and Other Appeals; Attorney-General’s Reference (No.2 of 2004), Re Ditchfield
Thanks to Dr Chris Lawson for research input.
2. Neutral Citation Number:  EWCA Crim 1415
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION)