Is there a medical marijuana defence?

By chillinwill · Oct 22, 2009 ·
  1. chillinwill
    The courts reject medical defences, James Welch tells Discogsfred, even when the defendant suffers chronic pain

    Discogsfred asks:

    Would a person charged with cultivating cannabis for personal consumption have any grounds for a defence on medical grounds. Does this factor in such prosecutions? And does the wide and legal availability of both cultivation equipment and seed stock, from tax paying UK businesses, effect the legitimacy of the prosecution?

    The court of appeal considered whether someone charged with cannabis offences could rely on medical reasons as a defence in the 2005 case of R v Quayle and others.

    The police discovered that Barry Quayle was cultivating cannabis plants in his loft. A bi-lateral amputee, he claimed that he used the cannabis to deal with chronic pain and that he preferred using it to the prescription drugs that he was given because these "knocked him out". At his trial for cultivating cannabis he tried to run the defence of necessity. The judge refused to put the defence to the jury and Quayle pleaded guilty. He was given a four-month prison sentence suspended for six months. He appealed the judge's decision not to allow the jury to consider a necessity defence.

    Quayle's appeal was heard with five others. Of the other appellants two were in a similar situation to Quayle in that they grew and used cannabis in order to alleviate their own chronic pain. Two of the others were convicted of importing organically-grown cannabis for distribution though a holistic clinic to people with HIV/AIDS and multiple sclerosis. In the final case the attorney general appealed against a judge allowing the jury to consider the defence of necessity put forward by a defendant who distributed cannabis free to those with various medical conditions. The jury acquitted the defendant in that case but the attorney general made use of a mechanism that allowed him to get a ruling from the court of appeal on the correctness of the judge's ruling.

    The question for the court of appeal was whether the defence of "necessity" could apply in these types of circumstances. Necessity is a common law defence that has been developed by judges over the years and is not defined in any statute. Its parameters are – as a result – rather vague and the court spent a lot of its judgment reviewing the relevant case law. It is closely related to the defence of duress, a defence that applies to all offences except murder and attempted murder, where a defendant claims to have been forced to commit an offence by the threat of death or serious physical injury but in the defence of necessity it is circumstances that force the person to break the law.

    The court of appeal held that the defence of necessity was not available in these cases (or should not have been in the last one) for two reasons:

    First, because parliament had set in place a legislative scheme for the supply of drugs. This provided for controlled drugs to be prescribed only by doctors but also for certain drugs to be designated whose use would never be legal. Cannabis fell into the latter category, although a limited exception permitted it to be used for medical research. In the court's view the "necessitous medical use on an individual basis … is in conflict with the purpose and effect of the legislative scheme." Allowing unqualified people to prescribe it to themselves or others "would involve obvious risks for the integrity and the prospects of any coherent enforcement of the legislative scheme." It would also necessitate a parallel but unregulated market in drugs. Put simply, allowing the appeals would run a coach and horses through attempts to regulate cannabis use.

    Second, having distilled from case law the elements of the defence of necessity, the court held that those requirements were not met: the circumstance to which Quayle and the other self-medicators were responding, their pain, was not extraneous to them and so was not open to objective assessment by the courts; the court doubted whether chronic pain could equate to the risk of serious injury that the case law required; and the requirement that the risk be "imminent and immediate" was not met in the case of those who had supplied the drug and did not sit well with the self-medicators' deliberate and continuous flouting of the law.

    A human rights argument – relying on article 8, the right to respect for private life – was raised. The court commented that if it was to be persuaded that the law was incompatible with the convention it would need a lot more medical and scientific evidence than was before it.

    The court of appeal was faced with a further human rights argument in R v Altham. Lee Altham suffered from chronic pain as a result of a road traffic accident. Like Quayle he considered that cannabis was a more effective and less unpleasant way of dealing with his pain than prescription painkillers. In response to a charge of possession of cannabis he raised the defence of necessity. Again the judge refused to put the defence to the jury, so Altham appealed arguing that the Misuse of Drugs Act 1971 had to be read subject to a defence of medical necessity in order to avoid the law being incompatible with article 3. Article 3 prohibits in absolute terms subjecting anyone to inhuman or degrading treatment (it also prohibits torture but there was no suggestion that that came into play here.) Altham argued that the pain from which he suffered was sufficiently grave to engage article 3 and that the state, by criminalising the only means he had of dealing with it, was in effect subjecting him to that pain.

    The court rejected his argument: it was not "treatment" by the state that had resulted in the pain he experienced but rather his road accident, the state could not be considered responsible for the harm done to him. Moreover, as in Quayle's case, the defence of necessity for which Altham was arguing ran contrary to the legislative scheme.

    So as the law currently stands there is no defence on medical grounds available to someone charged with cultivating cannabis. That is not to say that there may not be scope for a further human rights challenge to the law relying on the sort of extensive medical and scientific evidence that the court of appeal said it did not have before it in the Quayle case. But anyone contemplating such a challenge will need to bear in mind that this is the type of policy area where the courts will be extremely reluctant to interfere with decisions made by parliament, as the cases of Quayle and Altham themselves indicate.

    As for Discogsfred's second question, I can't see any way that the wide availability of paraphernalia which could be used for cultivating cannabis would have an impact on the law prohibiting the cultivation of cannabis. I can't see that this could give rise to any defence in law.

    James Welch
    October 21, 2009
    The Guardian

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