Factual and Procedural Background
This opinion concerns five appeals against conviction and one Attorney General's reference, all raising issues about the availability and scope of a defence of medical necessity in relation to offences under legislation controlling cannabis cultivation, production, importation, and possession.
The appellants include individuals who cultivated cannabis for personal medicinal use due to chronic pain and related conditions, and others involved in the importation and supply of cannabis for medical purposes through a clinic. The cases were heard in various Crown Courts, with differing rulings on whether the defence of medical necessity could be left to the jury.
The Attorney General's reference involves a defendant charged with possession of cannabis with intent to supply, asserting a defence based on the medicinal use of cannabis to alleviate pain from pre-existing illness.
The legislative context involves the Misuse of Drugs Act 1971 and associated regulations, which classify cannabis as a controlled drug and regulate its importation, production, possession, and supply, including exemptions for licensed medical and scientific use.
Legal Issues Presented
- Whether the defence of medical necessity is available in respect of offences involving cannabis cultivation, possession, production, importation, or supply.
- Whether serious pain or the avoidance of pain can amount to serious injury sufficient to ground a defence of necessity.
- Whether the defence of necessity requires the causative threat or pressure to be extraneous to the defendant.
- Whether the defence of necessity can be extended to allow unqualified individuals to self-prescribe or supply cannabis for medicinal purposes contrary to the legislative scheme.
- Whether the legislative scheme and the limitation or exclusion of the defence of necessity in these cases is compatible with the European Convention on Human Rights, particularly Article 8.
Arguments of the Parties
Appellants' Arguments
- The appellants argued that their cultivation, possession, or supply of cannabis was excusable as they genuinely and reasonably believed it necessary to avoid serious injury or pain.
- They submitted that severe pain should be equated with serious injury and that pain can lead to psychological injury, which should be considered within the defence.
- They contended that the defence should be left to the jury based on the evidence, including expert medical reports.
- Some appellants argued that the defence should apply not only to themselves but also to third parties for whom they assumed responsibility.
- It was submitted that excluding the defence would breach the European Convention on Human Rights, particularly the right to private life under Article 8.
Crown and Attorney General's Arguments
- The Crown submitted that the defence of necessity requires the causative threat to be extraneous to the defendant, which was lacking in the appellants' cases.
- They argued that the legislative scheme carefully regulates medicinal use of drugs, excluding unqualified self-prescription or supply of cannabis.
- It was contended that the defence of necessity should not be extended to cover medicinal use of cannabis contrary to the statutory framework and public policy.
- The Attorney General further submitted that the defence does not embrace avoidance of serious pain and should not be extended to do so in these circumstances.
- The Crown maintained that the legislative scheme is compatible with the European Convention on Human Rights and that any change to permit medicinal cannabis use must come from Parliament or the Secretary of State.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hasan [2005] UKHL 22 |
Limits and features of duress as a defence; necessity closely related to duress by threats. |
Used to establish that necessity must be strictly limited and involve extraneous circumstances objectively assessed. |
| Martin [1988] 88 Cr.App.R. 343 |
Defence of necessity by circumstances available if acting reasonably and proportionately to avoid death or serious injury. |
Referenced to define criteria for necessity and to illustrate availability of defence in extreme cases. |
| Pommell [1995] 2 Cr.App.R. 607 |
Recognition of defence of necessity related to duress of circumstances, except for murder and some treason. |
Supported the principle that necessity can be a defence where greater evil is avoided. |
| Rodger & Rose [1998] 1 Cr.App.R. 143 |
Defence of necessity unavailable where causative factor is subjective (e.g., suicidal tendencies of defendant). |
Distinguished cases where threat must be extraneous; rejected defence based solely on defendant's internal state. |
| Shayler [2001] EWCA Crim 1977; [2003] 1 AC 247 |
Clarified difficulty in defining limits of duress and necessity; necessity requires external threat and objective assessment. |
Applied to reject defence where no external agency causing imminent threat was identifiable. |
| Brown [2003] EWCA Crim 2637 |
Requirement for objective evidence supporting defence of necessity; subjective pain or side effects insufficient. |
Confirmed that defence should not be left to jury without sufficient evidence of extraneous threat causing serious injury. |
| Bourne [1939] 1 KB 687 |
Necessity in medical context; lawful acts done in good faith to preserve life. |
Discussed as part of medical necessity arguments but distinguished from present context. |
| Gillick v. West Norfolk and Wisbech Area H.A. [1986] 1 AC 112 |
Doctors justified in acting in best interests of minors without consent under necessity. |
Referenced to illustrate medical necessity in a different legal context. |
| In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 |
Doctors may act in best interests of incapacitated adults under necessity. |
Used to highlight limits of medical necessity outside criminal law context. |
| In re A [2001] Fam 147 |
Clinical dilemmas and necessity; choice between evils justified in medical treatment. |
Considered in relation to medical necessity but distinguished from criminal necessity defence. |
| Southwark L.B.C. v. Williams [1971] Ch. 734 |
Refusal to recognize defence of necessity for continuous unlawful self-help. |
Applied to support principle that continuous breaches of law unlikely to be excused by necessity. |
| Venables and Thompson v. News Group Newspapers Ltd. [2001] Fam 430 |
Extension of common law to protect rights under the European Convention on Human Rights. |
Referenced by appellants on ECHR arguments but distinguished from present case. |
| Philip David Lockwood [2002] EWCA Crim 60 |
Directions on necessity defence and jury consideration. |
Considered but court found no basis to rely heavily on it for leaving defence to jury. |
Court's Reasoning and Analysis
The court began by reviewing the facts of each appellant's case, focusing on the nature of their pain, medical histories, and the evidence presented in support of medical necessity.
It acknowledged the existence of a defence of necessity at common law, closely related to duress by threats, which applies only in narrowly defined circumstances involving an objective extraneous threat of death or serious injury.
The court emphasized that the threat or coercion must be extraneous to the defendant, capable of objective assessment by judge and jury, and that the defendant's conduct must be reasonable and proportionate to avoid the threat.
Applying these principles, the court found that the appellants' cases lacked the essential element of extraneous threat, as their conduct was motivated by internal states such as pain or risk of suicide, which are subjective and not objectively verifiable external threats.
The court rejected the argument that severe pain alone equates to serious injury sufficient for necessity, noting the inherent subjectivity in pain assessment and the need for imminence and immediacy of threat.
It held that the defence cannot justify continuous or deliberate breaches of the law over extended periods, as was the case with the appellants.
The court analyzed the legislative framework, noting that the Misuse of Drugs Act and associated regulations carefully regulate medicinal use of drugs, including cannabis, restricting use to licensed medical or research contexts and excluding self-prescription or supply by unqualified persons.
Granting a defence of necessity in these circumstances would conflict with the legislative scheme and public policy, potentially undermining enforcement and creating an uncontrolled market for cannabis.
Regarding the European Convention on Human Rights, the court found no incompatibility between the legislation and Article 8, and no basis to extend the common law defence to avoid such incompatibility.
The court concluded that the trial judges' rulings were correct in excluding the defence of medical necessity from the jury in most cases, though some judges erred in leaving it to the jury where the defence was unsupported by evidence.
Holding and Implications
The court DISMISSED all five appeals against conviction and answered the Attorney General's reference in the negative, holding that the defence of medical necessity is not available for offences involving cannabis cultivation, possession, importation, or supply in the circumstances presented.
The direct effect is that individuals cultivating or supplying cannabis for purported medicinal purposes without statutory authority cannot rely on a common law defence of necessity. The legislative scheme remains the sole authority governing medicinal use of cannabis.
No new legal precedent expanding the defence of necessity was established. The court emphasized that changes to permit medicinal cannabis use must come from Parliament or the Secretary of State, not the courts.