A legal defence in the UK to the possession, production and supply of cannabis oil?

Every ‘criminal’ should be a legal expert on every law they break.
Here is my experience (and views) on the ‘defence of necessity, please note: this is not legal advice, merely the views and interpretations of someone who has been through the process on more than one occasion and it is very likely I will have to do it all again.
The defence of necessity is well established in English criminal law, in essence, it is available when a defendant is arguing that it was necessary for them to commit a crime. In 1883, Sir James Stephen’s Digest of Law identified three requirements for the defence:
(i) the act is needed to avoid inevitable and irreparable evil;
(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided.
The above was cited in R v A (2001) Brooke LJ
In R v Martin [1989] Simon Brown J. summarised the principles of “duress of circumstances”:
“The principles may be summarised thus:
First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused’s will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called “duress of circumstances”.
Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted, if the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established.”
“Duress” most commonly arises when there is “pressure upon the accused’s will from the wrongful threats or violence of another”.
This is not (generally) the case if I supply cannabis oil to a terminal cancer sufferer, however it could be applicable in Ellie’s (not her real name) case.
Ellie is a 13 year old girl who suffers from Trigeminal Neuralgia (TN), which is described by the medical profession as “the most pain a human being can experience” it is also historically known as the “suicide disease” mainly due to the studies by Dr Harvey Cushing which demonstrated 0.6% mortality involving 123 cases of TN during 1896 and 1912.
Ellie’s mother contacted me a year ago regarding her daughter’s TN, describing how Ellie’s attacks could go on for days at a time it was obvious to me that this mother was at the ‘end of her tether’. Ellie had threatened suicide on a number of occasions and as the attacks were intensifying her mother was concerned over her daughter’s mental state.
Ellie was prescribed opiates for analgesia, in the main morphine, however her prescribed medications were ineffective in providing relief. I was asked to provide cannabis by Ellie’s mother as she had spoken to a mother in Colorado who had used cannabis with great success in treating her daughter’s TN. Ellie’s mother had attempted to obtain the cannabis spray Sativex in the UK, however Ellie’s pain consultant advised that he could not prescribe it to her as it was “only available for adults with MS”.
I arranged for a 1:1, 5% tincture of CBD and THC, (the same cannabinoid profile as Sativex) to be delivered and since Ellie has had access to this tincture she hasn’t had a full attack, she reports that if she administers the tincture sublingually (i.e. under the tongue) at the first indications her pain subsides and does not develop into a full TN episode.
Ellie’s Mother reports:
“Two drops every 20 minutes until the pain goes. Usually I only have to give her one dose, it’s amazing! Yesterday though it was a more serious attack and it took a few more doses until the pain was completely gone, then it came back in the evening, but again, one dose and it was gone. It’s helping her so, so much, it’s giving her a quality of life she didn’t have before”
In my opinion, a case such as this is a case of “duress” as identified in R v Martin BTW~ Now Ellie’s fear of a TN attack has been replaced by a fear that her mum will go to prison for administering it to her.
“Duress of circumstances” as clarified by Simon Brown J. (above) “can arise from other objective dangers threatening the accused or others” which (imo) is applicable in supplying cannabis oil to a terminal cancer sufferer. In such a case, are the legal standards met for the use of this defence?
(i) the act is needed to avoid inevitable and irreparable evil;
(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided.
In (i), by supplying cannabis oil to a terminal cancer sufferer the supplier is doing so in an effort to avoid the “death” of the person,
In (ii), in treating cancer there is a ‘requirement’ for cannabis oil for life, it could be argued that it is ‘reasonable’ to supply cannabis oil on an ongoing, continuing basis.
In (iii), by avoiding death, the cultivation of cannabis plants, the oil making process and the supply are all ‘lesser evils’ than the death of the cancer sufferer.
The defences of “necessity” and “duress” have some factors in common and they also seem to have been used interchangeably by the judiciary: ref– (M.V Clarkson, H.M.Keating and S.R.Cunningham , Clarkson and Keating Criminal Law , Chapter V ( 7th edn,Sweet & Maxwell, 2010) pg 357).

Why my interest in the defence of necessity?

In 2004, I successfully used the defense of necessity when I was tried at Chester Crown court on charges of ‘intent to supply’ cannabis to a sufferer of Multiple Sclerosis.
My first Crown Court trial resulted from my arrest on 6th September, 2003.
Details of my arrest:
ii) On 6th September 2003 Mr Ditchfield’s car was searched by police, and a spectacles case was recovered from its glove compartment, which was found to contain two plastic bags, one of which contained 6.8 gms of cannabis, the other of which contained 6.88 gms of cannabis resin. In interview Mr Ditchfield said that he was a campaigner who thought that sick people should have the right to use cannabis medicinally, and that, if a sick person with a genuine medical need (such as a sufferer from MS) asked him for cannabis, he would give it to him free.
The cannabis in his spectacles case was, he said, of medicinal quality, and was not for his personal use but for supply to anyone with a medical requirement who might need it to relieve their suffering. He said that most of the sick people he knew suffered from terrible diseases, and, although they were prescribed medication, it was cannabis that gave them relief.
Mr Ditchfield was charged with two counts of possession of a controlled drug of Class B with intent to supply contrary to s.5(3) of the Misuse of Drugs Act 1971, and two corresponding alternative counts of simple possession of such drug contrary to s.5(2).
At Chester Crown court I successfully argued that I should be permitted to use the defense of “necessity”
v) The judge left the defence to the jury, directing them that mental injury can be as serious as physical injury, and leaving them to consider “whether serious injury included the alleviation of symptoms of a dreadful illness like MS”.
The jury entered verdicts of not guilty on all counts.
Subsequently, the Attorney General referred my case to the Court of Appeal on a question of law.
vi) The Attorney General now seeks the opinion of this Court on the following question of law:
“May the defence of necessity be available to a defendant in respect of an offence of possession of cannabis or cannabis resin with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971, if his case is that he was in possession of the controlled drug intending to supply it to another for the purpose of alleviating pain arising from a pre-existing illness such as multiple sclerosis?”
The appeal process took over two years and during this time I was on bail yet again for further cannabis offences, it was obvious that the CPS did not want to proceed against me until they had removed the defense of necessity for cannabis cases.
In their ruling the learned Judges came to this conclusion:
Conclusion:
“The judges in Wales and in the Attorney General’s Reference in Ditchfield were wrong to leave the defence of necessity to the jury. In the case of Wales, the jury anyway convicted, but in the case of Ditchfield the jury acquitted.
It follows that all the appeals will be dismissed, and the question of law on which this court’s opinion is sought by the Attorney General in the reference will be answered in the negative.
The Judges explained how they reached their conclusion in their ruling, they clarified that the defense of necessity can, in effect only be used to: “Avoid serious injury or death”.
The Judges went on to rule that severe pain could not be equated with “the with the avoidance of serious injury” and they dismissed the danger of a person committing suicide due to pain as “too remote”.

So why do I think I have the defense of “necessity” back?

The Judges clarified the use of the “necessity” defense:
The detailed requirements of any defence of necessity
72. Extraneous circumstances. Lord Bingham spoke in Hasan of the need for “a just and well-founded fear”, while accepting that threats of death or serious injury will suffice.
By the Judge’s ruling, pain cannot create a well-founded fear that it will lead to serious injury or death,
78. In the case of Wales, the judge is criticised for failing to explain that serious pain could amount to serious injury because of its psychological consequences, but there does not appear to have been any evidence which could have justified such a case. Mr Wales did describe the pain he suffered as “life-threatening” and the judge reminded the jury of this, although it does not appear to have been Mr Wales’s case that there was an actual risk of suicide.
Therefore “necessity” cannot be used as a defence in court against charges of cultivation, production or supplying cannabis to alleviate a person’s pain or suffering.
If I cutivate, produce cannabis oil and supply it to an MS sufferer then I cannot use the defense of necessity, however, as explained above, I believe it can be used as a defense if I commit the same offences in regard to a terminal cancer sufferer.
79. Imminence and immediacy. We consider that these requirements represent another reason why, even at the detailed level, it is difficult to accept that there could be any successful defence of necessity in the cases of Quayle, Wales and Kenny. Their defences amount to saying that it is open to defendants on a continuous basis to plan for and justify breaches of the law. However, we need not express a view whether that would have alone justified a judge in refusing to leave their defences to a jury. The requirements of imminence and immediacy mean, in any event, in our view that the judge was right to refuse to leave any defence of necessity to the jury in Taylor and Lee, and that the defence should not have been left to the jury in Ditchfield. In each of these three cases, the defendant was taking a deliberately considered course of conduct over a substantial period of time, involving continuous or regular breaches of the law. In each case, the defendant was not the immediate sufferer and had every opportunity to reflect and to desist. The compassionate grounds which may well have motivated Mr Taylor and Ms Lee and which the jury evidently accepted did motivate Mr Ditchfield cannot avoid the fact that they deliberately chose to act contrary to the law on a continuous basis.
This is where it gets interesting: Another test of the defense is ‘imminence and immediacy’ I would argue that in the case of a terminal cancer sufferer who has been informed that there is no further treatment available and that they they only have 6 t 12 months to live passes this test.
81. The point made in paragraphs 79-80 may also be viewed in another way. Where there is no imminent or immediate threat or peril, but only a general assertion of an internal motivation to engage in prohibited activities in order to prevent or alleviate pain, it is also difficult to identify any extraneous or objective factors by reference to which a jury could be expected to measure whether the motivation was such as to override the defendant’s will or to force him to act as he did.
A Jury will understand me being motivated by a request from a parent of a dying or a seriously ill child, I can guarantee they will understand, if I cannot make them understand then that will be my failing, not theirs.
I also take issue with this point:
“they deliberately chose to act contrary to the law on a continuous basis”
Deliberate? all my decisions to break the law have been forced upon me by the law itself, the Home Office is responsible for cannabis being in schedule 1 of the MDA 1971, and this denies clinicians in the UK the power to prescribe cannabis oil even to terminal cancer patients. If Doctors could prescribe preparations of 1:1 THC:CBD oil I would not be compelled to commit the acts I do.
In June this year I seriously considered walking into a UK police station with 1 gram of cannabis oil and informing the police that it was my intention to give the oil to a terminal cancer sufferer, this act would have certainly have answered my question. However, if I had taken that course of action, many of my current plans and important projects would have gone by the wayside.
My duress? that comes from the law, and in the words of Thomas Jefferson: “If a law is unjust, a man is not only right to disobey it, he is obligated to do so”. How can I respect a law that has cannabis in schedule 1 deeming it to have no medicinal value when the contrary is obviously true?
If Doctors and Oncologists could prescribe cannabis oil then I would not have to break the law.
We have seen above that many learned Judges over hundreds of years have given great thought to the meaning of “duress”, my definition of duress? Is a desperate parent begging me to supply cannabis oil to treat their dying child, how can I refuse?
“The compassionate grounds which may well have motivated Mr Taylor and Ms Lee and which the jury evidently accepted did motivate Mr Ditchfield cannot avoid the fact that they deliberately chose to act contrary to the law on a continuous basis”
And the fact that I still continue to break the law is not a “choice” it is a “necessity”
NOTE: Court of Appeal rulings are binding on lower courts, i.e. Magistrates and Crown Courts.
Every UK cannabis activist should be aware of this important fact of UK law.
The Court of Appeal Judges, Lord Justice Mance, Mr Justice Newman and Mr Justice Fulford confirmed in the ruling:
“The jury has a well-established power to return a verdict of not guilty, whatever the law and however clear it may be”
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3 thoughts on “A legal defence in the UK to the possession, production and supply of cannabis oil?

  1. Alun Buffry

    This is the reply from then Home Secretary Charles Clark to a letter from Don Barnard in 2005

    Home Secretary
    2 Marsham Street
    London
    SW1P 4DF

    Thank you for your recent e-mail about the Law Lords’ ruling on the medical use of cannabis and related matters.

    On 17 October, the Law Lords upheld the Court of Appeal’s dismissal of a test case challenge by five people convicted of possessing or supplying cannabis. As you know, the appellants, in view of the great pain from which they were suffering, had argued they were entitled to a defence of necessity.

    Contrary to what you state in your e-mail, the House of Lords has not announced that medicinal cannabis is not a defence. However, they have written and informed all parties that they have refused the petition. There has been, and will be, no formal pronouncement. ‘The defence in similar cases is not debarred from entering a not guilty plea, but a judge would have to tell the jury that the defendant has no defence in law.

    The Government has made it clear that we would seek Parliament’s agreement to make any necessary changes to the law to enable the prescription of cannabis-based medicine for the purposes of relieving pain but not before product approval from the Medicines and Healthcare products Regulatory Agency (MHRA), The MHRA is responsible for evaluating the safety, quality and effectiveness of all prospectively prescribable products. It is a process which is designed to protect public health.

  2. Alun Buffry

    This is the reply from then Home Secretary Charles Clark eto a letter from Don Barnard in 2005

    Home Secretary
    2 Marsham Street
    London
    SW1P 4DF

    Thank you for your recent e-mail about the Law Lords’ ruling on the medical use of cannabis and related matters.

    On 17 October, the Law Lords upheld the Court of Appeal’s dismissal of a test case challenge by five people convicted of possessing or supplying cannabis. As you know, the appellants, in view of the great pain from which they were suffering, had argued they were entitled to a defence of necessity.

    Contrary to what you state in your e-mail, the House of Lords has not announced that medicinal cannabis is not a defence. However, they have written and informed all parties that they have refused the petition. There has been, and will be, no formal pronouncement. ‘The defence in similar cases is not debarred from entering a not guilty plea, but a judge would have to tell the jury that the defendant has no defence in law.

    The Government has made it clear that we would seek Parliament’s agreement to make any necessary changes to the law to enable the prescription of cannabis-based medicine for the purposes of relieving pain but not before product approval from the Medicines and Healthcare products Regulatory Agency (MHRA), The MHRA is responsible for evaluating the safety, quality and effectiveness of all prospectively prescribable products. It is a process which is designed to protect public health.

  3. Jeff Ditchfield Post author

    I have received a few private messages regarding the “sale” of cannabis compared to “giving it away”

    There is no actual criminal offence in UK law of “selling cannabis”, selling or giving away may be relevant at sentencing but both will be charged as “supply” offences

    There are various supply charges in the Misuse of Drugs Act:

    Possession with intent to supply is charged under – s.5(3) of the Act.

    Other supply offences are in section 4

    Supplying a controlled drug – s.4(3)(a)
    Being concerned in the supply of a controlled drug – s.4(3)(b)
    Offering to supply a controlled drug – s.4(3)(a)
    Being concerned in an offer to supply a controlled drug – s.4(3)(c)

    And if you are a friendly person, you should be aware that sharing a joint with a mate is a “supply” offense.

    In regard to other defences, some are outlined in Section 28 of the Act:

    “In relation to offences of possession (with or without intent to supply), production, supply, cultivation of drugs or the opium-related offences, it is a defence for the accused to show that:

    He neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove, for example that he was in possession of the drug.

    He neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug.

    That he believed the product to be a controlled drug, which had it been that drug, would mean that he would not have been an offence at the time that he committed it.”

    There is also a defence to possession under section 5(4) but other defense’s will require a whole new article.

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