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R v Quayle; Ditchfield; Lee; Taylor; Kenny; Wales  [2005] EWCA Crim 1415

Whether the defence of medical necessity was available for charge of possession of cannabis with intent to supply under the Misuse of Drugs Act 1971

Facts

The appellants appealed against convictions for the cultivation, production and possession of cannabis and cannabis resin. Q, W and K suffered from various illnesses that caused them severe pain and were arrested following the discovery of cannabis plants at their homes for personal use. T and L supplied cannabis to those who suffered such illnesses, from a holistic centre. The judge refused to allow the defence of necessity to be left to the jury in respect of Q, K, T and L. The defence was left to the jury with regard to W, who was convicted.

Issue

The appellants appealed on the basis that (1) the cultivation and use of cannabis was permissible in law because they genuinely believed that it was necessary in order to prevent them from suffering severe pain. (2) The legislative and common law schemes in respect of the defence of necessity were inconsistent and therefore, a failure of the common law to recognise the defence of necessity would be in breach of the European Convention on Human Rights 1950. (3) T and L argued that the defence of necessity should have been available to them because of their genuinely held belief that providing cannabis to others was necessary to prevent pain.

Held

It was held that (1) individual consideration of whether medical use of cannabis was necessary went against the legislative regime and therefore, because even doctors were not allowed to prescribe the drug, individuals were not qualified to self-prescribe. Furthermore, juries could not be asked to balance whether an individual’s needs outweighed the purpose of the legislative regime. This would allow juries to legislate. (2) The legislative regime was not in conflict with the European Convention. (3) A jury must be able to objectively consider extrinsic circumstances. It could not consider whether T and L’s personal motivation was such as to necessitate their actions. The appeals were dismissed.


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