Medical Necessity (Duress of Circumstance) in UK Law

See Also Medicinal Uses

In June 1998 I acted as a witness for Mr Colin Davies at Manchester Crown Court who used cannabis to combat pain and muscle spasm arising from a spinal injury. In summing up, Woodward J held that there were three elements to the offence of cannabis cultivation:
(1) Is the substance cannabis?
(2) Did the defendant cultivate it?
(3) Did s/he do so unlawfully.

In respect of the third element, Woodward held that the defence of necessity involved the following elements, and that the burden of proof is on the prosecution to demonstrate that circumstances of necessity do not exist:

(1) Do the circumstances giving rise to necessity exist as stated, i.e. the offence was necessary to avoid ‘death or serious injury’

(2) Was the offence committed for that reason – namely in order to prevent that death or serious injury

(3) Was the ‘evil’ of the offence proportionate to the ‘evil’ of what was being avoided or prevented - there must be reasonableness and proportionality
In July 1999 I was involved in a second trial of Mr Davies , who was again aquitted of cannabis possession and supply charges to individuals with severe medical conditions. I have been instructed in many subsequent cases where medicinal cannabis users, with conditions including MS and chronic back pain have used the common law defence of necessity (duress of circumstances) to avoid conviction .
In the case of Lockwood, at first instance McCallum J held on the question of serious injury: “... serious injury doesn’t necessarily mean just simply wounds found upon them, or something physical about the person. Serious injury can, of course, be mental as well, sometimes even more serious than the external damage one sees.” As to the burden of proof he held “It is for the prosecution to satisfy you so you are sure that necessity, as I have just defined it to you, is not a possibility in this case... If you are sure that necessity played no part in this until after the interview then he is guilty” At the Court of Appeal Mitchell J held (obiter) “The applicant also complains about the summing up, and in particular the judge’s directions upon the defence of necessity. In our judgement, his directions were both clear and correct”

I have given evidence as to the effects of cannabis, and of other drugs, before the courts on many occasions (including instructions by the Crown), and my testimony has been accepted in trials throughout the UK. When the Court of Appeal considered the case of Lockwood my evidence was not criticised, and the trial judge’s directions were upheld as ‘clear and correct’. In the summing up in Lockwood at first instance McCallum J directed the Jury as to my evidence thus:

“A word about Mr Atha’s evidence. He has been called as an expert and as an expert he is a person who in the ordinary course of events would normally have a greater in-depth knowledge of the subject than you ordinary members of the jury just called from the streets.”

“When cross examined, he (Mr Atha) conceded that he was not a qualified doctor. He had not examined the accused and therefore could not actually say what the effect of that particular drug would have on this particular accused, and he was not qualified to assess his medical needs and he does not prescribe drugs. He was there simply to tell you what his researches over the years had told him that cannabis did, relying on anecdotal evidence and also such clinical tests as had been carried out, and he relied, you will remember, on a number of medical reports. “

“As an Expert Witness, members of the Jury, you are entitled to take into account absolutely everything he says. You are also entitled to reject any part of his evidence which does no accord with you... It is not, of course, for the expert to decide whether or not the defence of medical necessity arises. That is solely your purpose...”

It is for the jury to decide whether the duress of circumstances exists - whether the claimed conditions exist, whether any of these amount to ‘serious injury’, and whether using cannabis as a treatment for such a condition is justifiable - based on all the individual circumstances of each case. Where a defence of ‘duress of circumstance’ is raised, the burden is on the Crown to disprove the defence.

In view of the duty of the Crown Prosecution Service to consider the questions of likelihood of conviction (51%) and whether a prosecution is in the public interest. It appears questionable whether prosecutions in ‘possession’ cases involving a demonstrable medical need meet either criterion, or even supply to a medicinal user (e.g. by a carer), although where supply offences involve disribution to recreational users, medicinal use by the supplier offers no defence .

In May 2005 the Court of Appeal considered appeals against conviction by five appellants (Quayle, Wales, Kenny, Taylor and Lee) , and a cross appeal by the Attorney General against the judges direction in a case (Ditchfield) where the defendant was acquitted on the basis of medical necessity.
(a) After reviewing the facts of each case, submissions on the parts of the appellants and Crown, and the legal authorities, the court distinguished Lockwood and criticised the trial judges’ subsequent directions in Ditchfield stating “In our view, that was to put too much weight on a slight foundation. The question whether it was appropriate to leave any issue of necessity to the jury at all was never argued or before the court in Lockwood.”

(b) They approved the decision in Brown “In this case the choice facing the applicant was not severe pain without cannabis or absence of pain with cannabis, rather it was absence of pain with adverse side effects without cannabis, and, on his account, absence of pain with minimal side effects with cannabis. The difference is restricted to the adverse side effects which, however unpleasant, could not sensibly be said to raise a prime facie possibility of serious injury, let alone one such as would overwhelm the will of the defendant. Quite apart from this point, there has to be material from which a jury could come to a conclusion that they were not sure from an objective stand point that the applicant was not acting reasonably and proportionately. The evidence makes it clear that it was possible for the applicant to control pain by conventional and legal means. These arguments are sufficient to demonstrate that the learned judge was correct to conclude that the evidence, even at its highest, was not sufficient to raise a defence to be left to the jury.”

(c) The Court noted “The necessitous medical use on an individual basis which is at the root of the defences suggested by all the appellants and Mr Ditchfield is in conflict with the purpose and effect of the legislative scheme. First, no such use is permitted under the present legislation, even on doctor's prescription, except in the context of the ongoing trials for medical research purposes. Secondly, the defences involve the proposition that it is lawful for unqualified individuals to prescribe cannabis to themselves as patients or to assume the role of unqualified doctors by obtaining it and prescribing and supplying it to other individual "patients". This is contrary not only to the legislative scheme, but also to any recommendation for its change made by the Select Committee and Runciman Reports. Further, it would involve obvious risks for the integrity and the prospects of any coherent enforcement of the legislative scheme. A parallel but lawful market in the importation, cultivation, prescription, supply, possession and use of cannabis would have to come into existence, which would not only be subject to no medical safeguards or constraints, but the scope and legitimacy of which would in all likelihood be extremely difficult to ascertain or control.” and added “We are concerned with sufferers whose conduct contravenes the legislative policy and scheme on a continuing and regular basis, but who maintain nonetheless that this is excusable.”

(d) Re Human Rights Act implications, the court held at para 67 “The legislative policy and scheme are clear. We have accepted that this does not mean that a common law defence of duress by threats or necessity by extraneous circumstances can never have a place... But its role cannot be to legitimise conduct contrary to the clear legislative policy and scheme, as would in our view be the effect of the defences suggested in the appeals and reference before ... We see no basis in art 8 for altering our conclusions regarding the scope and the inapplicability of the common law defence of necessity by extraneous circumstances in the context of the present appeals and reference.” Para 68 “The issues which would be involved in considering the compatibility with the Convention of the United Kingdom's drug legislation if there is no relevant common law defence of necessity are not straightforward. Interference with the right to respect for private life is permissible under art 8(2) if "in accordance with the law and . . .. necessary in a democratic society . . ... for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others". Within the limits indicated in Taylor (Joseph) v Lancashire County Council [2005] EWCA Civ 284, the court's decision would involve an evaluation of the medical and scientific evidence, a weighing of the competing arguments for and against the immediate change recommended by the Select Committee and the Runciman Committee, a greater understanding of the nature and progress of the tests of cannabis which have taken and are taking place, and a recognition that, in certain matters of social, medical and legislative policy, the elected government of the day and Parliament are entitled to form overall policy views about what is best not just for particular individuals, but for the country as a whole, in relation to which the courts should be cautious before disagreeing.” Para 69 “On the material before us, so far as it is appropriate for us to express any view, we would not feel justified in concluding that the present legislative policy and scheme conflict with the Convention. That is so, even if there is no common law defence of medical necessity such as that for which the appellants and Mr Ditchfield contend. We would not feel justified in concluding that either Parliament or the Secretary of State has acted inappropriately or delayed unduly in maintaining the present general policy and scheme up to the present date pending the outcome of and decisions on the basis of tests which are, we are told, still on-going.”

(e) At Para 75, the court held that threats of serious injury must have an extraneous cause: “On the authorities..., the requirement of an objectively ascertainable extraneous cause has a considerable, and in our view understandable, basis. It rests on the pragmatic consideration that the defence of necessity, which the Crown would carry the onus to disprove, must be confined within narrowly defined limits or it will become an opportunity for almost untriable and certainly peculiarly difficult issues, not to mention abusive defences. On that basis, we consider that the Crown's first narrow point, namely that, for the defence of necessity of circumstances to be potentially available, there must be extraneous circumstances capable of objective scrutiny by judge and jury, is valid.”

(f) At paras 77-78 the court ruled on the issue of pain: “There is, on any view, a large element of subjectivity in the assessment of pain not directly associated with some current physical injury. The legal defences of duress by threats and necessity by circumstances should in our view be confined to cases where there is an imminent danger of physical injury.” (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. His case on the facts was that cannabis helped him cope with the pain, without side effects, while the prescribed medicines had side-effects (stopping him eating) and, on the expert evidence that he called, also involved medical risks such as a general risk of peritonitis. We do not see in the evidence any basis on which a jury could be asked to conclude that Mr Wales faced any imminent risk of serious injury sufficient to justify him taking cannabis on a regular basis.”

(g) Threats must be imminent and immediate (para 79): “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.”

(h) The court held against the principle of medical necessity (paras 80-81) “the underlying theme, that a continuous and deliberate course of otherwise unlawful self-help is unlikely to give rise to the defence has itself, in our view, continuing relevance... 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. If the response is that the defendant was not forced, but chose to act as he did, then the [above] considerations .... apply.”

(i) The court concluded: “...none of the defendants in any of the cases before us was in our view able to rely at trial on any facts which could at common law give him or her any defence of necessity.”

Following the above decision, the scope of the medical necessity defence has been tightened to the extent that relief of chronic symptoms, such as pain, fall outwith the defence, however acute symptoms such as epilepsy might fall within the scope should use of cannabis (or other controlled drug) prevent, or arrest an attack or the onset of an attack. The decision of the Court of Appeal in Quayle and others is subject to appeal to the House of Lords and possibly beyond, and the judgement is unlikely therefore to represent the final settled state of the law on this matter.

M.J.Atha Oct 2005