SECTION 8. TREATMENT OF 'MEDICINAL' CANNABIS USERS BY THE UK CRIMINAL COURTS

8.1 Overview

8.1.1 In consideration of the illegal nature of cannabis for many patients already self-medicating with the drug, the BMA recommended in November 1997: "While research is underway, police, the courts and other prosecuting authorities should be aware of the medicinal reasons for the unlawful use of cannabis by those suffering from certain medical conditions for whom other drugs have proved ineffective."

8.1.2 I am not aware of any separate notification of "medicinal" defences to the Home Office or Scottish Office allowing any national statistics to be determined. We are drawing on 3 main sources for information on how the courts are currently responding to medicinal uses defences:

(1) Reports from survey respondents citing medicinal reasons as a motivation for use, who have been "busted", giving outcomes where stated.

(2) Previous cases involving medicinal use, outcomes where known.

(3) Press and internet reports.

 

8.2 IDMU user surveys

8.2.1 In the combined 1994-1998 sample, some 70 respondents reported medicinal use as a major motivation for using cannabis. Of these, 27 (39%) had been "busted" for cannabis offences.

8.2.2 Table 6 below presents, where stated, the results of prosecutions, and conditions involved, for respondents indicating both medicinal use and a cannabis "bust". The quantities of drugs involved in each case and whether medical use was raised during proceedings is not known.

8.2.3 The most common disposal was by way of fine, and I note that the heaviest fines levied were against users whose medicinal need was vague or questionable. However the 18 month sentence imposed for simple possession where cannabis was used for pain in arthritis might not suggest a lenient attitude by the courts.

8.2.4 The proportion cautioned at 22% was well below the national average, and the "bust rate" for "medicinal" was about 50% higher than the rest of the sample. These may reflect institutional scepticism at claims of therapeutic benefit, or merely be a function of the higher average age of this subgroup of users, leading to an increased risk of detection, and a perhaps greater reluctance on the part of the police to caution more mature offenders compared to younger people.

 

Table 6

IDMU Drug User Surveys 1994-98 Outcomes of criminal prosecutions reported among medicinal users who reported one or more cannabis "busts"
Sentence Type	n	%	Offence/comments
Total Respondents	27	100%	0.97% of total sample, 39% of "medicinal" users
Cautioned	6	22%	5 x possession only (depression/asthma; depression/stress/pain; stroke victim (carer); muscle relaxant; back pain/muscle relaxant)  1x possession + production
Conditional Discharge	3	11%	2x possession, (asthma/pain/stress; general health)  1x production & possession (not stated)
Fine	12	44%	£25 (possession cannabis + amphet - sleep/pain),  £30 (possession - asthma/pain/stress), £30 (possession - not stated), £50 (import - arthritis/pain), £60 (possession/production - pain), £65 (possession - alcoholism/depression), £75 (importation - "severe illness"), £80 (possession with intent - pain/asthma), £125 (production/possession - depression) £200 (possession - "health"), £650 (possession, production, possession with intent - insomnia) Amount unknown (possession - pain/arthritis).
Community Service Order	2	7%	180hr (possession - back pain/insomnia)  80hr (pain/asthma)
Suspended Sentence	2	7%	4mth susp 2 yr. (possession with intent - migraine)  Unknown (possession with intent - pain/asthma)
Immediate custody	2	7%	9mth (poss. 1967 - glaucoma/asthma),  18mth (possession - pain/arthritis)
Unknown/Other outcome	3	11%	Result unknown (condition not stated),  Result unknown ("asthma"), "Didn"t get caught" ("incurable disease")

8.3 IDMU case records

8.3.1 The main service provided by IDMU is expert evidence to the criminal courts on most aspects of drug misuse, including comment on consumption patterns, valuations, effects, paraphernalia and yields of cannabis cultivation systems. Just under 10% of referrals to our agency involve a claim of medicinal cannabis use, where comment is sought on scientific and other evidence as to the potential therapeutic use in specific conditions. In order to filter out bogus medical defences, the instructing solicitor is required to provide evidence of a "relevant medical condition" before any comment on medicinal uses can be offered. The conditions encountered in cases and referrals to date are summarised below.

 

Table 7.1

IDMU Medicinal Cannabis Cases 1 - Conditions encountered in referrals
Condition	n	%
Pain Relief	24	60%
Addiction to alcohol/heroin	4	10%
Spasm/Cerebral palsy	3	7.5%
Asthma	3	7.5%
Insomnia	3	7.5%
Stress relief	2	5%
Antidepressant	2	5%
Epilepsy	2	5%
Multiple Sclerosis	2	5%
Huntingdon"s Chorea	1	2.5%
HIV	1	2.5%
Condition not stated	3	7.5%
Total cases (8.5% of total IDMU enquiries)	40	100%

 

8.3.2 The vast majority of cases have involved pain relief and/or spinal injury, there have been a limited number of other conditions. Several cases have involved more than one condition and thus columns cannot be added together to produce totals.

8.3.2 In most of our cases the defendant is charged with possession of cannabis or cannabis resin with intent to supply, including a substantial number of cultivation cases. The nature of our service inevitably over represents the borderline between personal use and supply - defendants who are cautioned do not need expert evidence. The medicinal issue is commonly raised as an explanation of amounts possessed, or used as mitigation during sentencing where there is a guilty plea to possession and/or production/cultivation.

8.3.5 Medical evidence, where substantiated, is frequently accepted by the court or the Crown. The evidence commonly results in a plea bargain and non-custodial sentence, although "possession with intent" charges are commonly pursued on users with more than a few days supply, or more than a handful of cannabis plants. Although the courts can show compassion in some cases, there is considerable variation in outcomes and sentencing for similar offences. The outcome and sentencing is very much affected by the attitudes of individual judges.

8.3.6 In my experience, juries are more likely to acquit defendants in borderline cases or even with larger quantities where there is convincing medical evidence, given similar circumstances concerning paraphernalia.

Table 7.2

IDMU Medicinal Cannabis Cases 2 - Disposal of cases
Disposals	Number	% of cases	Comments
Case not pursued beyond initial enquiry	6	15%	Legal aid not awarded or other expert used
Supply charges withdrawn	8	20%	300 plants (pain/arthritis) 2.3kg outdoor homegrown (pain) 30 plants (alcoholism) 20 plants (HIV) 120 plants (pain) 150 plants (pain/oral use) 450g resin (opiate withdrawal) 14 plants (pain)
Supply dismissed/ no case to answer	4	7.5%	6 large plants (spinal injury), 300g "homegrown" (Asthma), 2oz Resin (spinal injury) 40 plants (pain)
Acquitted by jury of supply charges	6	15%	85 plants (spinal injury) 8oz resin + 80 plants (epilepsy) 97g resin (arthritis) 82 plants (stress relief) 247g resin (Pain) 100g herbal (pain)
Acquitted by jury of all charges (necessity)	2	5%	1. MS - possession/supply of spouse - other expert used, 2 . Pain/spinal injury - 18 plants - judge held necessity to apply where there is "no alternative way to avoid death or serious injury"
Plead guilty (inc. production/ social supply)	5	12.5%	2000 small plants (pain) 500g herbal (asthma) 2oz resin (pain/asthma)
Convicted by Jury/Sheriff	7	17.5%	50 plants (epilepsy) 200g oil (pain/opiate addiction) 4oz resin (pain) 8oz resin (pain) 225 plants (alcoholism) 85 plants (pain) 120 plants (pain/alcohol)
Hung juries/retrials	2	5%	97g resin (spinal injury - acq) 120 plants (pain/alcohol - con)
Live cases awaiting trial	4	10%
Outcome/Sentence unknown	9	22.5%
Total cases	40	100%	8.5% of total IDMU enquiries

 

8.3.7 Some judges appear more willing to forego custodial sentences where there is persuasive evidence of medicinal use. Other judges take a harder line, particularly in Scotland where custodial sentences are common for minor cultivation offences even where supply charges have been discontinued, and in a case at Northampton where the defendant"s acquittal by a jury on a charge of possession of 97g resin with intent (following an initial hung jury and retrial), was followed by a large fine (£1000) on the charge of simple possession, to which the defendant had already pleaded guilty.

Table 7.3

IDMU Medicinal Cannabis Cases 3 - Sentencing of offenders
Sentence	Number	% of cases	Comments
Conditional/ Absolute discharges	5	12.5%	2.3kg homegrown (pain)  300 plants (pain) 80 plants (epilepsy) 2x spouses of accused growers
Probation	2	5%	Unknown - 247g resin poss. only  2yrs - prod 30 plants (alcoholism)
Fine	4	10%	Costs only - possession 8oz resin/production 80 plants following supply acquittal (epilepsy);  £1000 for possession of 97g resin following jury acquittal on intent charge (pain),  £300 for production of 85 plants after jury acquittal on intent (pain/spinal injury), £200+ costs for production 6 plants after supply dismissed by Sheriff (pain/spinal injury)
Suspended sentences	3	7.5%	2000 cuttings (pain),  social supply of resin (pain) 20 plants (HIV)
Community Service Order	3	7.5%	50hr - 30g herbal (pain/insomnia)  150hr - 14 plants (pain), unknown - 30 plants (alcoholism)
Immediate custody	7	17.5%	3yr - cultivation 220 plants (alcoholism)  12mth 40 plants with intent (pain)  9mth small cupboard production only (pain); 9mth - 40 plants in greenhouse - production only (pain/spinal injury); 9mth - 80 plants (pain) 6mth - social supply 3oz resin  unknown - 50 plants (epilepsy)
Live cases still awaiting trial	4	10%
Result/Sentence unknown	9	22.5%
Total cases	40	100%	8.5% of total IDMU enquiries

 

8.4 Press and Internet Reports

8.4.1 It is easy to point to some of the recent sentencing of medicinal users in the UK as indications of compassion and understanding entering the judiciary with regard to such cases. However, within the context of chronically or terminally ill person self-medicating, one should not underestimate the psychological and physiological damage caused by the stress of a police raid, arrest and subsequent court case, regardless of outcome. When cases take a long time to come to court the stress and foreboding are prolonged and, since the medicine which they had relied on is no longer available to them, in such cases the patient is probably more vulnerable and less able to cope with their illness than before.

8.4.2 The stress may even be exacerbated by the fact that there is even less consistency in UK sentences for medicinal cannabis use than there is for cases involving recreational use. In consequence the patients have very little certainty in approaching their trial as to what sentence they may receive or, indeed, what plea they may be able to enter.

8.4.3 In June 1998 Colin Davies, a former joiner who had suffered serious spinal injuries falling 60ft from a bridge in 1994, was acquitted by a jury in Manchester Crown Court of charges of cultivation after representing himself with a defence of necessity.

8.4.4 However, at Maidstone Crown Court in 1997 Andrew Betts, Britain's only sufferer of Familial Mediterranean Fever, an inherited and non-fatal condition, was conditionally discharged for two years after appearing on charges of cultivating 45 cannabis plants at his home. Despite having been the sole subject of licensed cannabis tests at Hammersmith Hospital in west London, which enabled him to halve his daily intake of morphine and left him no longer clinically depressed, Betts was forced to plead guilty after Mr Recorder Peter Morgan ruled that his defence of necessity or duress could not be put before a jury.

8.4.5 In 1998 Margaret Startin, a mother of two who cares for her chronically arthritic 54-year-old husband, was fined after police raided her home in Cannock and found plants growing under lights in the loft. At Stafford Crown Court she admitted possessing cannabis with intent to supply and was fined £500 and ordered to pay £1,123 costs. Her husband was fined £250 after he admitted growing the drug .

8.4.6 Those who have been driven to use cannabis because they see it as the only efficacious treatment for their illness seem likely to continue to use it if they can despite the legal consequences.

8.4.7 In March Richard Gifford, a liver transplant patient and former Royal Engineer, received a two year conditional discharge for growing 12 cannabis plants in his back garden. Despite this he 'pledged to carry on smoking the drug: "While I am still alive, I intend to carry on using it," he said' .

8.4.8 Davies, too, stated that he would not stop medicating himself: "I will carry on smoking cannabis," he was quoted saying. "It helps the terrible pain I get from my injuries. I feel vindicated that the jury has listened to me." This prompts the question of the validity or purpose of repeated prosecutions of medicinal cannabis users with no likelihood of forcing them to cease their use of the drug.

8.4.9 One aspect of note in the medical cases reported in the UK press is that they are primarily involved with patients who grow their own cannabis. This may be because it is easier to conceal the drug itself as a small package of herbal cannabis or cannabis resin than to successfully hide the cultivation of a number of plants for a period of months. However, it may indicate that medicinal cannabis users are simply more likely to grow their own plants. There are many reasons for medicinal users to do so. They can be guaranteed of the purity of the drugs they use. They can avoid contact with dealers and the associated drugs scene. They can afford to medicate themselves as and when needed at a fraction of the cost of commercially available cannabis. They can avoid having to search for sources of their medication. All these might be seen as aspects of harm reduction in the case of non-recreational drug users.

8.4.10 It is fairly clear that many of those prosecuted feel it to be iniquitous that it is through their determination to avoid being involved in a drugs subculture or to buy in to the criminal industry they have been branded as criminals.

8.4.12 Colin Davis is quoted as saying "I read about cannabis as a relief from pain and I actually went out and bought some off the streets. ...I did not like having to do that so I decided to have a go at growing some for my own use on my own property. I did it behind my own front door, there was no interference with anyone else. I now find myself here and I feel terrible."

8.4.13 By being forced to relinquish their own supply users are forced into the very behaviour that their cultivation of cannabis was intended to avoid. In the case of Richard Gifford the report stated that he had "been buying it on the streets since the police cut down his twelve 8ft plants.".