CANNABIS- IS THE CRIMINALISATION JUSTIFIED? by Luke Smith

The war on drugs, specifically cannabis, has been long debated. It was announced in May 2008 that the government re-classified cannabis from a Class C controlled drug to Class B under the Misuse of Drugs Act 1971, a decision contrary to the recommendation of the Advisory Council on the Misuse of Drugs (ACMD).  Such a decision warranted harsh scrutiny as the government’s reasoning seemed flawed having overridden the expert opinion of the ACMD, where it is contended that political considerations may have overridden scientific evidence. The report found ‘soft drugs’ such as herbal cannabis commonly smoked as a ‘joint’ are not so dangerous. ‘Hard drugs’ such as ‘sensimilla’ (commonly called ‘skunk’), they claim, can have serious health issues. Hence, why does the government feel the need to reclassify cannabis when the overwhelming tide of expert and public opinion is against it?

Cannabis: A mental disturbance or medicinal healer?

The ACMD’s 2008 report recognised that young people are the predominant users of the drug; however, they found a decline in use to 20% from 25% five years previous to releasing the report. The government tried justifying their decision using the ‘Gateway Theory’ which describes the possibility that use of cannabis leads to use of more dangerous drugs such as opiates and cocaine. Again this argument was flawed, as the ACMD found it impossible to state whether cannabis leads to dependency upon hard Class A drugs, who considered the risks to be small and certainly less that those associated with the use of alcohol and tobacco. The case of Patricia Tabram brought much controversy over the medicinal use of cannabis. At 68, she suffered much pain, and began growing her own cannabis which she used whilst cooking to aid her pain. As a grandmother she was not supplying cannabis or affecting anyone else through her habit, yet received 250 hours of unpaid work for her troubles. For most, this decision was richly unjust as it’s clear that society’s approach towards illegal drugs and those who use them should be calm, rational and balanced, rather than unreasonable in circumstances such as these. It appears the re-classification has provided anything but this. How can the legislature, in drafting the new legislation, intend to criminalize such justified uses of the drug? Simply, they can’t. It appears that the current re-classification took a narrow, almost ignorant, approach to such societal factors and ultimately became lost in a sea of bad media, and wrongful images the younger generation seemingly portray in modern society.

Cannabis and its social purpose

The Dutch are among the lowest users of cannabis in Europe despite the Netherlands’ well-known tolerance of the drug. According to a regional study, 5.4% of adults in the Netherlands used cannabis, compared with the European average of 6.8%. This comparison is striking, although cannabis is prohibited generally in the Netherlands, there is a policy of tolerance with regard to cannabis in their world famous “coffee-shops”. The 14 coffee-shops in Maastricht attract around 10,000 visitors per day, little more than 3.9 million visitors per year. Of those visitors, 70% are not resident in the Netherlands, with many being of British nationality. These figures represent a large social interest in cannabis throughout Europe, which clearly is going unnoticed. It goes without saying that such a limiting approach to cannabis has its knock-on effects. This large social interest would not just diminish due to legal restrictions on cannabis. Rather, it would encourage the illegal trade in or resale of cannabis, potentially leading to higher prosecution rates ultimately solving nothing in the context of an ever-rising prison population.

Recreational use of cannabis emphasises the agency of a person in seeking pleasure or pain relief by using cannabis, while even young people seemingly understand the choices they make. It simply cannot be assumed all cannabis users will abuse drugs. As society  continually  references drugs, the rising levels of cannabis users seems unlikely to decrease, leaving many young,  and other normally law abiding citizens potentially open to engaging in illegal actions through merely pursuing a social activity.

The potential effects of the current legal classification

Such stringent strategies seem highly inappropriate because most cannabis users are otherwise law-abiding citizens who use cannabis for reasons already established here, with the potential for a net-widening effect in criminalising the people who choose to use it. It would seem the re-classification of cannabis is a political move rather than a medical one upon rejecting the ACMD’s normally sound recommendations. Why establish an independent committee with representatives of doctor’s, the police, and drugs counsellors and then reject their findings? In this respect, it cannot be fair, or accordingly appropriate, for the government to take a headline approach and want to satisfy a particular constituency of public opinion, even though the ‘overwhelming tide of public opinion’ are clearly against the re-classification.

Luke Smith
LLB Law Student University of Hull

R v Clinton [2012] EWCA Crim 2 by Katharine Matheson

This is the first Court of Appeal decision on the new defence of loss of control.

The subject of the conjoined appeals was s55(6)(c), which states that in determining whether a loss of self-control had a qualifying trigger, the fact that a thing done or said constituted sexual infidelity is to be disregarded. Lord Judge stated that this would be the case only where the sexual infidelity was the only possible qualifying trigger. If there was another factor which could be a qualifying trigger, the sexual infidelity could be considered alongside that other factor. He noted that in most cases where there was sexual infidelity it would be easy to find another factor which could be a qualifying trigger. Lord Judge also said that when answering the question in s54(1)(c) – might a person of D‟s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, have reacted in the same or in a similar way to D? – the jury should not exclude any sexual infidelity. The effect of this judgement is largely to nullify s55(6)(c).

The case is also helpful in that it gives some guidance as to the tests for the qualifying triggers. Lord Judge stated that the tests are objective and noted that the requirements „have raised the bar‟ in contrast to the former law of provocation. He referred to the adverbs and adjectives of „serious‟, „extremely‟ and „seriously‟ in s55(3) and s55(4) and noted that Parliament had intended this to be a strict test. It is worth reading this case, not only to increase your understanding of the defence of loss of control, but because it is an exercise in statutory interpretation. 

Katharine Matheson

Senior Lecturer, GDL Induction and Skills Module Leader, LLB ECP and Skills Module Leader

BPP Law School

137 STAMFORD STREET

LONDON 
SE1 9NN
KatharineMatheson@bpp.com

Is working for the Armed Forces really indistinguishable from working in a supermarket?

The Supreme Court has set a dangerous precedent. The deployment of troops into Afghanistan was purely voluntary, the first Gulf war however presented necessitous circumstances, to stop and repulse a naked aggression. Is the Supreme Court seriously suggesting that we should have waited five years to develop the necessary equipment, during which the opposition would have been developing their own countermeasures?

War, by definition is uncertain and therefore regularly fought imperfect equipment. Such rulings put a core area of sovereignty at risk, however given the way politicians have usurped their power in such matters over the last decade this ruling was inevitable. If we are to ask people to put their lives on the line we at least should ensure to a reasonable level that they can defend and care for themselves whilst they are doing it.

Following from this judgement perhaps now, the police should be permanently armed.

Once again our unelected judges show themselves to be a joke. In any event if anyone should be sued over deploying troops with defective equipment it should be War Criminal Tony Blair? Right?