Quayle & Ors v R

A common-law defence of necessity cannot legitimise continuing, unlicensed cultivation, possession, importation or supply of cannabis for alleged medicinal use where that conduct conflicts with a detailed statutory scheme which permits cannabis use only for authorised research.

In any event, duress of circumstances or necessity is narrowly confined. It requires objectively ascertainable extraneous circumstances, an imminent danger of physical injury, and a proportionate response. Serious pain alone is not such injury. A deliberate and regular course of unlawful self-help lacks the necessary imminence and immediacy.

Article 8 did not require an enlargement of the defence. Questions about any change to the statutory control of medicinal cannabis are for Parliament and the Secretary of State.

Five defendants appealed convictions, following guilty pleas after adverse rulings or a jury conviction, for offences involving the cultivation, production or importation of cannabis. They claimed that cannabis was necessary to relieve their own pain or the pain of seriously ill people supplied through a clinic.

An Attorney-General’s reference followed the acquittal of Mr Ditchfield on charges of possessing cannabis and cannabis resin with intent to supply. He said that he intended to supply it without charge to people with serious medical conditions.

The common issue was whether medical necessity could provide a defence to offences under the Misuse of Drugs Act 1971 where cannabis was used, cultivated, imported or supplied outside the statutory licensing and research regime.

1. All five appeals were dismissed. The Attorney-General’s question was answered in the negative. None of the defendants had facts capable in law of founding a defence of necessity.

2. The detailed scheme in the Misuse of Drugs Act 1971 and the Misuse of Drugs Regulations 2001 controlled the categorisation, production, importation, possession, supply, prescription and use of controlled drugs. Cannabis and cannabis resin could be used only for authorised research. The proposed defence would allow individuals to prescribe cannabis to themselves or act as unqualified medical practitioners for others. That would contradict the scheme and create an uncontrolled parallel market. Any alteration was for Parliament and the Secretary of State, not a jury weighing individual hardship against the statutory policy.

3. The court accepted that duress by threats and necessity by extraneous circumstances may in an appropriate case be available in relation to drugs offences. But, following the confined approach in Hasan [2005] UKHL 22, necessity requires objectively assessable extraneous circumstances. The fear or peril must be capable of scrutiny by judge and jury. A defence based on a defendant’s own pain, thought processes or vulnerability would introduce an impermissibly subjective and difficult-to-test licence to commit crime.

4. The defence is confined to an imminent danger of physical injury. Severe pain, including chronic pain not directly associated with a current physical injury, does not satisfy that threshold. The evidence did not establish an imminent risk of serious physical or psychological injury from pain or from lawful alternative medication.

5. Imminence and immediacy independently defeated the cases involving continuing or regular conduct. Taylor, Lee and Ditchfield deliberately pursued a course of importation or intended supply over time; they were not immediate sufferers and could reflect and desist. Similar considerations applied to the personal cultivation and use cases.

6. Article 8 of the European Convention did not justify extending the common law defence. No properly constituted incompatibility issue had been raised, and the court was not justified on the material available in finding the current legislative policy incompatible with the Convention.

• Court of Appeal (Criminal Division): Dismissed the five appeals against conviction and answered the Attorney-General’s reference in the negative.
• Crown Courts: Quayle, Taylor and Lee pleaded guilty after judges ruled that necessity was unavailable; Kenny’s judge withdrew the proposed defence after evidence; Wales was convicted after necessity was left to the jury. Ditchfield was acquitted after the Recorder left necessity to the jury, prompting the Attorney-General’s reference.