Altham v R.

Article 3 is not engaged merely because a person suffers severe symptoms from an illness or injury unconnected with state action, and believes that a prohibited drug is the only effective relief. The state must be responsible for the relevant ill-treatment, including by exacerbating the condition through measures for which it is responsible. Article 3 does not require the state to permit a breach of the criminal law to alleviate such a condition. An individualised medical-necessity defence to possession of cannabis would conflict with the legislative scheme of the Misuse of Drugs Act 1971.

The appellant pleaded guilty in the Crown Court at Preston to possessing 5.76 grams of cannabis resin, contrary to section 5(2) of the Misuse of Drugs Act 1971. He had chronic pain following serious injuries in a road traffic accident and contended that cannabis relieved that pain when other treatments had been ineffective or caused adverse effects.

The trial judge ruled that necessity, or duress of circumstances, should not be left to the jury. The appellant then pleaded guilty and received an absolute discharge. On appeal, he accepted that domestic-law and Article 8 arguments were foreclosed by R v Quayle and others [2005] EWCA Crim 1415. The sole issue was whether Article 3 of the European Convention on Human Rights entitled him to advance a defence of medical necessity.

1. Appeal dismissed. Article 3 was of no assistance in advancing a defence of necessity to possession of a controlled drug under the Misuse of Drugs Act 1971. The trial judge was correct not to leave that defence to the jury.

2. Article 3 primarily prohibits the state from inflicting inhuman or degrading treatment. It may require positive action where a state measure would otherwise amount to such treatment. The essential question is whether the state is properly responsible for the harm inflicted or threatened. The court drew this approach from R v Secretary of State for the Home Department ex parte Adam and others [2005] UKHL 66 and Pretty v United Kingdom 35 EHRR 1.

3. The appellant's pain arose from a road accident, not from any act or omission of the state. The state had not exacerbated his condition. His decision to use cannabis, and the criminal prohibition on its possession, did not amount to treatment by the state for Article 3 purposes. Article 3 therefore neither required the state to alleviate his condition nor required recognition of a defence permitting unlawful possession.

4. The statutory regime also weighed against the proposed defence. As explained in R v Quayle and others [2005] EWCA Crim 1415, it provides for controlled drugs to be available through authorised medical channels but permits a general prohibition where the public interest so requires. The court held that the same reasoning applied to the Article 3 argument. An individual defence based on perceived personal medical benefit would conflict with the purpose and effect of that scheme.

5. Ireland v the United Kingdom 2 EHRR 25 and D v United Kingdom (1997) 24 EHRR, 423 concerned suffering in the context of state treatment or a state removal measure. They did not assist the appellant. The first-instance reasoning in R (Burke) v General Medical Council [2005] QB 424 likewise provided no support, particularly in light of its reversal on appeal.

• Court of Appeal (Criminal Division) — In [2006] EWCA Crim 7, dismissed the appeal against conviction and upheld the ruling that necessity should not be left to the jury.
• Crown Court at Preston — Judge Cornwall ruled that necessity, or duress of circumstances, was unavailable on the undisputed facts. The appellant then pleaded guilty and received an absolute discharge.