Stratton, R (on the application of) v Waltham Forest Magistrates Court

A criminal prosecution founded on primary legislation and the statutory Order in Council procedure cannot ordinarily be challenged by inviting magistrates to decline jurisdiction because the claimant disputes the Government’s drug-classification policy. A policy disagreement about the relative regulation of cannabis, alcohol and tobacco does not, without more, establish irrationality, unlawful discrimination or incompatibility with Convention rights. Magistrates have no jurisdiction to declare the relevant legislation incompatible with human rights. Where the prosecution itself is not alleged to be unconscionable or procedurally improper, such a challenge is unarguable.

Edwin Stratton sought permission to judicially review the decision of Waltham Forest Magistrates Court on 9 October 2008 to require him to stand trial for an alleged offence under section 4 of the Misuse of Drugs Act 1971 concerning the production of cannabis.

Before the magistrates, he argued that the prosecution was an abuse of process and obtained an adjournment to seek judicial review. His challenge concerned the statutory classification of cannabis, and the exclusion of alcohol and tobacco from the statutory controls. He alleged irrationality, unlawful discrimination, apparent bias, fettering of discretion and breaches of Convention rights. The central issue was whether those policy and human-rights arguments could justify preventing the criminal proceedings from continuing.

1. Permission refused. The challenge to the magistrates’ decision was unarguable.
2. The statutory scheme establishes controlled drugs and their classification through sections 1 and 2 of the Misuse of Drugs Act 1971. Changes to Schedule 2 require consultation with or a recommendation from the Advisory Council, approval by resolution of each House of Parliament, and an Order in Council. The offence under section 4 concerns production of a controlled drug as defined by that scheme.
3. The court recognised that the relative harms and regulation of cannabis, alcohol and tobacco involve a complex policy debate informed by scientific, social, historical and cultural considerations. The existence of competing views, including views expressed by the Advisory Council and the Government, did not make the issue justiciable or demonstrate irrationality.
4. The claimant’s case did not challenge the individual prosecution as unconscionable or procedurally improper. Instead, it sought to have the magistrates decline jurisdiction because he disagreed with the policy implemented through primary and subordinate legislation. That was not a proper basis for staying the prosecution.
5. The magistrates had no jurisdiction to declare the legislation incompatible with human rights. The arguments advanced did not begin to establish incompatibility or show that the decision to prosecute was contrary to Convention rights. They articulated a policy preference for a different governmental approach, which was not the business of the court to determine.

Lord Justice Leveson agreed with Mr Justice Wilkie’s judgment. The claimant was directed to return to the magistrates and raise any available arguments in the criminal proceedings.

The judgment describes the Waltham Forest Magistrates Court decision of 9 October 2008, which required the claimant to stand trial and adjourned the proceedings to permit an application for judicial review. The Administrative Court refused permission to challenge that decision.