Medical Necessity (Duress of Circumstance)
in UK Law
In June
1998 I acted as a witness for Mr Colin Davies at Manchester
Crown Court who used cannabis to combat pain and muscle
spasm arising from a spinal injury. In summing up,
Woodward J held that there were three elements to
the offence of cannabis cultivation:
(1) Is the substance cannabis?
(2) Did the defendant cultivate it?
(3) Did s/he do so unlawfully.
In respect
of the third element, Woodward held that the defence
of necessity involved the following elements, and
that the burden of proof is on the prosecution to
demonstrate that circumstances of necessity do not
exist:
(1) Do the circumstances giving rise to necessity
exist as stated, i.e. the offence was necessary to
avoid ‘death or serious injury’
(2) Was the offence committed for that reason –
namely in order to prevent that death or serious injury
(3) Was the ‘evil’ of the offence proportionate
to the ‘evil’ of what was being avoided
or prevented - there must be reasonableness and proportionality
In July 1999 I was involved in a second trial of Mr
Davies , who was again aquitted of cannabis possession
and supply charges to individuals with severe medical
conditions. I have been instructed in many subsequent
cases where medicinal cannabis users, with conditions
including MS and chronic back pain have used the common
law defence of necessity (duress of circumstances)
to avoid conviction .
In the case of Lockwood, at first instance McCallum
J held on the question of serious injury: “...
serious injury doesn’t necessarily mean just
simply wounds found upon them, or something physical
about the person. Serious injury can, of course, be
mental as well, sometimes even more serious than the
external damage one sees.” As to the burden of
proof he held “It is for the prosecution to satisfy
you so you are sure that necessity, as I have just
defined it to you, is not a possibility in this case...
If you are sure that necessity played no part in this
until after the interview then he is guilty”
At the Court of Appeal Mitchell J held (obiter) “The
applicant also complains about the summing up, and
in particular the judge’s directions upon the
defence of necessity. In our judgement, his directions
were both clear and correct”
I have given evidence as to the effects of cannabis,
and of other drugs, before the courts on many occasions
(including instructions by the Crown), and my testimony
has been accepted in trials throughout the UK. When
the Court of Appeal considered the case of Lockwood
my evidence was not criticised, and the trial judge’s
directions were upheld as ‘clear and correct’.
In the summing up in Lockwood at first instance McCallum
J directed the Jury as to my evidence thus:
“A word about Mr Atha’s evidence. He has
been called as an expert and as an expert he is a
person who in the ordinary course of events would
normally have a greater in-depth knowledge of the
subject than you ordinary members of the jury just
called from the streets.”
“When cross examined, he (Mr Atha) conceded that
he was not a qualified doctor. He had not examined
the accused and therefore could not actually say what
the effect of that particular drug would have on this
particular accused, and he was not qualified to assess
his medical needs and he does not prescribe drugs.
He was there simply to tell you what his researches
over the years had told him that cannabis did, relying
on anecdotal evidence and also such clinical tests
as had been carried out, and he relied, you will remember,
on a number of medical reports. “
“As an Expert Witness, members of the Jury, you
are entitled to take into account absolutely everything
he says. You are also entitled to reject any part
of his evidence which does no accord with you... It
is not, of course, for the expert to decide whether
or not the defence of medical necessity arises. That
is solely your purpose...”
It is for the jury to decide whether the duress of
circumstances exists - whether the claimed conditions
exist, whether any of these amount to ‘serious
injury’, and whether using cannabis as a treatment
for such a condition is justifiable - based on all
the individual circumstances of each case. Where a
defence of ‘duress of circumstance’ is raised,
the burden is on the Crown to disprove the defence.
In view of the duty of the Crown Prosecution Service
to consider the questions of likelihood of conviction
(51%) and whether a prosecution is in the public interest.
It appears questionable whether prosecutions in ‘possession’
cases involving a demonstrable medical need meet either
criterion, or even supply to a medicinal user (e.g.
by a carer), although where supply offences involve
disribution to recreational users, medicinal use by
the supplier offers no defence .
In May 2005 the Court of Appeal considered appeals
against conviction by five appellants (Quayle, Wales,
Kenny, Taylor and Lee) , and a cross appeal by the
Attorney General against the judges direction in a
case (Ditchfield) where the defendant was acquitted
on the basis of medical necessity.
(a) After reviewing the facts of each case, submissions
on the parts of the appellants and Crown, and the
legal authorities, the court distinguished Lockwood
and criticised the trial judges’ subsequent directions
in Ditchfield stating “In our view, that was
to put too much weight on a slight foundation. The
question whether it was appropriate to leave any issue
of necessity to the jury at all was never argued or
before the court in Lockwood.”
(b) They approved the decision in Brown “In this
case the choice facing the applicant was not severe
pain without cannabis or absence of pain with cannabis,
rather it was absence of pain with adverse side effects
without cannabis, and, on his account, absence of
pain with minimal side effects with cannabis. The
difference is restricted to the adverse side effects
which, however unpleasant, could not sensibly be said
to raise a prime facie possibility of serious injury,
let alone one such as would overwhelm the will of
the defendant. Quite apart from this point, there
has to be material from which a jury could come to
a conclusion that they were not sure from an objective
stand point that the applicant was not acting reasonably
and proportionately. The evidence makes it clear that
it was possible for the applicant to control pain
by conventional and legal means. These arguments are
sufficient to demonstrate that the learned judge was
correct to conclude that the evidence, even at its
highest, was not sufficient to raise a defence to
be left to the jury.”
(c) The Court noted “The necessitous medical
use on an individual basis which is at the root of
the defences suggested by all the appellants and Mr
Ditchfield is in conflict with the purpose and effect
of the legislative scheme. First, no such use is permitted
under the present legislation, even on doctor's prescription,
except in the context of the ongoing trials for medical
research purposes. Secondly, the defences involve
the proposition that it is lawful for unqualified
individuals to prescribe cannabis to themselves as
patients or to assume the role of unqualified doctors
by obtaining it and prescribing and supplying it to
other individual "patients". This is contrary
not only to the legislative scheme, but also to any
recommendation for its change made by the Select Committee
and Runciman Reports. Further, it would involve obvious
risks for the integrity and the prospects of any coherent
enforcement of the legislative scheme. A parallel
but lawful market in the importation, cultivation,
prescription, supply, possession and use of cannabis
would have to come into existence, which would not
only be subject to no medical safeguards or constraints,
but the scope and legitimacy of which would in all
likelihood be extremely difficult to ascertain or
control.” and added “We are concerned with
sufferers whose conduct contravenes the legislative
policy and scheme on a continuing and regular basis,
but who maintain nonetheless that this is excusable.”
(d) Re Human Rights Act implications, the court held
at para 67 “The legislative policy and scheme
are clear. We have accepted that this does not mean
that a common law defence of duress by threats or
necessity by extraneous circumstances can never have
a place... But its role cannot be to legitimise conduct
contrary to the clear legislative policy and scheme,
as would in our view be the effect of the defences
suggested in the appeals and reference before ...
We see no basis in art 8 for altering our conclusions
regarding the scope and the inapplicability of the
common law defence of necessity by extraneous circumstances
in the context of the present appeals and reference.”
Para 68 “The issues which would be involved in
considering the compatibility with the Convention
of the United Kingdom's drug legislation if there
is no relevant common law defence of necessity are
not straightforward. Interference with the right to
respect for private life is permissible under art
8(2) if "in accordance with the law and . . ..
necessary in a democratic society . . ... for the
prevention of disorder or crime, for the protection
of health or morals, or the protection of the rights
and freedoms of others". Within the limits indicated
in Taylor (Joseph) v Lancashire County Council [2005]
EWCA Civ 284, the court's decision would involve an
evaluation of the medical and scientific evidence,
a weighing of the competing arguments for and against
the immediate change recommended by the Select Committee
and the Runciman Committee, a greater understanding
of the nature and progress of the tests of cannabis
which have taken and are taking place, and a recognition
that, in certain matters of social, medical and legislative
policy, the elected government of the day and Parliament
are entitled to form overall policy views about what
is best not just for particular individuals, but for
the country as a whole, in relation to which the courts
should be cautious before disagreeing.” Para
69 “On the material before us, so far as it is
appropriate for us to express any view, we would not
feel justified in concluding that the present legislative
policy and scheme conflict with the Convention. That
is so, even if there is no common law defence of medical
necessity such as that for which the appellants and
Mr Ditchfield contend. We would not feel justified
in concluding that either Parliament or the Secretary
of State has acted inappropriately or delayed unduly
in maintaining the present general policy and scheme
up to the present date pending the outcome of and
decisions on the basis of tests which are, we are
told, still on-going.”
(e) At Para 75, the court held that threats of serious
injury must have an extraneous cause: “On the
authorities..., the requirement of an objectively
ascertainable extraneous cause has a considerable,
and in our view understandable, basis. It rests on
the pragmatic consideration that the defence of necessity,
which the Crown would carry the onus to disprove,
must be confined within narrowly defined limits or
it will become an opportunity for almost untriable
and certainly peculiarly difficult issues, not to
mention abusive defences. On that basis, we consider
that the Crown's first narrow point, namely that,
for the defence of necessity of circumstances to be
potentially available, there must be extraneous circumstances
capable of objective scrutiny by judge and jury, is
valid.”
(f) At paras 77-78 the court ruled on the issue of
pain: “There is, on any view, a large element
of subjectivity in the assessment of pain not directly
associated with some current physical injury. The
legal defences of duress by threats and necessity
by circumstances should in our view be confined to
cases where there is an imminent danger of physical
injury.” (78) “In the case of Wales, the
judge is criticised for failing to explain that serious
pain could amount to serious injury because of its
psychological consequences, but there does not appear
to have been any evidence which could have justified
such a case. Mr Wales did describe the pain he suffered
as "life-threatening" and the judge reminded
the jury of this, although it does not appear to have
been Mr Wales's case that there was an actual risk
of suicide. His case on the facts was that cannabis
helped him cope with the pain, without side effects,
while the prescribed medicines had side-effects (stopping
him eating) and, on the expert evidence that he called,
also involved medical risks such as a general risk
of peritonitis. We do not see in the evidence any
basis on which a jury could be asked to conclude that
Mr Wales faced any imminent risk of serious injury
sufficient to justify him taking cannabis on a regular
basis.”
(g) Threats must be imminent and immediate (para 79):
“The requirements of imminence and immediacy
mean, in any event, in our view that the judge was
right to refuse to leave any defence of necessity
to the jury in Taylor and Lee, and that the defence
should not have been left to the jury in Ditchfield.
In each of these three cases, the defendant was taking
a deliberately considered course of conduct over a
substantial period of time, involving continuous or
regular breaches of the law. In each case, the defendant
was not the immediate sufferer and had every opportunity
to reflect and to desist. The compassionate grounds
which may well have motivated Mr Taylor and Ms Lee
and which the jury evidently accepted did motivate
Mr Ditchfield cannot avoid the fact that they deliberately
chose to act contrary to the law on a continuous basis.”
(h) The court held against the principle of medical
necessity (paras 80-81) “the underlying theme,
that a continuous and deliberate course of otherwise
unlawful self-help is unlikely to give rise to the
defence has itself, in our view, continuing relevance...
Where there is no imminent or immediate threat or
peril, but only a general assertion of an internal
motivation to engage in prohibited activities in order
to prevent or alleviate pain, it is also difficult
to identify any extraneous or objective factors by
reference to which a jury could be expected to measure
whether the motivation was such as to override the
defendant's will or to force him to act as he did.
If the response is that the defendant was not forced,
but chose to act as he did, then the [above] considerations
.... apply.”
(i) The court concluded: “...none of the defendants
in any of the cases before us was in our view able
to rely at trial on any facts which could at common
law give him or her any defence of necessity.”
Following the above decision, the scope of the medical
necessity defence has been tightened to the extent
that relief of chronic symptoms, such as pain, fall
outwith the defence, however acute symptoms such as
epilepsy might fall within the scope should use of
cannabis (or other controlled drug) prevent, or arrest
an attack or the onset of an attack. The decision
of the Court of Appeal in Quayle and others is subject
to appeal to the House of Lords and possibly beyond,
and the judgement is unlikely therefore to represent
the final settled state of the law on this matter.
M.J.Atha Oct 2005
