We were contacted by our client who had been asked by the police to attend at Aberystwyth Police Station following the execution of a warrant at his address under the Misuse of Drugs Act, whereby they had recovered a small quantity of cannabis.

We duly attended with our client at the police station on 28^th November 2011.  Having obtained disclosure from the police it was clear that they did not have a copy of the warrant (issued by the Magistrates) with them when they executed the search at his address and it had only been produced at a later date.  We therefore advised our client during interview to make a short prepared statement setting this out and neither accepting nor denying whether the drugs found belonged to him.  Following interview, he was charged with possession of cannabis and bailed to attend Aberystwyth Magistrates’ Court on the 21^st December 2011.

At Aberystwyth Magistrates’ Court on the 21^st December 2011 representations were made to the prosecution regarding this case and that the evidence obtained should be excluded under the PACE codes of conduct due to the deficiencies with the warrant.  Having considered the position and taken advice from his superior, the CPS lawyer decided to withdraw the proceedings and our client was released from court.

This case highlights the importance of having a solicitor with you at the police station to obtain full disclosure from the police regarding the evidence held and then to give you the appropriate legal advice before answering questions during interview.  Had client been in attendance without a solicitor, it is likely that he would have answered all police questions which may have led to an admission of guilt which could have been used against him to prove the case at court and led to a criminal conviction.

The evidence against our client was very thin from the start, and he consistently denied any involvement in the conspiracy. The prosecution showed that  his fingerprint was  found at one of the three alleged locations. There were text messages which the prosecution interpreted as suspicious, and police observations had recorded sightings of a vehicle owned by an old acquaintance of our client on a main road near one of the alleged locations.

Our client set out in his defence statement to the court his innocent explanation for his fingerprint being found, and for the text messages.

The case was listed for a Plea and Case Management hearing on 21st May. On 14th May 2010 however,  the defence for two of the defendants including our client made applications to the Crown Court judge for dismissal. Our case was that there was no evidence implicating our client in the conspiracy, and following detailed submissions the case against him was discharged.

He was charged with production of over 500 cannabis plants, and taken to Carmarthen Magistrates Court on 23rd December where he pleaded guilty. The Magistrates sentenced him to a three month Referral Order and expressed their concern that there was no agency to refer him to for assistance and accommodation.

However, he did receive immediate compassionate assistance albeit not from any official agency, and so was not put out onto the streets just before Christmas with nowhere to go.

We represented the two defendants, who were the only persons charged following a raid of a large building in the Ammanford area, where hundreds of cannabis plants were growing. On their arrest on January 29th 2009 they were both inside the building amongst the plants. To the police it must have seemed like they could not have been caught more red-handed.

However, when interviewed they explained to the Police that they had been told by a friend in London of the existence of the cannabis factory, and they had come down that very day planning to steal some of the cannabis. They explained that they had entered through a back door which was open, and had only been in the premises about five minutes when the police entered and arrested them. We advised them that on their instructions they were not guilty of production, or cultivation, of cannabis, but were guilty of entering the property as trespassers, with intent to steal – in other words, guilty of burglary.

Both defendants were charged with production of cannabis, and the prosecution said there were over 1500 plants recovered with a  potential value when harvested  in the region of £740,000 – £900,000 at street values. Had they been found guilty of this they would have been likely to receive lengthy custodial sentences.

The defendants both pleaded not guilty, the magistrates declined jurisdiction and the case was adjourned to be committed to the Crown Court, the defendants both being remanded in custody. At the next hearing, the prosecution offered no evidence on the charge of production and the  defendants entered guilty pleas to burglary and they received sentences which allowed for their immediate release from custody.

Please see link to BBC website article: http://news.bbc.co.uk/1/hi/wales/south_west/7867421.stm ]]> http://www.mjreedsolicitors.co.uk/news/cannabis-cases/cannabis-farmers-or-burglars/feed/ 0 http://www.mjreedsolicitors.co.uk/news/cannabis-cases/cannabis-reclassification-to-class-b/ http://www.mjreedsolicitors.co.uk/news/cannabis-cases/cannabis-reclassification-to-class-b/#comments Sat, 31 Jan 2009 22:01:27 +0000 celia http://www.mjreedsolicitors.co.uk/wordpress/wordpress/?p=204 Reclassification

Having reclassified cannabis in January 2004 from a Class B to a Class C drug, cannabis was further reclassified back to a Class B drug five years later on 26th January 2009.
One of the aims when cannabis was put into a lower classification in 2004 was to free up police time to deal with more serious offences of supply of hard drugs.

However, in the four years following reclassification, the use of the stronger varieties of skunk cannabis became much more prevalent, until seizures of cannabis related, in 80% of cases, to skunk. There was also emerging evidence of a link between excessive cannabis use and some forms of mental illness. The Home Office thus decided to reclassify cannabis to a Class B drug on 26th January 2009.

Defences

There are a number of defences one might wish to rely upon in respect of cannabis cases. The defence that is relevant will depend entirely on the facts of each particular case although ultimately it is a matter of knowledge and control.

The defence of “lack of knowledge” is available in certain circumstances if the accused can prove that he neither knew, suspected nor could have been reasonably expected to know that the substance in his possession was a controlled drug. For example, being in possession of what one believes to be a normal household pot plant, which in fact is a cannabis plant.

Control is also an important factor. If a person can’t be said to be in control of the drug, they cannot be in possession of it. For example, where two men are arrested travelling in a car containing a large amount of cannabis in the boot, the Crown would have to prove not just that each man knew that the cannabis was in the boot, but also that each man had control over the drugs in the car.

The defence of “duress” is available in respect of drug offences and arises when pressure is placed upon another person, whether from threats or violence from another, in order to elicit a particular action from him. The defence is only available if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid the threat of death or serious injury. An obvious example of when the defence would be accepted was provided in the case of R. –v- Quayle “If A forced B at gunpoint to take into his possession cannabis or to smoke a cannabis joint there would be no offence.”

The issue of duress is left to the jury to determine.

Use of cannabis for medical purposes

The defence of necessity used to be commonly run in cannabis cases where the defendant was relying on cannabis to treat his/her serious pain or chronic condition, whatever it may be, and felt forced to resort to cannabis in order to alleviate their serious pain or simply to survive on a day-to-day basis with whatever condition they were suffering. Such a defence has been successfully run for many years in the Crown Courts and it was successfully run at Carmarthen Magistrates’ Court in October 2004 in the case of R. –v- Brad Stephens. However, the recent Court of Appeal case of R. –v- Quayle confirmed that such a defence is not available. In that case, Mr. Quayle was charged with cultivating cannabis and his defence was that he was acting reasonably and proportionately in using cannabis to avoid serious injury caused by the symptoms of chronic medical conditions. The Court of Appeal held that the defence of necessity was not available in these circumstances.

The cultivation and use of cannabis for medical reasons, e.g. pain relief, whilst not providing a defence since the case of Quayle, will still provide the defendant with significant mitigation. It is useful to obtain medical reports to substantiate the medical condition. The Court of Appeal in Quayle made it clear that the criminal justice system must be sympathetic towards the medical use of cannabis. It is important to tell the court that the defendant is not flouting the law simply for their own benefit but that they are trying to avoid the consequences of either the chronic condition they are suffering from or to avoid the very serious side effects that some legally prescribed drugs can have.

In this case Neil Morgan was charged with possession of 14g of herbal cannabis and cultivation of one cannabis plant which at the time of his arrest was just a cannabis stalk in a flower pot. Neil pleaded not guilty and elected for trial at the Crown Court and the trial took place on 24/09/01. Neil argued that the indictment should be stayed as an abuse of process as in the circumstances of his case, criminal proceedings could not be justified under Article 8(2) of the Human Rights Act 1998 (the right to respect for ones private life). The main thrust of Neil’s case was that his prosecution, restriction of liberty, appearance before the court and conviction was a disproportionate application of the criminal law and an infringement of his private life. With a conviction would come an adverse effect on his career and job prospects and his prospects of travelling abroad.
It was submitted that the smoking of cannabis in the privacy of a persons home comes within the sphere of private life as encompassed by article 8.
After very lengthy legal arguments in the Crown Court the learned judge ruled that article 8 of the Human Rights Act was not engaged at all and alternatively the prosecution was not disproportionate in any event.