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.
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.