Every 'criminal' should be a legal expert on every law they break.
Here is my experience (and views)
on the ‘defence of necessity, please note: this is not legal advice, merely the
views and interpretations of someone who has been through the process on more than
one occasion and it is very likely I will have to do it all again.
The defence of necessity is well
established in English criminal law, in essence, it is available when a
defendant is arguing that it was necessary for them to commit a crime.
In 1883, Sir James Stephen’s Digest of Law identified three requirements for the defence:
- (i) the act is needed to avoid inevitable and irreparable evil.
- (ii) no more should be done than is reasonably necessary for the purpose to be achieved.
- (iii) the evil inflicted must not be disproportionate to the evil avoided.
The above was cited in R v A
(2001) Brooke LJ. In R v Martin [1989] Simon Brown J. summarised the
principles of “duress of circumstances”
“The principles may be summarised thus:
First, English law does, in extreme circumstances, recognise a defence of necessity.Most commonly this defence arises
as duress, that is pressure upon the accused's will from the wrongful threats
or violence of another. Equally however it can arise from other objective
dangers threatening the accused or others. Arising thus it is conveniently
called "duress of circumstances".
Secondly, the defence is
available only if, from an objective standpoint, the accused can be said to be
acting reasonably and proportionately in order to avoid a threat of death or
serious injury.
Third, assuming the defence to be
open to the accused on his account of the facts, the issue should be left to
the jury, who should be directed to determine these two questions: first, was
the accused, or may he have been impelled to act as he did because as a result
of what he reasonably believed to be the situation he had good cause to fear
that otherwise death or serious physical injury would result? Second, if so,
may a sober person of reasonable firmness, sharing the characteristics of the
accused, have responded to that situation by acting as the accused acted, if
the answer to both those questions was yes, then the jury would acquit: the
defence of necessity would have been established.”
“Duress” most commonly arises
when there is “pressure upon the accused's will from the wrongful threats or
violence of another”.
This is not (generally) the case
if I supply cannabis oil to a terminal cancer sufferer, however it could be
applicable in Ellie’s (not her real name) case.
Ellie is a 13-year-old girl who
suffers from Trigeminal Neuralgia (TN), which is described by the medical
profession as "the most pain a human being can experience" it is also
historically known as the "suicide disease" mainly due to the studies
by Dr Harvey Cushing which demonstrated 0.6% mortality involving 123 cases of
TN during 1896 and 1912.
Ellie’s mother contacted me a
year ago regarding her daughter’s TN, describing how Ellie’s attacks could go
on for days at a time it was obvious to me that this mother was at the ‘end of
her tether’. Ellie had threatened suicide on a number of occasions and as the
attacks were intensifying her mother was concerned over her daughter’s mental
state.
Ellie was prescribed opiates for
analgesia, in the main morphine, however her prescribed medications were
ineffective in providing relief. I was asked to provide cannabis by Ellie’s
mother as she had spoken to a mother in Colorado who had used cannabis with
great success in treating her daughter’s TN. Ellie’s mother had attempted to
obtain the cannabis spray Sativex in the UK, however Ellie’s pain consultant
advised that he could not prescribe it to her as it was “only available for
adults with MS”.
I arranged for a 1:1, 5% tincture
of CBD and THC, (the same cannabinoid profile as Sativex) to be delivered and
since Ellie has had access to this tincture she hasn't had a full attack, she
reports that if she administers the tincture sublingually (i.e. under the
tongue) at the first indications her pain subsides and does not develop into a
full TN episode.
Ellie’s Mother reports:
“Two drops every 20 minutes until
the pain goes. Usually I only have to give her one dose, it’s amazing!
Yesterday though it was a more serious attack and it took a few more doses
until the pain was completely gone, then it came back in the evening, but again,
one dose and it was gone. It's helping her so, so much, it's giving her a
quality of life she didn't have before”
In my opinion, a case such as this is a case of "duress" as identified in R v Martin
BTW~ Now Ellie’s fear of a TN attack has been replaced by a fear that her mum will go to prison for administering it to her.
“Duress of circumstances” as
clarified by Simon Brown J. (above) “can arise from other objective
dangers threatening the accused or others” which (imo) is applicable in
supplying cannabis oil to a terminal cancer sufferer.
In such a case, are the legal standards met for the use of this defence?
(i) the act is needed to avoid inevitable and irreparable evil
(ii) no more should be done than is reasonably necessary for the purpose to be achieved
(iii) the evil inflicted must not be disproportionate to the evil avoided.
In (i), by supplying cannabis oil
to a terminal cancer sufferer the supplier is doing so in an effort to avoid
the “death” of the person. In (ii), in treating cancer there is a ‘requirement’
for cannabis oil for life, it could be argued that it is ‘reasonable’ to supply
cannabis oil on an ongoing, continuing basis
In (iii), by avoiding death, the
cultivation of cannabis plants, the oil making process and the supply are all
‘lesser evils’ than the death of the cancer sufferer.
The defences of “necessity” and
“duress” have some factors in common and they also seem to have been used
interchangeably by the judiciary: ref– (M.V Clarkson, H.M.Keating and
S.R.Cunningham , Clarkson and Keating Criminal Law , Chapter V ( 7th edn,Sweet
& Maxwell, 2010) pg 357).
Why my interest in the defence of
necessity? In 2004, I successfully used the defense of necessity when I was
tried at Chester Crown court on charges of ‘intent to supply’ cannabis to a
sufferer of Multiple Sclerosis.
Video of my arrest Here
My first Crown Court trial resulted from my arrest on 6th September, 2003.
Details of my arrest:
ii) On 6th September 2003 Mr
Ditchfield's car was searched by police, and a spectacles case was recovered
from its glove compartment, which was found to contain two plastic bags, one of
which contained 6.8 gms of cannabis, the other of which contained 6.88 gms of
cannabis resin. In interview Mr Ditchfield said that he was a campaigner who
thought that sick people should have the right to use cannabis medicinally, and
that, if a sick person with a genuine medical need (such as a sufferer from MS)
asked him for cannabis, he would give it to him free.
The cannabis in his spectacles
case was, he said, of medicinal quality, and was not for his personal use but
for supply to anyone with a medical requirement who might need it to relieve
their suffering. He said that most of the sick people he knew suffered from
terrible diseases, and, although they were prescribed medication, it was
cannabis that gave them relief.
Mr Ditchfield was charged with
two counts of possession of a controlled drug of Class B with intent to supply
contrary to s.5(3) of the Misuse of Drugs Act 1971, and two corresponding
alternative counts of simple possession of such drug contrary to s.5(2)"
At Chester Crown court I
successfully argued that I should be permitted to use the defense of
“necessity”. The judge left the defence to the jury, directing them that mental
injury can be as serious as physical injury, and leaving them to consider
"whether serious injury included the alleviation of symptoms of a dreadful
illness like MS".
The jury entered verdicts of not
guilty on all counts.
Video Here
Subsequently, the Attorney General referred my case to the Court of Appeal on a question of law.
vi) The
Attorney General now seeks the opinion of this Court on the following question
of law:
"May the defence of
necessity be available to a defendant in respect of an offence of possession of
cannabis or cannabis resin with intent to supply, contrary to section 5(3) of
the Misuse of Drugs Act 1971, if his case is that he was in possession of the
controlled drug intending to supply it to another for the purpose of
alleviating pain arising from a pre-existing illness such as multiple sclerosis?"
The appeal process took over two
years and during this time I was on bail yet again for further cannabis
offences, it was obvious that the CPS did not want to proceed against me until
they had removed the defense of necessity for cannabis cases.
In their ruling the learned
Judges came to this conclusion:
"The judges in Wales and
in the Attorney General's Reference in Ditchfield were wrong to leave the
defence of necessity to the jury. In the case of Wales, the jury anyway convicted,
but in the case of Ditchfield the jury acquitted."
It follows that all the appeals
will be dismissed, and the question of law on which this court's opinion is
sought by the Attorney General in the reference will be answered in the
negative."
The Judges explained how they
reached their conclusion in their ruling, they clarified that the defense of
necessity can, in effect only be used to: “Avoid serious injury or death”
The Judges went on to rule that severe
pain could not be equated with “the with the avoidance of serious injury” and
they dismissed the danger of a person committing suicide due to pain as “too
remote”.
So why do I think I have the defense of “necessity” back?
The Judges clarified the use of the “necessity” defense:
Here are the detailed requirements of any defence of necessity
72. Extraneous circumstances.
Lord Bingham spoke in Hasan of the need for "a just and well-founded
fear", while accepting that threats of death or serious injury will
suffice.
By the Judge’s ruling, pain
cannot create a well-founded fear that it will lead to serious injury or
death.
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.
Therefore “necessity” cannot be
used as a defence in court against charges of cultivation, production or
supplying cannabis to alleviate a person's pain or suffering.
If I cultivate, produce cannabis
oil and supply it to an MS sufferer then I cannot use the defense of necessity,
however, as explained above, I believe it can be used as a defense if I commit
the same offences in regard to a terminal cancer sufferer.
79. Imminence and immediacy. We
consider that these requirements represent another reason why, even at the
detailed level, it is difficult to accept that there could be any successful
defence of necessity in the cases of Quayle, Wales and Kenny. Their defences
amount to saying that it is open to defendants on a continuous basis to plan
for and justify breaches of the law. However, we need not express a view
whether that would have alone justified a judge in refusing to leave their
defences to a jury. 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.
This is where it gets
interesting: Another test of the defense is ‘imminence and immediacy’ I would
argue that in the case of a terminal cancer sufferer who has been informed that
there is no further treatment available and that they they only have 6 to 12
months to live passes this test.
81. The point made in paragraphs
79-80 may also be viewed in another way. 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.
A Jury will understand me being motivated by a request from a parent of a dying or a seriously ill child, I can guarantee they will understand, if I cannot make them understand then that will be my failing, not theirs.
I also take issue with this point:
“they deliberately chose to act contrary to the law on a continuous basis”
Deliberate? all my decisions to
break the law have been forced upon me by the law itself, the Home Office is
responsible for cannabis being in schedule 1 of the MDA 1971, and this denies
clinicians in the UK the power to prescribe cannabis oil even to terminal
cancer patients. If Doctors could prescribe preparations of 1:1 THC:CBD oil I
would not be compelled to commit the acts I do.
In June this year I seriously
considered walking into a UK police station with 1 gram of cannabis oil and
informing the police that it was my intention to give the oil to a terminal
cancer sufferer, this act would have certainly have answered my question.
However, if I had taken that
course of action, many of my current plans and important projects would have
gone by the wayside.
My duress? that comes from the law, and in the words of Thomas Jefferson:
"If a law is unjust, a man is not only right to disobey it, he is obligated to do so".
How can I respect a law that has
cannabis in schedule 1 deeming it to have no medicinal value when the contrary
is obviously true?
If Doctors and Oncologists could prescribe cannabis oil then I would not have to break the law.
We have seen above that many
learned Judges over hundreds of years have given great thought to the meaning
of “duress”, my definition of duress? It is a desperate parent begging me to
supply cannabis oil to treat their dying child, how can I refuse?
"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"
And the fact that I still
continue to break the law is not a “choice” it is a “necessity”
NOTE: Court of Appeal rulings are
binding on lower courts, i.e. Magistrates and Crown Courts.
Every UK cannabis activist should
be aware of this important fact of UK law.
The Court of Appeal Judges, Lord
Justice Mance, Mr Justice Newman and Mr Justice Fulford confirmed in the
ruling:
"The jury has a
well-established power to return a verdict of not guilty, whatever the law and
however clear it may be"
