CANNABIS and HUMAN RIGHTS
NOTE: Since the Human Rights Act became law in the UK we have "enjoyed" the protection of rights guaranteed under the UN Universal Declaration of Human Rights (UNDHR) and the European Convention on Human Rights and Fundamental Freedoms (ECHR).
Shamefully, this took over 50 years to incorporate into British Law. It may take some time for the courts to decide what they consider to be just interpretations of certain Rights and whether such Rights bring into disrepute the word or practice of particular laws, such as the Misuse of Drugs Act 1971.
The major areas of conflict between Human Rights and the Misuse of Drugs Act may lie with:
1: Our Right To Privacy - Article 8 of the ECHR / Article 12 of UNDHR
2: Our Right to Freedom of Religion and Belief - Article 9 of ECHR / Article 18 of UNDHR.
Other Articles may also be contravened when the Misuse of Drugs Act is implemented. Countries other than the UK may or may not have these Rights protected by national laws or constitutions. The European Convention itself makes clear that governments and authorities would be guilty of a crime if they interfered without justification with a person's Human Rights:
Article17 of the European Convention on Human Rights:
"Nothing in this Convention may be interpreted as implying for any State, Group or Person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in this Convention."
FREEDOM OF RELIGION AND BELIEF
Article 9 (1) of the European Convention on Human Rights:
"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance."
Article 9 grants us freedom to choose or change our religion or belief: This says nothing about the religion or belief having to be one that is accepted by any government or court. The only limitations put on the holding or practice of a religion or belief, alone or in company with others, are specifically included in the second part of Article 9. The authorities can only lawfully interfere in the interests of law AND (a very important word) in order to protect public safety, health, order, morale or the Rights of others.
Article 9 (2) of the European Convention on Human Rights:
"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morale, or for the protection of the rights and freedoms of others."
Clearly the practice of, for example, cannibalism, would infringe upon the rights of others in the very least, and therefore governments have the lawful power to prevent that act even though people still have the Right to believe it. The use of cannabis, alone or with others, however, cannot be said to be any threat to public safety, health, order, morale or the Rights of others. At least there is no medico-scientific evidence to suggest so particularly as the levels of danger have already been set by the legality of far more dangerous substances such as alcohol, tobacco and solvents. The British Government may disagree, but in defending their Misuse of Drugs Act the onus must be upon them to justify what would be the crime of contravening Article 9. However, many people in the legal profession have stressed that it may be very difficult to peruade most judges of the legitimacy of a claim that the use of cannabis was a part of a person's private belief system. Yet other people may say that is simply another form of tyranny as Article 9 grants no such power of decision to any authority. In 1981, the countries of the world affirmed their intention to rid the world of religious intolerance when they endorsed the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
We have yet to see how long it takes some of them to recognise that the belief in the beneficial use of cannabis is a valid belief.
RIGHT TO PRIVACY: Article 8 grants a person the Right to privacy:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Once again, it says nothing about what one does in private having to be with the approval of any authority, subject to the same criteria as Article 9.
"There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety of the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
That is: provided that one does not threaten or harm national security or public safety, health, order, morals or the Rights of others, then the authorities have no lawful reason to intervene. In this case threats to national security or law-breaking may also empower the authorities to react. Once again, there is no evidence to suggest that the use of cannabis or in fact its cultivation at home, poses any threat to anyone.
Neither the Police nor other authorities are entitled to "interfere" with these rights unless their intervention is properly justified under the Convention. The interference must be both lawful and "necessary in a democratic society" for the achievement of specified social ends.
The UK government claims that cannabis is a dangerous drug and therefore a threat to public health but it must be up to them to prove so in order to justify their actions in entering a persons home to search for cannabis.
FRANCIS WILKINSON, Chief Constable of Gwent from 1997 to 1999, wrote an article in The Times in which he stated that he believed of Article 8:
"Article 8 offers such scant grounds for a government to continue cannabis prohibition of possession of cannabis that the case for legalisation will in time be successful. The question is whether the turning point for legalisation will be in Parliament or in the courts."
WHEN IT CAME TO COURT:
** In September 2000, a Guam Court had ruled backed the use of cannabis as a Rastarfarian Sacrament but this decision was reversed by a US Court in 2002: GUAM: Religion No Defense For Drugs
** CANADA ON: Holy Smoke Defence Fails: Ottowa Sun, 16 May 2002
** In the UK in July 2001, Jerry Ham's human rights defence against private possession of cannabis was rejected by a Crown Court Judge in London. This was reported in The Guardian.
This will mean that an appeal will be heard first before the royal Courts of Justice and then the House of Lords. If they fail, then the case may eventually be taken to the European Court of Human Rights in Strasbourg
** On October 23, 2001, Lord Justice Rose, Mr Justice Davis and Sir Richard Tucker reported in The Times. ruled:
"The prohibition in the Misuse of Drugs Act 1971 in relation to the supply of cannabis did not amount to an interference with a defendant's rights under article 9.1 of the European Convention on Human Rights to manifest his religion in worship, teaching, practice and observance, in view of the provisions of article 9.2."
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Source: The Times, UK
Pub Date: Tuesday, 20 February 2001
ART: Human Rights Act will make cannabis legal
Author: FRANCIS WILKINSON, Chief Constable of Gwent from 1997 to 1999
URL: http://www.thetimes.co.uk/article/0,,76-87031,00.html
When the Human Rights Act had been passed by Parliament but had still to take effect, the Lord Advocate in Scotland expressed the hope that the English and Scottish courts would never have to use the power in the Act to declare a law incompatible with the European Convention on Human Rights.
In similar vein, the Lord Chancellor, Lord Irvine of Lairg, talks of the Act as "a strong magnetic field" across English law, emphasising its interpretative rather than its declaratory effect. It is natural enough that the Government's law officers should have such hopes but perhaps more surprisingly that they are shared by eminent human rights lawyers. Lord Lester of Herne Hill, QC, has said in this supplement that the Human Rights Act "will have to be interpreted so as to weave Convention rights into our law, rather than tearing gaping holes in it" if it is to succeed.
Elsewhere, he has written of "domesticating" the Convention rights.
The Human Rights Act has been with us only since October for its main provisions but experience of it so far supports these aspirations. There have been no declarations of incompatibility. The main area of attention has been legal procedure under Article 6, the right to a fair trial. The courts have been adjusting their own procedures rather than requiring ministers to review the law of the land. Change seems to have come mainly for lawyers.
So is Section 4 of the Act, which allows courts to issue declarations of incompatibility, a dead letter? Is English law already in accordance with the Convention on Human Rights so that no major change will be needed and procedural tinkering will be its whole effect? In relation to one important area of law I believe the answer is "no": the prohibitory laws on drugs are contrary to at least one Article of the Convention and will have to be changed.
Article 8 of the Convention says "everyone has the right to respect for his private and family life, his home and his correspondence". It goes on to provide a series of circumstances in which a public authority's interference with the right is permitted - "such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others".
If the Government is challenged under Article 8 it can use any or all of these justifications, but it is doubtful whether any of them will do the job. Many of them are not relevant or, like the prevention of crime and the economic wellbeing of the country, tend rather to favour legalisation. The justification for interference with the right that is likely to be most relied upon by a government is that relating to the protection of health. The point is that smoking cannabis is bad for you, as smoking tobacco is and as drinking alcohol in more than small quantities is, but that its health effects on users are rather less serious than those of these two legal drugs. The Lancet has concluded from an analysis of hundreds of publications on cannabis "that on the medical evidence available, moderate indulgence in cannabis has little effect on health, and that decisions to ban or to legalise cannabis should be based on other considerations".
Cannabis is remarkably safe: research on rats has found that it would need 10,000 times the daily intake of a moderate to heavy user before someone died from being poisoned by it. Paracetamol and aspirin are much more dangerous. And when other considerations than health are taken into account, the prohibition of cannabis possession is disproportionate to its effects.
Cannabis has been demonised by being placed on the wrong side of the law for reasons that are purely historical. It did not happen to be in common use in the developed world when the international conventions on drugs were first signed. Now it is, and the law is out of date.
It will not be long before Article 8 is used to challenge the cannabis provisions of the 1971 Misuse of Drugs Act. Judges can be expected to be wary of making a declaration of incompatibility that would be likely to lead to such major social change. The European Court of Human Rights gives a generous margin of appreciation where a decision concerns "complex, scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the contracting states" .
Whether they follow European principle or English precedent, English courts
are likely to take a similar line. For a time courts will avoid, in Lord Lester's
phrase, tearing a gaping hole in our law. Declarations are a new power which
they will use with caution. But Article 8 offers such scant grounds for a government
to continue cannabis prohibition that the case for legalisation will in time
be successful. The question is whether the turning point for legalisation will
be in Parliament or in the courts.
The author was Chief Constable of Gwent from 1997 to 1999
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Date: 15 Nov 2001
Regina v Taylor (Paul Simon)
Before Lord Justice Rose, Mr Justice Davis and Sir Richard Tucker Judgment October 23, 2001
The prohibition in the Misuse of Drugs Act 1971 in relation to the supply of cannabis did not amount to an interference with a defendant's rights under article 9.1 of the European Convention on Human Rights to manifest his religion in worship, teaching, practice and observance, in view of the provisions of article 9.2.
The Court of Appeal, Criminal Division, so held in refusing an application by Paul Simon Taylor for leave to appeal against conviction of possession of cannabis on his plea of guilty following a ruling by Judge Stone at Inner London Crown Court that in the light of the Crown's concession that Rastafarianism was a religion and that the drugs were to be used for an act of worship, article 9 was engaged but that the article 9.1 rights were qualified by article 9.2.
Mr Owen Davies, QC and Mr Ben Cooper, assigned by the Registrar of Criminal Appeals, for the defendant; Mr Christopher Hehir and Mr James Lofthouse for the Crown.
LORD JUSTICE ROSE said that the judge was properly entitled to rely upon the inferences to be drawn from the United Kingdom's subscription to the Single Convention on Narcotic Drugs 1961 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, that an unqualified ban on possession of cannabis with intent to supply was necessary to combat the public health and safety dangers of drugs.
He was also, in the exercise of his discretion, fully entitled to reach the conclusion, which he did, that no stay was appropriate in relation to the prosecution of the defendant and that questions of proportionality and necessity were not proper questions for consideration by a jury.
Their Lordships accepted the Crown's submission that a distinction had to be drawn between legislation which prohibited conduct because it related to or was motivated by religious belief, and legislation which was of general application but prohibited, for other reasons: conduct which happened to be encouraged or required by religious belief.
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The General Assembly,
Considering that one of the basic principles of the Charter of the United Nations is that of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action in co-operation with the Organization to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,
Considering that the Universal Declaration of Human Rights and the International Covenants on Human Rights proclaim the principles of nondiscrimination and equality before the law and the right to freedom of thought, conscience, religion and belief,
Considering that the disregard and infringement of human rights and fundamental freedoms, in particular of the right to freedom of thought, conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering to mankind, especially where they serve as a means of foreign interference in the internal affairs of other States and amount to kindling hatred between peoples and nations,
Considering that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed,
Considering that it is essential to promote understanding, tolerance and respect in matters relating to freedom of religion and belief and to ensure that the use of religion or belief for ends inconsistent with the Charter of the United Nations, other relevant instruments of the United Nations and the purposes and principles of the present Declaration is inadmissible,
Convinced that freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination,
Noting with satisfaction the adoption of several, and the coming into force of some, conventions, under the aegis of the United Nations and of the specialized agencies, for the elimination of various forms of discrimination,
Concerned by manifestations of intolerance and by the existence of discrimination in matters of religion or belief still in evidence in some areas of the world,
Resolved to adopt all necessary measures for the speedy elimination of such intolerance in all its forms and manifestations and to prevent and combat discrimination on the ground of religion or belief,
Proclaims this Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief:
Article 1
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.
3. Freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
Article 2
1. No one shall be subject to discrimination by any State, institution, group of persons, or person on the grounds of religion or other belief.
2. For the purposes of the present Declaration, the expression "intolerance and discrimination based on religion or belief" means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.
Article 3
Discrimination between human being on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.
Article 4
1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.
Article 5
1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.
2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.
3. The child shall be protected from any form of discrimination on the ground of religion or belief. He shall be brought up in a spirit of understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.
4. In the case of a child who is not under the care either of his parents or of legal guardians, due account shall be taken of their expressed wishes or of any other proof of their wishes in the matter of religion or belief, the best interests of the child being the guiding principle. 5. Practices of a religion or belief in which a child is brought up must not be injurious to his physical or mental health or to his full development, taking into account article 1, paragraph 3, of the present Declaration.
Article 6
In accordance with article I of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms:
(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes;
(b) To establish and maintain appropriate charitable or humanitarian institutions;
(c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief;
(d) To write, issue and disseminate relevant publications in these areas;
(e) To teach a religion or belief in places suitable for these purposes;
(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;
(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;
(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's religion or belief;
(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.
Article 7
The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.
Article 8
Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights.
© Copyright 1997
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland
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