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UK: Quayle & Ors v R [2005] EWCA Crim 1415 (27 May 2005)
England and Wales Court of Appeal Friday 27 May 2005 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION) Royal Courts of Justice Strand, London, WC2A 2LL Friday, 27 May 2005 B e f o r e : LORD JUSTICE MANCE MR JUSTICE NEWMAN and MR JUSTICE FULFORD ____________________ Between: Barry Quayle First Appellant - and - Reay James Wales Second Appellant - and - Graham Jack Kenny Third Appellant - and - Anthony Taylor Fourth Appellant - and - May Po Lee Fifth Appellant - and - D (Attorney-General's Reference) - and - Regina Respondent ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Mr E Fitzgerald QC and Mr P Mytton for the First Appellant Mr E Fitzgerald QC and Mr B Cooper for the Second Appellant Ms K Hodson for the Third Appellant Mr R Menon for the Fourth Appellant Mr Adrian Eissa for the Fifth Appellant Mr Mukul Chawla QC and Mr David McGonigal (instructed by Crown Prosecution Service) for the Respondent in the first three appeals Mr Mukul Chawla QC and Ms Jacqueline Hall (instructed by HM Customs and Excise) for the Respondent in the fourth and fifth appeals Attorney-General's Reference: Mr K Sutton for D (acquitted person) Mr J Rees instructed by the Attorney-General ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Lord Justice Mance: Introduction and summary of facts There are before us five appeals against conviction and one Attorney General's reference. All these cases raise issues about the availability and extent of any defence of medical necessity in respect of the commission of what would otherwise constitute offences against the legislation governing the cultivation, production, importation and possession of cannabis. We start with a summary of the relevant facts. Quayle: i) Mr Quayle now aged 38 is a bi-lateral below-knee amputee as a result of operations in 1997 and 2000. He suffers pain, which he has rated as usually 8/10 and at worst 12/10 (sic). On a search of his home on 9th November 2002, he was found to be cultivating cannabis plants in his loft for his personal use. He said in interview that "I cannot stop because at night it gives me more than anything else they give me, it is the only thing that gives me relief"; he said that he did not take diazepam and temazepam, with which he had been prescribed, because they "knocked him" out and he had two children with attention deficit disorder, who he could not risk not hearing. ii) Mr Quayle was charged with the cultivation of cannabis plant in contravention of s.6(1) of the Misuse of Drugs Act 1971. His defence statement said that "he did grow cannabis, but did so out of necessity and uses it for personal use to alleviate pain". Expert reports were produced on his behalf. Dr Reynolds, a Fellow of the Royal College of Anaesthetists and a member of the Pain Society, saw Mr Quayle on 12th June 2003. He explained that pain is either nociceptive (the result of damaged tissue) or neuropathic (associated with malfunction of the nerves). The former tends to respond to normal pain-killers, the latter to drugs working on nerves, such as those used to treat epilepsy or depression. He set out Mr Quayle's medical history and the drugs with which he had been prescribed by his GP since 1999, and said: "At night he takes up to four hours to get to sleep. He is prescribed diazepam and temazepam. He claims that his social circumstances discourage him from taking them. Smoking a joint of cannabis relieves his pain and relaxes him so that he gets to sleep within an hour or so." iii) Dr Reynolds concluded: "Mr Quayle is a man with an extensive history of severe pain, which a long succession of doctors has accepted is genuine. He has received incomplete relief of this symptom despite appropriate conventional medication. Part of his problem is that his sleep is disturbed despite prescription of regular night sedation. Smoking cannabis gives some assistance with his pain and insomnia. Without entering into the debate around legality, there is no question in my mind that this patient has taken cannabis with benefit to his chronic symptoms." iv) Victoria Jenkins, a BSc in pharmacology and toxicology, explained that the main psychologically active chemical in all forms of cannabis is tetrahydrocannabinol (THC), that cannabis has analgesic (pain-relieving) properties, muscle-relieving properties and anti-emetic properties and was used medically for these purposes in the 19th century. Her report (endorsed by Mr Longford, a BSc in biological sciences and PhD in toxicology) stated: "… As with most drugs, the exact effects of cannabis on an individual are difficult to predict. …. Mr Quayle suffers from nociceptive and neuropathic pain and it is quite feasible that the pain relief provided by cannabis would be as good if not better than other prescription medications for the treatment of these kinds of pain. Cannabis also produces relaxation and it is therefore likely to assist with any sleep problems that Mr Quayle may have. ….. Most currently available analgesic drugs have serious side effects and are not always effective in the treatment of pain particularly neuropathic pain, which is resistant to the analgesic effects of drugs such as opioids. Various cannabinoids produce inhibition of pain responses. At present, there is laboratory evidence which supports an analgesic effect of cannabinoids, but there is no reliable clinical evidence to support this. …. Mr Quayle has been examined by a pain consultant who concluded that he suffered from both nociceptive and neuropathic pain, which is likely to respond well to cannabis. If he suffers from phantom-limb pain …., this is also likely to respond well to cannabis. …." v) On 24th July 2003, at the outset of Mr Quayle's trial before HHJ O'Rourke in Lincoln Crown Court, the judge ruled that he would not leave any defence of necessity to the jury. Mr Quayle thereupon pleaded guilty and was sentenced to 4 months' imprisonment suspended for six months. He appeals on the basis that the judge erred in his ruling. The basis of that ruling was that necessity could not be available as a defence unless, firstly, "the commission of the crime was necessary or reasonably believed to be necessary by the defendant for the purpose of avoiding or preventing death or serious injury to himself or another", as well as, secondly, committed for that reason alone and, thirdly, objectively reasonable and proportionate. The judge held that "it extends the meaning …. of the words 'serious injury to himself' far too much to imply into that the avoidance of pain or discomfort of however serious a degree when that derives from some condition the defendant is already suffering from". vi) Before us Mr Edward Fitzgerald QC made a submission, evidently not made to the trial judge, to the effect that Mr Quayle's conduct had not only to be viewed in the context of the serious pain to which he was prone, but that there was also a risk of suicide. He referred to a GP's medical report dated 5th November 2002, following a review of Mr Quayle on 1st November 2002. It stated that "he still has an irregular sleep pattern, anhedonia and is feeling thoughts of suicide. Constantly on edge for months, leading to certain levels of aggression within the home". But Mr Quayle was arrested eight days after this report, and his statements after arrest indicate that he had been taking cannabis for some time. The reported thoughts of suicide cannot have led him to take cannabis (or it seems to avoid aggression). It does not surprise us that, in these circumstances, no suggestion was made to the trial judge that the self-administration of cannabis was "necessary" to avoid a risk of suicide, or that no criticism is addressed in the grounds to the fact that the judge in his ruling did not address any such risk. Wales: i) Mr Wales now aged 53 suffers from a large number of injuries and ailments. He fractured two vertebrae in the Navy in 1968. He broke five further vertebrae in a traffic accident in 1981. He contracted tuberculosis resulting in lung scars and breathing problems in 1983. He had a further accident lacerating his tendons and breaking his left wrist. In 1990 he developed chronic pancreatitis for alcohol-related reasons together with depression and chronic (in his words at one point "life-threatening") pain. His liver has been damaged by hepatitis B contracted in Thailand. He has rheumatoid arthritis, osteoporosis and osteoarthritis. ii) A search of Mr Wales's home on 4th July 2002 discovered some 20 cannabis plants growing in a back bedroom. He said in interview that he took cannabis to get off morphine (apparently a mistake for dihydrocodeine) tablets to which he had become addicted. Mr Wales was charged with the production of cannabis contrary to s.4(2)(a) of the Misuse of Drugs Act 1971, and a trial spread over three days took place on 13th/15th January 2003 before HHJ Thompson in the Ipswich Crown Court. In support of a defence of medical necessity, Mr Wales adduced evidence that he suffered chronic pain from his pancreatitis as well as from bleeding caused by anti-inflammatory drugs which he had been prescribed for his arthritis. He had become addicted to one drug, dihydrocodeine, which he had been prescribed since 1981, and he would rather smoke cannabis than take morphine. Dihydrocodeine and morphine stopped him eating, while cannabis gave him an appetite and put him above the pain. "It doesn't take the pain away; it helps me cope with it"; and it had no side effects. He wished it was in tablet form. iii) Mr Wales's GP, Dr Marcolyn, confirmed that Mr Wales was unable to tolerate anti-inflammatory drugs because of their gastric effect and the risk of them causing pancreatitis; and that he had taken dihydrocodeine for many years and become addicted to it. Dr Bailey, a consultant in anaesthesia and pain management who had treated Mr Wales, said that Mr Wales took 6 to 8 dihydrocodeine tablets a day and occasionally, every two or so months, if things were bad, the stronger opiate, morphine. He had had two or three admissions in the past six months which might be related to withdrawal symptoms from dihydrocodeine or alcohol. He did not qualify for a cannabis trial, because, Dr Bailey said, that was only available for multiple sclerosis (MS) sufferers. Dr Bailey suggested further treatment with dihydrocodeine and celecoxib (although that drug has since, it appears, been withdrawn). Dr Notcutt, a consultant anaesthetist, lecturer and researcher on pain and cannabinoids, described the risks of anti-inflammatory drugs, which he said that he personally would not prescribe. These risks include indigestion, ulcers and peritonitis. He said that peritonitis is serious. It causes as many as 2000 deaths a year in the United Kingdom, though mainly among the elderly. He agreed that, if there was a specific risk of injury from any anti-inflammatory drug, one would not expect it to be prescribed. The overall benefits of cannabinoids were pain relief and pain distancing, in that the patient was distanced from the pain and therefore not so bothered by it. That he said also happens with morphine. Further, cannabis gives improved sleep, relief of muscle spasms and bladder spasms for patients with multiple sclerosis, relief of constipation, relaxation and relief of anxiety, misery and depression. He said that some patients experience side effects which cause them to discontinue using cannabis, and that "A lot of patients don't like smoking so they eat it or they go without". However, he said that, if he were able, legally, to write a prescription, he "would be trying cannabis certainly for pain", in the form of a preparation sprayed under the tongue. iv) The judge left the defence of necessity to the jury, who convicted. The summing up is criticised (a) for failure to explain that serious pain could amount to serious injury, in particular because of its psychological consequences; and (b) for a direction that the defence could only be available if the defendant believed that he would (i) imminently and (ii) inevitably suffer serious injury. Taylor and Lee: i) Mr Taylor was stopped by Customs while passing through the green channel at Luton Airport on 9th February 2003 on arrival from Switzerland. Before any questions were put to him, he handed to Customs his card, reading "medicinal cannabis and natural health consultant", and when asked volunteered that he had with him organic cannabis for purposes of medical necessity in connection with a clinic of which he is or was the proprietor, called Tony's Holistic Clinic, in King's Cross. His luggage was found to contain 20.5 kgs of cannabis. ii) Mr Taylor is not medically qualified, but the clinic had at the time some 700 patients, many HIV-positive or suffering AIDS and others with MS, all said to have to produce a letter of diagnosis written by a doctor and identification before becoming patients. Mr Taylor at one point described the clinic as a "charity", but at another referred to it as a "business" and explained that 5% of the customers got cannabis free and one-third got it at cost, with the rest therefore paying a full price. He explained that the price of the 20.5 kgs had been SFr 75,000 (some £35,000, although he said the cannabis had been bought on credit) and that this cheap Swiss price "allows a lot of profit" which funded the salaries of five people at the clinic (all including himself apparently remunerated at £7 per hour) as well as expenses such as the airfares. The cannabis was organically grown in Switzerland, and contained no pesticides, which was why he procured it there, rather than on the streets in London. We note in parenthesis that, when a Customs officer stated in interview that "I understand that it's not for your personal use", Mr Taylor replied "Not all of it no". If and so far as this might suggest that some was for his personal use, that has later been denied and the present appeal falls to be considered on the basis that it was all for use in the clinic. Mr Taylor was charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class B controlled drug, contrary to s.170(2) of the Customs and Excise Management Act 1979. He was bailed and his passport was surrendered as a condition of his bail. iii) A month later, Ms May Po Lee, a former employee in a health shop run by Mr Taylor below his clinic, was stopped while going through the green channel at Luton Airport after arrival from Switzerland. She immediately produced a letter from Mr Taylor indicating that she had cannabis for medical use for which Mr Taylor was responsible. Her luggage was found to contain 5.03 kgs of cannabis. The importation was because Tony's Holistic Clinic was running short of cannabis. Ms Lee explained in interview that she was engaged by Mr Taylor as a courier for the trip, that he had paid for her flight and hotel with his credit card, and that she would have been paid £800 to go and collect the cannabis. She explained that the clinic was a holistic centre dealing with very ill patients, who got a lot a relief from the cannabis, especially towards the end of their lives. Mr Taylor and Ms Lee were, in relation to this importation, both charged with being knowingly concerned in the fraudulent evasion of the prohibition or restriction on the importation of a Class B controlled drug. iv) In his defence statement in respect of both charges against him, Mr Taylor maintained that the cannabis was on each occasion imported "strictly for the purposes of alleviating the pain and suffering of established customers all of whom are sufferers from significant debilitating diseases and/or terminal illnesses and were fundamentally dependant on the use of a certain type of cannabis to maintain a basic quality of life", and that "His principal motivation was a humanitarian concern that people would be subjected to significant pain without the cannabis. He did not believe that other medicines, particularly morphine, would provide the same palliative effect for its users while simultaneously maintaining a quality of life". In her defence statement, Ms Lee said that "The principal reason for her importation of cannabis into the United Kingdom was her belief that if she did not import the substance, the patients of Tony's Holistic Clinic would suffer from serious physical injuries. Ms Lee would not have imported cannabis into the United Kingdom, had she not held this belief". v) The defence served various expert reports. Dr Notcutt would have given evidence on pain relief and cannabis, no doubt on the lines set out above in relation to Wales. Dr Iverson, author of The Science of Marijuana (2000), would have covered the use of cannabis in relation to AIDs sufferers and have spoken to cannabis's relative non-toxicity and its limited adverse effects within a range tolerated for conventional medicines. Dr Grinspoon, author of Marijuana Revisited (1978) and Marijuana, The Forbidden Medicine (1993) would have spoken of cannabis's "unusual safety" and said that "Cannabis can reduce pain. However, it is inconsistent and can in some cases heighten sensitivity to pain. Consequently, the use of cannabis for pain relief must be considered on a case by case basis". The defence also proposed to call two doctors who had on occasions referred patients to Tony's Holistic Clinic, namely Dr Youle, and HIV specialist at the Royal Free Hospital, Hampstead. The latter would also have supported the view that cannabis has quite clear therapeutic uses, and can help to alleviate medical symptoms. vi) It was also proposed to call four or five patients to explain their conditions, why they used cannabis, how it benefited them, why other conventional drugs did not and whether they would have suffered death or serious injury but for the supply to them of cannabis by Tony's Holistic Clinic. vii) The matter came on for trial at the Luton Crown Court before HHJ Moss on 13th October 2003. After hearing argument, the judge ruled on 14th October 2003 that both the Crown case and the defence case were sufficiently clear for him to be able to decide whether there was any possible defence of necessity, that there was not, that the defendants' proposed evidence on this subject was inadmissible, and that the Crown did not therefore have any case of necessity to disprove. The judge for the purposes of his reasoning was prepared to accept that pain equates with serious injury, but considered nonetheless that the medical evidence "taken at its highest" did not take the case over the threshold set out in Martin [2000] 2 CAR 42. There was insufficient "responsibility" for patients, insufficient connection in time with any risk and the evidence was of choice rather than any "forcing" of either defendant's will. viii) As a result of this ruling both defendants pleaded guilty. On 3rd November Mr Taylor was sentenced to 18 months' imprisonment for the first and 6 months consecutive for the second importation, making a total of two years imprisonment, suspended for two years, and was ordered to pay £7,500 costs. Ms Lee was sentenced to 100 hours community service for her part in the second importation. Both defendants now appeal on the ground that the judge's ruling was in error, the evidence of alleged necessity should have been admitted and the matter left to the jury. Kenny: i) Mr Kenny now aged 25 injured his back in or about 2000 picking up a piece of glass at work, and his case was that he feels pain every morning and that his back can tighten up for a day or a week. ii) On a search of his house on 4th March 2003 there were found 16 cannabis plants and 211.54 gms of cannabis. In interview, Mr Kenny accepted that these were his, and said that he had smoked cannabis - some 5 to 10 reefers a day – to avoid serious ongoing pain and consequent mental suffering caused by his back injury. Cannabis gave him the fastest relief, and had fewer side effects than other drugs. It enabled him to relax and set his pain aside. He was charged with producing the 16 cannabis plants and possessing the 211.54 gms of cannabis contrary to ss. 4(1) and 5(1) of the Misuse of Drugs Act 1971. iii) His trial began before HHJ Barry in the Bradford Crown Court on 7th June 2004. The defendant gave evidence along the lines of his interview. He said that his life had been much affected by the back pain which he felt every morning; and at intervals, sometimes once a month, sometimes longer or shorter, he suffered spasms, when he would cry out and hold his breath and be unable to walk, to pull up on his socks or to wash himself; and such an effect could last a day or even longer, up to a week, and he was never able to relax. He had had about ten conventional sorts of painkiller, electronic treatment, one session of acupuncture (but he proved to have a phobia to needles) and, when he became depressed, antidepressants. In these circumstances he had come on most days to use cannabis which gave him the fastest relief and had fewer side effects. Its effect was to distract the pain, to enable him to relax and set the pain aside in his mind, and in due course with its assistance he was able to get himself back on his feet and go to work and with work his depression had lifted. iv) The defence also called evidence from Dr Hickey who said that no physical lesions were detectable, but that the defendant suffered chronic back pain - though a doctor could only decide what level of pain on the basis of what the patient said. The defence also called a Mr Atha, who has taken a keen interest in the therapeutic uses of cannabis for over 15 years and is described as a Drug Abuse Research Consultant with the Independent Drug Monitoring Unit, 100 Park Road, Hindley, Wigan. He prepared two very lengthy reports, one dealing with drugs and their production generally and the other with the subject of medical necessity. He said that cannabis could itself have a potent effect in reducing pain, particularly on a patient's nerves, and could also increase the effectiveness of prescription drugs designed to reduce pain. v) At the close of the defence case, the judge ruled after argument that there was no defence of medical necessity capable of being left to the jury. There were in his view public policy limitations on the availability of the defence; it required a fear of a danger extraneous to the defendant himself; and it could not provide a licence to offend as often as necessary over years, in order to avoid pain, when pain, although to some extent ascertainable objectively, was largely only capable of assessment by the sufferer himself. Mr Kenny now appeals on the ground that the judge should have left the defence to the jury. Attorney Generals' Reference (No. 2 of 2004): i) During the course of this reference, the defendant waived his right to anonymity, so that we can refer to him by name as Mr Ditchfield. 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). iii) He was tried before The Recorder of Chester, HHJ Elgan Edwards DL, on 13th to 15th January 2004. At the outset of the trial, before evidence, the judge invited and heard submissions whether any defence of necessity could be available to Mr Ditchfield. Initially, he considered not. But he was persuaded in the light of this court's decision in Philip David Lockwood [2002] EWCA Crim 60 to revise his view. iv) Mr Ditchfield then gave evidence on the lines of his interview, and called a Mr Glyn Williams, a MS sufferer with prostate cancer, who said that Mr Ditchfield had done him the most good, that morphine has side effects and that Mr Ditchfield does not take money. v) 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. 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 legislative framework Under the Misuse of Drugs Act 1971, a "controlled drug" is any substance or product specified in Part I, II or III of Schedule 2 to the Act. Class A, B and C drugs are any of the substances and products specified in, respectively, Parts I, II and III of Schedule 2. These different grades correspond with the seriousness attached to the offences relating thereto. Prior to 29th January 2004, cannabis and cannabis resin were Class B drugs, while cannabinol (except where contained in cannabis or cannabis resin) and its derivatives were Class A drugs. As from 29th January 2004, cannabis, cannabis resin, cannabinol and cannabinol derivatives have all been reclassified as Class C drugs by the Misuse of Drugs Act 1971 (Modification) (No. 2) Order 2003 (SI 2003 No. 32201). The reclassification followed the recommendation of a report in March 2002 of the Advisory Council on the Misuse of Drugs. The Home Secretary announced his acceptance of this report in July 2002, on the basis that it would reflect more accurately the relative harmfulness of drugs, give the misuse of drugs legislation greater credibility and indicate the government's priority to tackle Class A drugs. The 1971 Act contains provisions as follows: "3 Restriction of importation and exportation of controlled drugs (1) Subject to subsection (2) below- (a) the importation of a controlled drug; and (b) the exportation of a controlled drug are hereby prohibited. (2) Subsection (2) does not apply- (a) to the importation or exportation of a controlled drug which is for the time being excepted from paragraph (a) or, as the case may be, paragraph (b) of subsection (1) above by regulations under section 7 of this Act. (b) to the importation or exportation of a controlled drug under and in accordance with the terms of a licence issued by the Secretary of State and in compliance with any conditions attached thereto. 4 Restriction on the prohibition and supply of controlled drugs (1) Subject to any regulations under section 7 of the Act for the time being in force, it shall be unlawful for a person- (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another. (2) Subject to section 28 of this Act, it is an offence for a person- (a) to produce a controlled drug in contravention of subsection (1) above; or (b) to be concerned in the production of such a drug in contravention of that subsection by another. 5 Restriction on possession of controlled drugs (1) Subject to any regulations under section 7 of the Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession. (2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above. (3) Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act. (4) ….. 6 Restrictions on cultivation of cannabis plant (1) Subject to any regulations under section 7 of the Act for the time being in force, it shall not be lawful for a person to cultivate any plant of the genus Cannabis. (2) Subject to section 28 of this Act, it is an offence to cultivate any such plant in contravention of subsection (1) above." Ss. 5(4) and 28 of the Act deal with defences not presently relevant (in the case of s.28, relating to knowledge of facts necessary for the relevant offence). S.7 of the 1971 Act provides: "7(1) The Secretary of State may by regulations- (a) except from section 3(1)(a) or (b), 4(1)(a) or (b) or 5(1) of this Act such controlled drugs as may be specified in the regulations; and (b) make such other provision as he thinks fit for the purpose of making it lawful for person to do things which under any of the following provisions of this Act, that is to say section 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do. (2) Without prejudice to the generality of paragraph (b) of subsection (1) above, regulations under that subsection authorising the doing of any such thing as is mentioned in that paragraph may in particular provide for the doing of that thing to be lawful – (a) if it is done under and in accordance with the terms of a licence or other authority issued by the Secretary of State and in compliance with any conditions attached thereto; or (b) if it is done in compliance with such conditions as may be prescribed. (3) Subject to subsection (4) below, the Secretary of State shall so exercise his power to make regulations under subsection (1) above as to secure – (a) that it is not unlawful under section 4(1) of this Act for a doctor, dentist, veterinary practitioner or veterinary surgeon, acting in his capacity as such, to prescribe, administer, manufacture, compound or supply a controlled drug, or for a pharmacist or a person lawfully conducting a retail pharmacy business, acting in either case in his capacity as such, to manufacture, compound or supply a controlled drug; and (b) that it is not unlawful under section 5(1) of this Act for a doctor, dentist, veterinary practitioner, veterinary surgeon, pharmacist or person lawfully conducting a retail pharmacy business to have a controlled drug in his possession for the purpose of acting in his capacity as such. (4) If in the case of any controlled drug the Secretary of State is of the opinion that it is in the public interest – (a) for production, supply and possession of that drug to be either wholly unlawful or unlawful except for purposes of research or other special purposes; or (b) for it to be unlawful for practitioners, pharmacists and persons lawfully conducting retail pharmacy businesses to do in relation to that drug any of the things mentioned in subsection (3) above except under a licence or other authority issued by the Secretary of State, he may by order designate that drug as a drug to which this subsection applies; and while there is in force an order under this subsection designating a controlled drug as one to which this subsection applies, subsection (3) above shall not apply as regards that drug. ….. (6) The power to make orders under subsection (4) above shall be exercisable by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (7) The Secretary of State shall not make any order under subsection (4) above except after consultation with or on the recommendation of the Advisory Council." Pursuant to the powers conferred by s.7 as well as certain other sections of the 1971 Act, the Secretary of State made the Misuse of Drugs Regulations 1985 (SI 1985 No. 2066), revoked and replaced with effect from 1st February 2001 by the Misuse of Drugs Regulations 2001 (SI 2001 No. 3998). These regulations contain exemptions from the offence provisions of the 1971 Act. In that connection, they contain schedules numbered 1 to 5, the operation of which is conveniently summarised in the Report of the Independent Inquiry into the Misuse of Drugs Act 1971 (the Runciman Report) as follows. Schedule 1, lists drugs, from both Class A and Class B, which may only be used for medical or scientific research. These include cannabis, cannabis resin, cannabinol and cannabinol derivatives not being dronabinol or its stereoisomers. (Dronabinol is an anti-emetic and appetite stimulant marketed as Marinol, which was moved from schedule 1 to schedule 2 by the Misuse of Drugs (Amendment) Regulations 1995 (SI 1995 No. 2048)). All these drugs are also designated separately in The Misuse of Drugs (Designation) Order 2001 (SI No. 2001 No. 3997) as drugs to which s.7(4) of the 1971 Act applies. Schedule 2 specifies drugs in relation to which there are controls over prescription, secure storage and record keeping, including cocaine, heroin, methadone and morphine. These drugs may be prescribed and lawfully supplied and possessed on prescription. Otherwise, their supply and possession, together with their importation, exportation and production, are offences except under licence. Schedule 3 lists drugs subject to a less elaborate range of controls. Schedule 4 lists drugs which may lawfully be possessed by anyone provided they are in the form of medicinal products, and may be lawfully imported or exported, if in the form of such products for self-administration. Schedule 5 contains very weak preparations or products which may be freely imported, exported or possessed, but for the production or supply of which authority is needed. The prescriptive nature and the detail of the scheme of regulation, exception and permission contained in the Misuse of Drugs Regulations 2001 is illustrated by the following extracts: "Exceptions for drugs in Schedules 4 and 5 …. 4(1) Section 3(1) of the Act (which prohibits the importation and exportation of controlled drugs) shall not have effect in relation to the drugs specified in Schedule 5. (2) The application of section 3(1) of the Act, in so far as it creates an offence, and the application of sections 50(1) to (4), 68(2) and (3) or 170 of the Customs and Excise Management Act 1979, in so far as they apply in relation to a prohibition or restriction on importation or exportation having effect by virtue of section 3 of the Act, are hereby excluded in the case of importation or exportation by any person for administration to himself of any drug specified in Part II of Schedule 4 which is contained in a medicinal product. (3) Section 5(1) of the Act (which prohibits the possession of controlled drugs) shall not have effect in relation to - (a) any drug specified in Part II of Schedule 4 which is contained in a medicinal product; (b) the drugs specified in Schedule 5. ….. Licences to produce etc. controlled drugs 5. Where any person is authorised by a licence of the Secretary of State issued under this regulation and for the time being in force to produce, supply, offer to supply or have in his possession any controlled drug, it shall not by virtue of section 4(1) or 5(1) of the Act be unlawful for that person to produce, supply, offer to supply or have in his possession that drug in accordance with the terms of the licence and in compliance with any conditions attached to the licence." ….. Administration of drugs in Schedules 2, 3, 4 and 5 7. - (1) Any person may administer to another any drug specified in Schedule 5. (2) A doctor or dentist may administer to a patient any drug specified in Schedule 2, 3 or 4. Production and supply of drugs in Schedules 2 and 5 8. - (1) Notwithstanding the provisions of section 4(1)(a) of the Act - (a) a practitioner or pharmacist, acting in his capacity as such, may manufacture or compound any drug specified in Schedule 2 or 5; (b) a person lawfully conducting a retail pharmacy business and acting in his capacity as such may, at the registered pharmacy at which he carries on that business, manufacture or compound any drug specified in Schedule 2 or 5. (2) Notwithstanding the provisions of section 4(1)(b) of the Act, any of the following persons, that is to say - (a) a practitioner; (b) a pharmacist; (c) a person lawfully conducting a retail pharmacy business; (d) the person in charge or acting person in charge of a hospital or nursing home which is wholly or mainly maintained by a public authority out of public funds or by a charity or by voluntary subscriptions; (e) in the case of such a drug supplied to her by a person responsible for the dispensing and supply of medicines at the hospital or nursing home, the sister or acting sister for the time being in charge of a ward, theatre or other department in such a hospital or nursing home as aforesaid; ….. may, when acting in his capacity as such, supply or offer to supply any drug specified in Schedule 2 or 5 to any person who may lawfully have that drug in his possession, except that nothing in this paragraph authorises - (i) the person in charge or acting person in charge of a hospital or nursing home, having a pharmacist responsible for the dispensing and supply of medicines, to supply or offer to supply any drug; or (ii) a sister or acting sister for the time being in charge of a ward, theatre or other department to supply any drug otherwise than for administration to a patient in that ward, theatre or department in accordance with the directions of a doctor or dentist. ….. (4) Notwithstanding the provisions of section 4(1)(b) of the Act, a person who is authorised by a written authority issued by the Secretary of State under and for the purposes of this paragraph and for the time being in force may, at the premises specified in that authority and in compliance with any conditions so specified, supply or offer to supply any drug specified in Schedule 5 to any person who may lawfully have that drug in his possession. ….. Production and supply of drugs in Schedules 3 and 4 9. - (1) Notwithstanding the provisions of section 4(1)(a) of the Act - (a) a practitioner or pharmacist, acting in his capacity as such, may manufacture or compound any drug specified in Schedule 3 or 4; (b) a person lawfully conducting a retail pharmacy business and acting in his capacity as such may, at the registered pharmacy at which he carries on that business, manufacture or compound any drug specified in Schedule 3 or 4; (c) a person who is authorised by a written authority issued by the Secretary of State under and for the purposes of this sub-paragraph and for the time being in force may, at the premises specified in that authority and in compliance with any conditions so specified, produce any drug specified in Schedule 3 or 4. (2) Notwithstanding the provisions of section 4(1)(b) of the Act, any of the following persons, that is to say - (a) a practitioner; (b) a pharmacist; (c) a person lawfully conducting a retail pharmacy business; …. may, when acting in his capacity as such, supply or offer to supply any drug specified in Schedule 3 or 4 to any person who may lawfully have that drug in his possession. Possession of drugs in Schedules 2, 3 and 4 10. - (1) Notwithstanding the provisions of section 5(1) of the Act - (a) a person specified in one of sub-paragraphs (a) to (j) of regulation 8(2) may have in his possession any drug specified in Schedule 2; (b) a person specified in one of sub-paragraphs (a) to (h) of regulation 9(2) may have in his possession any drug specified in Schedule 3 or 4; (c) a person specified in regulation 9(3)(b) or (c ) or (6) may have in his possession any drug specified in Schedule 3, for the purpose of acting in his capacity as such a person, except that nothing in this paragraph authorises - (i) a person specified in sub-paragraph (e) of regulation 8(2); (ii) a person specified in sub-paragraph (c ) of regulation 9(3); or (iii) a person specified in regulation 9(6), to have in his possession any drug other than such a drug as is mentioned in the paragraph or sub-paragraph in question specifying him. (2) Notwithstanding the provisions of section 5(1) of the Act, a person may have in his possession any drug specified in Schedule 2, 3 or Part I of Schedule 4 for administration for medical, dental or veterinary purposes in accordance with the directions of a practitioner, except that this paragraph shall not have effect in the case of a person to whom the drug has been supplied by or on the prescription of a doctor if - (a) that person was then being supplied with any controlled drug by or on the prescription of another doctor and failed to disclose that fact to the first mentioned doctor before the supply by him or on his prescription; or (b) that or any other person on his behalf made a declaration or statement, which was false in any particular, for the purpose of obtaining the supply or prescription. ….. Cultivation under licence of cannabis plant 12. Where any person is authorised by a licence of the Secretary of State issued under this regulation and for the time being in force to cultivate plants of the genus Cannabis, it shall not by virtue of section 6 of the Act be unlawful for that person to cultivate any such plant in accordance with the terms of the licence and in compliance with any conditions attached to the licence. Approval of premises for cannabis smoking for research purposes 13. Section 8 of the Act (which makes it an offence for the occupier of premises to permit certain activities there) shall not have effect in relation to the smoking of cannabis or cannabis resin for the purposes of research on any premises for the time being approved for the purpose under this regulation by the Secretary of State." In a reply in 1999 to a report dated 4th November 1998 of the House of Lords Select Committee on Science and Technology "Cannabis, the Scientific and Medical Evidence" (9th Report, 1997-98, HL Paper 151, Session 1997-98), the government said that it would welcome clinical trials into the therapeutic uses of cannabis, and was willing to license medical research and trials involving cannabis or the cannabinoids. The reply is printed as appendix 2 to a report of the Select Committee dated 4th March 1999 (2nd Report 1999). In a further report dated 14th March 2001 (2nd Report 2001), the Select Committee recorded the approval of Medical Research Council ("MRC") awards for two clinical trials, one a three-year study to assess the efficacy of cannabis extract and THC in the treatment of spasticity in sufferers from multiple sclerosis, the other a two-year study to assess their efficacy as post-operative analgesics. The MRC at the same time awarded over £600,000 to fund basic cannabinoid research. To date the licences granted and trials undertaken in relation to sufferers from MS and certain other types of pain have not led to any decision on the question whether or to what extent it might be appropriate to reschedule cannabis or any related product so as to permit any form of medicinal use, by moving it out of schedule 1 into another schedule of the Regulations and by other changes to the legislative scheme. The background to the domestic legislative position outlined above consists in three United Nations Conventions on international co-operation, described in Chapter 1 of the Runciman Report. The first, the Single Convention on Narcotic Drugs 1961, was itself a consolidating measure, and is subject to a protocol added in 1972. The second and third date from respectively 1971 and 1988. The 1961 Convention entitles party states to adopt "special measures of control" and to ban such drugs altogether "except for amounts which may be necessary for medical and scientific research only, including clinical trials ….." (article 2.5). The controls include limitations on manufacture, production, cultivation, importation and possession as well as requirement of labelling, keeping records, prescribing and safe custody. Activities contrary to the Convention were to be "punishable offences when committed intentionally" (article 36). Schedule IV to the 1961 Convention lists cannabis and cannabis resin among such drugs. The second convention, the Convention on Psychotropic Drugs 1971, lists substances whose use is to be prohibited by party states "except for scientific and very limited medical purposes by duly authorised persons, in medical or scientific establishments which are directly under the control of their Governments or specifically approved by them" (article 7(a)). The list includes cannabinol (except dronabinol). The very restrictive wording of this Convention prevents states from permitting the listed drugs to be made available on prescription. Under both the 1961 and the 1971 Conventions, any obligation to create punishable offences is subject to each state's "constitutional limitations". However, paragraph 8 of Chapter 1 of the Runciman Report indicates that, according to United Nations commentaries, the intention of these Conventions may not have been to cover activities of possession, purchase and cultivation when undertaken for personal use. The Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 (The Vienna Convention) supplements and strengthens the international scheme in this respect. Inter alia, it requires breaches of the conventions to be made criminal offences, and it requires that each party state establish as a criminal offence the possession, purchase or cultivation of illicit drugs for personal consumption. But it draws a distinction between the nature and severity of the sanctions which should follow from trafficking and from offences related to personal consumption. Sanctions are mandatory in the case of trafficking, but are "subject to [a state's] constitutional principles and the basic concepts of its legal system" in the case of possession, purchase and cultivation for personal use. Prior to the enactment of the Medicines Act 1968 (enacted following the thalidomide tragedy), there was limited control of only some medicines regarded as dangerous. In previous centuries cannabis and its derivatives were the subject of (largely undocumented) use in a medicinal context, but this appears to have died away by the earlier part of the last century with the advent of new and synthetic drugs. During the 1980s and 1990s there was renewed interest in the potential medical uses of cannabis and its derivatives. The Select Committee's report of 4th November 1998, to which we have referred, examined the position in some detail. It recorded that "Use of cannabis for medical purposes is sometimes connived at by the medical professions". It set out statements by, for example, MS sufferers as to its benefit as well as medical evidence which the Committee heard attesting to its analgesic property (chapter 5). In paragraph 5.10 the report referred to some evidence attested to by doctors that cannabis could be of benefit in relation to neuropathic pain, such as the phantom limb pain experienced by as many as 30% of amputees, for which there was no other satisfactory treatment. As to the potential risks of use of cannabis, the Committee observed that "Although cannabis is not in the premier league of dangerous substances, new research tends to suggest that it may be more hazardous to health than might have been thought only a few years ago" (paragraph 4.1). The report examined both the acute (short-term) effects (paragraphs 4.3-4.10) and its chronic (long-term) toxicity (paragraphs 4.13-4.24). It said that the former include slight impairment of psychomotor and cognitive function, important for example for those driving a car or operating a machine, and delusions and hallucinations capable of being misdiagnosed as schizophrenic illness, and that cannabis may also exacerbate the symptoms of those suffering from schizophrenic illness. The Committee concluded that "These relatively rare psychological effects of cannabis are not considered to represent a serious limitation on the potential medical use of the drug …., save that patients suffering from schizophrenic illness or other psychoses should be excluded. However, they do constitute an issue for public health. According to the Department of Health, cannabis contributes to the extra cost of acute psychiatric services imposed by drug misuse, although this cannot be separately costed .…". With regard to chronic toxicity, the Committee said that "Cannabis can have untoward long-term effect on cognitive performance, i.e. the performance of the brain, particularly in heavy users". The Committee also identified the consequences of smoking cannabis as the most important long-term risk associated with cannabis use, pointing out that cannabis smoke contains all the toxic chemicals present in tobacco smoke, with greater concentrations of carcinogenic benzanthracenes and benzpyrenes, and that regular cannabis smokers suffer from an increased incidence of respiratory disorders, including cough, bronchitis and asthma (paragraphs 4.17 and 4-18). The Committee examined the use of two cannabinoids, legally used as medicines in the United Kingdom. Nabilone is licensed and available on prescription, but little used since the development of other more powerful anti-nausea drugs in the 1980s. However, Dr Notcutt told the Committee of his use of nabilone for intractable pain, giving as many as 50% of the patients some pain relief, but involving for a significant number of patients unpleasant side effects (unpleasant psychoactive effects and drowsiness) and an overall success rate of about 30%. Dronabinol is not licensed in the United Kingdom, but is available for prescription on a named-patient basis, since it was moved to schedule 2 (paragraph 10 above). It has been licensed by the US Food and Drug Administration for the treatment of anorexia associated with AIDs, on the basis of clinical trials showing reduction of nausea, prevention of further weight loss and improved patient's mood. This was described by one medical witness to the Committee as "the most compelling indication" for cannabis-based medicine. The Committee's recommendations on the medical use of cannabis started by recognising "that, in all the evidence we have received, there is not enough rigorous scientific evidence to prove conclusively that cannabis itself has, or indeed has not, medical value of any sort" (paragraph 8.1). However, the Committee went on to say that they had "received enough anecdotal evidence …. to convince us that cannabis almost certainly does have genuine medical applications, especially in treating the painful muscular spasms and other symptoms of MS and in the control of other forms of pain" (paragraph 8.2). The Committee therefore recommended "that clinical trials of cannabis for the treatment of MS and chronic pain be mounted as a matter of urgency" (paragraph 8.3). It added that, recognising the dangers of smoking, it did not envisage smoking being used to administer any medicine ultimately licensed, and for that reason recommended research into alternative modes of administration. With regard to the Government's repeated statements that, if sufficient evidence in favour of cannabis as a medicine were produced for the Medicines Control Agency ("MCA") to be prepared to licence it, the government would amend the Misuse of Drugs Regulations to permit it to be prescribed, the Committee considered that "The problem with this policy is that it will take several years at least for this to happen" and "In the meantime 85,000 people in this country will continue to suffer the very unpleasant symptoms of MS" (paragraph 8.5). In the upshot the Committee recommended that the Government should at once take steps to transfer cannabis and cannabis resin from Schedule 1 to Schedule 2 of the Misuse of Drugs Regulations, so as to allow doctors to prescribe an appropriate preparation of cannabis, albeit as an unlicensed medicine and on a named-patient basis, and to allow doctors and pharmacists to supply the drug prescribed, with the incidental effect that research without a special licence would also be possible. The Committee said that its principal reason for this recommendation was compassionate, in that illegal medical use of cannabis was quite widespread, yet it exposed patients and in some cases their carers to the distress of criminal proceedings, with the possibility of serious penalties (paragraph 8.11). A secondary reason was the Committee's view that the law appeared to be being enforced inconsistently, and in some cases with a very light hand, bringing Parliament, the Committee thought, into disrepute. A further subsidiary reason was the encouragement of research. The Committee also recommended transferring the cannabinoids remaining in Schedule 1 to Schedule 2, although it did not regard this as a priority because it was not convinced that they had a convincing medical use, and it recognised that the 1971 Convention meant that international agreement would be required (paragraph 8.10 of the report and paragraph 14 above). The government's response to the Committee's report was an immediate rejection of the Committee's recommendation regarding cannabis and cannabis resin, In its explanation in the written reply referred to in paragraph 12 above, the Government referred to the "well-established procedure which prospective medicines have to go through in order to ensure their safety, quality and efficacy" and its view that "it would not be proper to allow cannabis to be prescribed by doctors before those characteristics have been scientifically established", a position which "the report admits …. has not been reached". The Government said that it "has very great sympathy for those whose conditions are not helped by existing medicine. But it sees no case for setting aside the controls which exist to protect the public and allowing doctors to prescribe, even on a named patient basis, raw cannabis with unknown standards of safety, quality and efficacy". It also expressed itself as "mindful of the implications for the totality of the controls on cannabis of allowing the prescription of raw cannabis before a medicinal form has been developed". As to cannabinoids, it said that, if it became clear that any cannabinoid other than dronabinol had therapeutic potential, it would seek amendment of the 1971 Convention to permit it to be placed in Schedule 2 of the Misuse of Drugs Regulations. The Select Committee in its report in reply dated 4th March 1999 said that the Government's main arguments had been considered in its original report and that it continued to find them unpersuasive, when cannabis was known to be safe in terms of acute toxicity, but using it presented risks from which its current users for medical purposes were unprotected. The Runciman Report in 2000 contained a further comprehensive review of the position and arguments relating to therapeutic use of cannabis. It recommended the transfer of cannabis, cannabis resin, and cannabinol and all its derivatives to Class C in the 1971 Act (a transfer which has since taken place – cf paragraph 7 above), as well as (in common with the Select Committee) a transfer of cannabis and cannabis resin from Schedule 1 to Schedule 2 of the Misuse of Drugs Regulations. The Report's overview reads: "We have also considered the issue of the therapeutic use of cannabis. We are in no doubt that the therapeutic benefits of cannabis use by people with certain serious illnesses outweigh any potential harm to themselves or to others. We have nothing to add to the detail of the report of the House of Lords Select Committee on Science and Technology. We are particularly surprised that one of the grounds for the Government's summary rejection of its recommendations should be anxiety about the capacity of GPs to withstand pressure for the prescription of cannabis when they have always been able to prescribe heroin for pain without any apparent problem. We do not consider that the relevant International Convention prevents the transfer of cannabis and cannabis resin from Schedule 1 to 2 of the Regulations, thereby allowing its prescription. We recognise that until the current research programme produces a cannabis plant with a standard dose of THC, the main psychoactive ingredient, rules will need to be devised to govern what is to be provided under prescription, and by whom. We do not see that as an insurmountable problem. In the interim, we have recommended a specific defence in the law in the event that a person is charged with possessing, cultivating or supplying cannabis for the relief of certain medical conditions." In relation to this defence, the Runciman Report recommended that the burden of proof should rest upon the accused. This would, it suggested, meet this country's international obligations and enable spurious defences to be rejected. The House of Lords Select Committee returned to the topic in its report dated 14th March 2001. Standing by its original report, it welcomed what it saw as "a more encouraging [governmental] attitude towards the licensing of therapeutic preparations of cannabis", if its quality, safety and efficacy were established. It considered that the treatment of therapeutic users by prosecutors and in court by juries was inconsistent (paragraph 14), that the acquittal by some juries of cannabis users brought the law into disrepute, and that it was undesirable to prosecute genuine therapeutic users who grow or possess cannabis for their own use (paragraph 18). It expressed concern about what it regarded as an "overly cautious stance" on the part of the MCA, which it considered placed "the requirements of safety and the needs of patients in an unacceptable balance" (paragraphs 29 and 27). The government in a response published in December 2001 emphasised that "the development and peer-review of high-quality clinical trials are processes which cannot be rushed, irrespective of the need, otherwise there is the danger that an inadequate trial design would result in a flawed clinical study", and it defended both its record in granting research licences and the MCA's record in relation to product licences. With regard to prosecutions, it observed that their number was small, that every case depended on its circumstances, and that inevitably there would be cases where a false or unsubstantiated claim of a therapeutic need would be made. It went on: "It is also important to remember that at each stage of the prosecution process, from the initial contact with the Police through to consideration by the courts, the scope for the exercise of discretion exists. While the law can make no distinction on the criminality of the possession of cannabis for recreational or therapeutic reasons, while the efficacy and safety of the latter remain unproved, the Government believes that the criminal justice system does allow for a sympathetic approach to the genuine therapeutic user." In March 2002 the Report of the Advisory Council on the Misuse of Drugs recommended the reclassification as a Class C drug, effected as from 29th January 2004 as referred to in paragraph 7 above, on the basis that cannabis was "less harmful" than other substances within Class B, while stating explicitly that "Cannabis is not a harmless substance and its use unquestionably risks harm to individual health and to society". The chairman's covering letter underlined this, adding that "the Council is anxious that the dangers associated with the use of cannabis preparations are widely known". The parties' cases The hearing of the five appeals started in October 2004 and was adjourned, in circumstances mentioned below, to February 2005. The appellants' representation at both stages was as follows: Mr Quayle and Mr Wales were represented by Mr Edward Fitzgerald QC (leading Mr Mytton and Mr Cooper respectively); Mr Taylor was represented by Mr Menon, Ms Lee by Mr Eissa and Mr Kenny by Miss Hodson. The Attorney General's Reference came before us for the first time in February 2005, when the Attorney General was represented by Mr Jonathan Rees and Mr Ditchfield by Mr Sutton. When the appeals first came on before us in October 2004, differences existed in the attitudes of both the Crown and the appellants in the various appeals. We observed that, while it was open to any appellant to argue whatever points seemed good to him or her, the Crown's attitude on general points of this importance ought to be consistent. We asked whether the matter had received attention at the highest level. It emerged after an adjournment that it had not been considered by the Crown Prosecution Service's Director of Policy, still less by the Attorney General. We were told that it was now desired to refer it to him, and that this would require a significant adjournment. We granted such an adjournment and further made clear that on the resumed hearing we wished to have a detailed exposition of and argument on the statutory scheme relating to control of drugs, which had not at that stage been put before us. When the appeals came back before us in February 2005, the Crown was represented in the cases of Quayle, Wales, Taylor, Lee and Kenny by fresh leading counsel, Mr Chawla QC, who had not been instructed in October 2004 and who served revised skeleton arguments, including one on the legislative scheme. Mr Chawla led Mr McGonigal in the appeals of Quayle, Wales and Kenny and Miss Hall in the appeals of Taylor and Lee. On behalf of the Attorney General in Ditchfield, Mr Rees, presented submissions supplementing and in some respects expanding those of Mr Chawla although not inconsistent with them. We have when summarising the facts in paragraphs 2 to 6 identified the general nature of the issues raised in each case. To recapitulate, the primary case advanced on behalf of Messrs Quayle, Wales and Kenny is that their cultivation or preparation (and use and possession) of cannabis were all excusable in law since they genuinely and reasonably believed that these activities were necessary to avoid them suffering serious injury or pain, and that the charges against them should have been left to the jury on that basis; alternatively, that, if such activities were only excusable in law if necessary to avoid serious injury (as distinct from pain), the judge .... for full transcript see here http://www.bailii.org/ew/cases/EWCA/Crim/2005/1415.html
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