The law up in smoke?

The Scotsman

Friday 23 Feb 2001

A mild evening in October and Daniel Westlake had just started cooking dinner, in the place in Tunbridge Wells he was house-sitting for a friend, when the doorbell rang. It was Kent police, with a warrant to search the house. Its owner had just been arrested in nearby Surrey for possession of cannabis . Within minutes, the police had also found a small amount of the drug in Westlake s room and arrested him too.

For Kent police, it was just another routine case of possession under theMisuse of Drugs Act 1971. Only forty-two grams of the illegal drug were found, enough for a couple of months supply. When the case got to court, in May last year, he was found guilty and was conditionally discharged.

Today, the 23-year-old administrative assistant, who works for a pensions firm in Kent, is going to the Court of Appeal, to argue under the Human Rights Act that he is not guilty. His case, if successful, could be the catalyst that unravels Britain s drugs laws.

"At the end of the day, I don t see that I have done anything wrong," says Westlake. "But I have a conviction that inhibits my ability to travel, my job choices and my life and I think that it is out of order."

Westlake happily admits that he is a regular cannabis user. He has even been cautioned twice for possession in the past. But his defence - that it is now illegal for the government to interfere unduly with the private life of an individual - has the potential to turn the government s drugs policy on its head.

Westlake will invoke Section 8 of the Human Rights Act, which essentially allows people to do what they like in their own homes, as long as it doesn't harm anyone else.

One of the highest profile cases in which this defence was used was under the European Convention of Human Rights in 1997. Three men, prosecuted during the notorious "Operation Spanner" investigation into a group of sadomasochists, attempted to defend their right to inflict pain on each other for sexual pleasure.

However, by ruling that Britain was right to prosecute the men, the European Court of Human Rights confirmed limits to rights of privacy. The government had insisted that sadomasochistic acts, even if consensual, could cause harm to others.

David MacLean, a former Home Office minister and Tory MP for Penrith and the Border, believes that the cannabis cases will fail in a similar way.

smoke it, then that s fine. But the trouble is, with cannabis and other drugs it is not confined to consenting users. The innocent get sucked into it. These cannabis users don t sit in their own homes and smoke joints. They go to parties and discos and young people become involved. It spreads."

Indeed, there is a more sinister wing of the pro-drugs lobby following Westlake s case with interest. This group wants to legalise not just cannabis but all drugs including heroine and crack cocaine.

"If the Human Rights Act is paramount for cannabis, it should be the same for all drugs," says Danny Kushlick, of Transform.

There are currently half a dozen cases like Westlake s going through the U K courts. All concern cannabis. Many of them will argue their innocence on the ground of medical necessity. Others will argue simply that it is their right to do what they like behind closed doors.

One such case is that of Jerry Ham, a cannabis user in London. He is being represented by human rights group Liberty. Mary Cunneen, a solicitor for Liberty, believes that Ham has a strong case. "In our opinion prosecuting an individual for possession of cannabis does breach the Act. Jerry Ham is defending himself on the basis that it is a breach of Article 8 of the Human Rights Act, which deals with the respect for private life."

Ham, founder of the homeless charity, Groundswell, was arrested when a London policeman noticed a torn Rizla paper in the van he was driving, stopped and searched him. He was arrested for carrying 3 grams of the drug. But when he was later offered a caution, he refused.

"I am a cannabis user," says Ham, "But I don t believe I should be imprisoned for it. I even bought my cannabis from an ethical source, with no links to any criminal hierarchy. I fundamentally believe that personal use should be decriminalised and I think we have a tight legal argument which will prove it."

Ham, Westlake and the campaigners who support them may be optimistic. But is the British legal establishment really prepared to give free reign to pot smokers?

They talk of a liberalising of attitudes surrounding use of the drug. They quote MPs of every political hue including Mo Mowlam, Nick Ainger and Francis Maude who have admitted using cannabis. And they point to other European countries, where the police and the courts no longer prosecute individuals for possessing small quantities of the drug.

However the Home Secretary Jack Straw, whose own son was caught dealing cannabis, has made it clear that he has no interest in relaxing the laws on the drug. Both he and Tony Blair have been unwavering in their refusal to soften their hard line. It is the government s stance that any relaxation of the law would send out the wrong message to young people.

And many people, even from within the civil rights movement, feel that the courts are a long way away from accepting change. John Scott, chairman of the Scottish Human Rights Centre, says that the cases have "a snowball s chance in hell" of succeeding.

"I can see it happening several years down the line," says Scott, "but I don t think we are at the stage where the courts are ready to say You can do whatever you want to yourself in your own house, behind closed doors ."

Scott believes that, if anything, a challenge of the charge of possession of drugs for personal consumption under the Human Rights Act would stand more of a chance north of the Border.

"In Scotland judges have tended to take a pro-rights of the accused individual stance and in England they have tended to take a pro-rights of society stance," he says. "So if anywhere, you would think that Scotland would be more likely to accept the argument. But I don t think that courts in Scotland or England are ready to say that whatever goes on behind closed doors is okay. It is too big a leap."

Ultimately, it is the court which will decide. But cannabis campaigners have taken great solace in the advice recently given by a judge to Rastafarians, who smoke the drug as part of their religion. Last month, a Rastafarian s argument that using and selling the drug was his legal right was rejected at Inner London Crown Court. However, Judge Charles Gibson urged Rastafarians to consider whether a High Court challenge under the Human Rights Act might allow them the right to use the drug. Such a move, he says, could result in an important declaration that the UK drug laws and the freedoms protected by the recently enacted Human Rights Act were "incompatible".

Former barrister, Roger Warren-Evans, who is now on the council of Liberty, is confident that the cannabis campaigners will win. He also believes that the result will provide an opportunity for the government to reform its drugs policy without losing face.

"The CPS know that they would lose a case of simple personal possession under the Human Rights Act, so they are trying not to get it into court," he says. "It is not a crime to put weedkiller in your own mouth and commit suicide, so why should it be a crime to take drugs? They will get caught out on this one and they will have to redesign the whole system and introduce some sort of system of legalising a limited supply. Politically, it could be a blessing in disguise. The politicians will be able to say that they continue to disapprove but that they have to abide by the courts. It would provide them with a superb, ice-cold cover for reforming the drugs laws."

The implications of a declaration that UK drug laws and the human rights legislation are incompatible are deadly serious. If the cannabis campaigners are successful it could pave the way for a legal battle to decriminalise other, harder drugs.

Meanwhile, Kushlick and colleagues are planning a test case which hebelieves may make it impossible for anyone to be imprisoned for possession of any illegal drug. "You are allowed to kill yourself with alcohol and tobacco," he says, "so why not any other drug?"