Effectively, Growing Your Own Has Been Decriminalised. We Are FREE!

    CAUTION.  The possession, cultivation, production, supply and importation of cannabis remain illegal.  CLEAR neither condones nor encourages the breaking of any law.  This article is our interpretation of the Sentencing Council drug offences guidelines as they relate to cannabis. Do not rely on our interpretation. You should take professional legal advice if you have any concerns.

    A CLEAR Interpretation Of The Sentencing Council Drug Offences Guidelines Concerning Cannabis

    Drug Offences. Definitive Guideline document

    Drug Offences. Response to Consultation document

    1. Section 125(1) (a) of the Coroners and Justice Act 2009 provides that:

    “Every court – (a) must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.”

    The guideline will apply to all offenders aged 18 and older, who are sentenced on or after 27 February 2012, regardless of the date of the offence.

    It seems therefore that while these are “only” guidelines, the courts are obliged to follow them or, presumably, sentences outside these guidelines would be subject to appeal on those grounds alone.

    2. So the government, yet again, tinkers around the edges of a badly implemented interpretation of a mechanism designed to reduce harms from drugs.  The whole of the current drugs policy is in a total mess  and needs restructuring from the bottom up.  As Prof Nutt recently told Sky News:  “The drug laws are not based on any kind of sense or evidence so any sentencing for drugs is questionable. What we should be doing is properly revising the drug laws so that the sentencing is proportionate to the harm of drugs

    However, we are where we are and, all things considered, these new guidelines appear to be a major step in the right direction generally for small scale home growers and specifically for small scale home grow medicinal users.

    3. A key statement appears in the Response to Consultation document, question seven –  “Should “medical evidence that a drug is used to help with a medical condition” be included as a mitigating factor for possession offences?”

    There was resistance to this suggestion from CPS and ACPO but the conclusion was stated as follows:

    “…..numerous other consultees, including the International Drug Policy Consortium (IDPC), the Magistrates Association and Drugscope, referred to evidence of the medical bene?ts that the active ingredients of cannabis have in the treatment of conditions associated with Multiple Sclerosis and some forms of cancer. It was suggested that if the offender can bring to court evidence that they have been attempting to obtain the drug by legal means and written evidence from their medical practitioner that the use of the drug can alleviate the symptoms of their illness, then this should be a convincing mitigating factor. Some respondents, including the Advisory Council on the Misuse of Drugs (ACMD) and the Council of Circuit Judges, were keen that the mitigation should also include cases where the offender believes that cannabis is helping with his or her medical condition but in  reality it is having no or only a placebo effect. The Council agrees that where cannabis is used to help with a diagnosed medical condition this should serve as a mitigating factor. The following wording will be included at Step 2 in the de?nitive guideline: “Offender is using cannabis to help with a diagnosed medical condition”.”

    However, the specific phrase  “Offender is using cannabis to help with a diagnosed medical condition” only appears at step two in the possession section of the guidelines document under “Factors reducing seriousness or reflecting personal mitigation”. For all other sections this is the only reference to medical usage which is contrary to the implication of the statement in the Response to Consultation document.  The apparent inconsistency and contradictory nature of these statements is a little worrying.

    But assuming that possession and cultivation go hand in hand maybe the anomaly above can be ignored. So for medicinal users this mitigation requires a little bit of forward thinking by those affected.

    4. Firstly, to prove you have been attempting to “obtain the drug by legal means”, approach your GP and ask for a Sativex prescription for your “diagnosed” medical condition.  It will probably be refused either on applicability or cost grounds. If you can, persuade your GP to record that you use cannabis and find it highly effective and safe and there are no apparent adverse effects. Even if  your GP does not agree that it is having a beneficial effect, the guidelines recognise the “placebo effect” – if you beligve it is working for you, that is enough.  However, if your GP ticks the ‘cannabis user’ box on the patient database it will automatically flag you up as a drug abuser so ask your GP to note that there is no “abuse” in your case.

    Secondly, enquire about a private prescription and get costs – these of course are prohibitive and beyond the financial means of the majority, compared with street prices.

    Thirdly, write to the Home Office and explain that, to avoid breaking the law, you would like an import licence for Bedrocan. Again this will be refused by letter.

    From the wording it appears that there may be a degree of wriggle room even without the above evidence but they do choose their words carefully and the word “diagnosed” is key, so make sure your diagnosis is recorded by your GP.

    5. The guidelines for Production/Cultivation  are:

    Lesser role ‘if own operation, solely for own use (considering reasonableness of account in all the circumstances).’

    Category 3 : 28 plants (domestic operation with assumed yield of 40g per plant):  Sentence range – Low level community order (see Annex 1) > 26 weeks’ custody

    Category 4 :  9 plants (domestic operation with assumed yield of 40g per plant):  Sentence range – Discharge > medium level community order (see Annex 1)

    6. There are also guidelines for importation and supply which set a limit of 100 grams:  Sentence range – Band B fine (see Annex 2) > medium level community order (see Annex 1).

    This could relate to importing Bedrocan from Holland or a group of friends “clubbing together” in much the same way as the cannabis clubs operate in Spain.

    7. The guideline for possession will no longer take any account of quantity: Sentence range – Discharge > 26 weeks custody

    The important point about these sentencing guidelines is that penalties have been reduced to such a level that I doubt whether the CPS will be interested in pursuing such cases, particularly not against medicinal users.  Therefore, the police won’t be interested.  These remain offences but with a little common sense and discretion we can now be free of the fear of persecution for growing and using cannabis.

    CAUTION.  The possession, cultivation, production, supply and importation of cannabis remain illegal.  CLEAR neither condones nor encourages the breaking of any law.  This article is our interpretation of the Sentencing Council drug offences guidelines as they relate to cannabis. Do not rely on our interpretation. You should take professional legal advice if you have any concerns.

    My grateful thanks to Chris Stevens for his invaluable help in preparing this article.

    • http://twitter.com/WeedBaker Mark Baker

      Q: Why does it have to be so complicated and convoluted? 

      A: Because they know it’s inherently wrong.

      The way this laws been written is a like a child giving an excuse for a wrong-doing… over complicated and not really answering the question.

      Anyhow, with any luck this lot will be thrown out at the end of the year when they announce the findings of the current inquiry. I’d like to think they’ll start with decriminalisation of cannabis (and perhaps all drugs?), then (in an ideal world!) slowly legalise and control all currently prohibited substances.

    • http://www.facebook.com/johnnerush John Nerush

      Peter, sorry for being dim but I want to clarify something,

      By the fact that courts are supposed to follow the guidelines is it reasonable to assume that the production of up to 9 plants for obvious (and evident) medical/personal use it likely to involve nothing more than a fine/community order?

    • http://www.peter-reynolds.co.uk Peter Reynolds

      That’s the maximum you should get even without proving medicinal use.  With medicinal use the sentence will be lighter – probably a discharge.

    • http://www.facebook.com/people/Darryl-Bickler/1556398261 Darryl Bickler

      Someone has been smoking crack – not a word of truth in this highly irresponsible dross of an article. Really it should be reported as incitint people to break the law – not a shred of truth in it.

    • http://www.facebook.com/people/Derek-Williams/1072934911 Derek Williams

      Whilst I think Peter and Chris are right in the conclusions they’ve drawn, I would seriously advise not rushing in to anything. There are bound to be test cases and we won’t really know how it’s all going to work until the dust settles, six months down the road things will be a lot clearer.

      But of course, given the likelyhood of a discharge for small scale growing, are the plod really likely to put much effort into busting hobby growers now? It certainly looks good.

    • http://www.facebook.com/people/Jasper-Knight/544359047 Jasper Knight

      “Really it should be reported as incitint people to break the law ”

      “CLEAR neither condones nor encourages the breaking of any law.”How did you draw that conclusion?

    • http://www.facebook.com/people/Darryl-Bickler/1556398261 Darryl Bickler

       Because numerous fools have already lept to that false conclusion, asking if its true, perhaps spurned by the insane header that includes the expression “Growing Your Own Has Been Decriminalised. We Are FREE!”

    • http://www.facebook.com/profile.php?id=577342614 Commonly Known As Mark

      You sir would sell your granny up the nile. YOU ARE BAD FOR THE CANNABIS MOVEMENT!.

    • http://twitter.com/monster1709 Debbie Doherty

      http://www.u.tv/News/Cannabis-grown-using-online-guidebook/e5185cdf-ee17-42b0-888a-05d51578f5ac
      now that the court accepts there is a medical need defense then all you need do is say you suffer from any ailment that can be helped by cannabis the proof is all over the internet the idea that the average cannabis user would remember to get all those forms in correct order before he has a toke is a little silly  this woman did not have any proof of any medical need but it was still accepted by the court and a lot of people do not trust  doctors when it comes to cannabis because they are frightened by what their medical records could be used for at a later date. 

    • http://www.facebook.com/people/Derek-Williams/1072934911 Derek Williams

      Regards the headline, it does say “Effectively, Growing Your Own Has Been Decriminalised. We Are FREE!”, that is a very important “effectivley”. Nothing has actually been decriminalised, but the pemalties have been reduced to such a low level (for non-problem use by over 18’s in private) that it’s not far off for heavens sake.  Read the red text, it’s important, which is why its red.

      One issue that I’m not at all happy about it is that all this only applies to people over 18. What about kids <18? Are they to be subjected to more stiffer criminal laws than adults?

    • http://www.facebook.com/people/Darryl-Bickler/1556398261 Darryl Bickler

       Not far off???? Holy crap, neighbour snitching, copter monitorring, its still a criminal offence, doors smashed in, crops, stash and equipment seized and destroyed, probably personal things phones computers taken, arrest and interview under caution, charging, prosecution at court, probation reports, disclosure, punishment (albeit lesser than before), and criminal record, and you are saying for heavens sake we are free. OMG. This is about mitigation for sentencing purposes only – there is no material change in the law and that’s why this is the most irresponsible piece of journalism I have seen in ages.

    • Anonymous

      If you “Don’t tell, Don’t smell & Don’t sell” then effectively nothing has changed at all.

      A band-c fine and/or CS for a drugs conviction will still knacker your CRB check and stop you travelling to several countries.

      and you’ll be shoved up a band when you harvest as the lowest possession limit is 100g and with one plant most growers would break that limit.

    • http://www.peter-reynolds.co.uk Peter Reynolds

      Yes but I doubt that there will be any enforcement effort against such growers. That is the important point.  Unless the police have some evidence or suspicion that you are growing for commercial reasons, they aren’t going to bother.

      Be discreet, sensible and cautious.

    • Anonymous

      The bit I can’t get my head around is the  ‘ 9 plants (domestic operation with assumed yield of 40g per plant)’ = 360gm but their is no amount mentioned for actual possession. But 9 mature plants will, I assume, probably yield more than 40gm per plant?  So after harvest there will be a quantity of dry herb but no plants in sight.  How will this equate to 9 plants worth??

    • Anonymous

       “unless the court is satisfied that it would be contrary to the interests of justice to do so.”
      That is one big caveat right there….

    • http://www.peter-reynolds.co.uk Peter Reynolds

      Relentlessly negative as ever Flux!

      Do you ever smile?

    • http://www.facebook.com/profile.php?id=568116969 Nigel Burke

      “The guideline will apply to all offenders aged 18 and older, who are
      sentenced on or after 27 February 2012, regardless of the date of the
      offence.”

      I really want this to be true. Is it?

    • steve auvache

       How does the government arrive at the figures it uses?  Start with the easy question please.

      The medicinal user requires a steady flow of consistent quality.  If grown indoors at home (which is going to be the way for most urban dwellers) then a continuous cropping system with 1 modest plant taken every 10 days or so is as good a model as any to use to ensure their needs are met.

      Differences exist as to the precise definition of terms such as modest and in the end they have come up with a figure they think will work for all. 

      Better still if we can persuade them that the real difference is between personal consumption and supply but in the mean time we can tell them that what they have done is a good effort but 12 plants would give much more flexibility and choice in growing (and thus efficacy) styles.

    • http://www.peter-reynolds.co.uk Peter Reynolds

      Believe me, they’re not even attempting to look at it on the sort of rational basis you describe!

      They see the issue from an entirely different perspective of control and punishment.  The only way to deal with the Sentencing Council  is to present arguments that work in their terms.

    • steve auvache

       I know that but I also know that they do not operate in isolation and for all we might wonder how they arrive at a figure the fact that they have is is a good thing

      THEY are thinking about it and it seems they are looking for ways to address it and are right now in the process of having a little tinker here and there and hopefully taking note of what happens.

    • sam armstrong

      hello,could someone tell me if this sentencing guideline is also applicable to scotland?scottish law is different but is sentencing guidelines?if it is i am moving south sharpish.

    • Anonymous

      No it is not applicable in Scotland.

    • http://www.facebook.com/profile.php?id=509208914 William Anderson

      While I’m looking forwards to the day I can happily grow a plant or two (as a non-using legaliser) I still see criminal records in all of this.

      They might find you guilty and give non-custodial sentences… but it’s not the custodial part that’s the issue, it’s the criminal part.

      If you’re found guilty of possession or cultivation and given the most gentle of slaps on the wrist, it still has implications for anyone working in a field that requires CRB checks, anyone looking for careers where a criminal record may cause problems and anyone who wishes to travel internationally to places like Australia, the USA and other places that consider convictions when deciding who to allow through the border controls.

      Cannabis seems like it’s becoming a noisy issue now, though. And THAT is something I’m very, VERY happy to see. Someone as high profile as Mr Branson speaking out so publicly is wonderful to see and can only help matters.

    • http://www.facebook.com/profile.php?id=509208914 William Anderson

      Also – what happens to repeat/persistent offenders?

      So you grow your crop, get arrested, charged, tried and found guilty. You’re discharged and start from scratch (because of course, your lights, fans and plants have all been confiscated) and then what? Another light slap on the wrist or increasingly severe punishments for people who continue to break the law?

      Sorry to be gloomy, but until cannabis is declassified and can be grown or used without the worry of police dragging you from your home and to it’s only a step in the right direction but still nowhere near the destination.

      …but PROGRESS. :)

    • steve auvache

      Why should there be repeat offenders?

      If I can demonstrate to them now that I am growing only for my personal use as medication, what profit is there for them to come back in the future when I am still all that and in addition, old?

       

    • Anonymous

      All the comments above about such things as CRB checks are correct, a criminal record is a criminal record, no matter how low the penelty etc. However, a discharge? I would have thought that would not be a criminal record? A discharge is not a zero rated criminal chrage, is it?

    • Anonymous

      This good news. Over the years i have collated all my documents, hospital letters advising i try sativex, home office letter saying ask for sativex, letter from my MP on side.
      Come nick me for me grow im starting soon 

    • Anonymous

      :} All the time. 
      I have experience of the legal system that nearly left us on the street, all due to 7 plants.
      You know how they work….

    • Anonymous

      No you will still have a criminal record. If we are free and cannabis is effectively decriminalised can we expect Clear to put someone forward to test this come the end of February? Say get Peter set up with a 9 plant grow and invite the police over for an inspection?

    • http://www.peter-reynolds.co.uk Peter Reynolds

      Have you read the warning in red at the top and bottom of the article?

    • Anonymous

      Yes I did read your disclaimer. But if you stand by what you have said then why not?

    • http://pulse.yahoo.com/_CDO5E7CXVEUUQ2JUHFP254YJ5A Kevin

      I would suggest that simply approaching your GP and requesting a Sativex prescription for your medical ailment, whether it will act as a placebo or not, is all that is required in terms of proving an attempt has been made to acquire cannabinoids legally. Anything further on the part of the individual goes beyond what is expected as reasonable in law.

      It may help to provide some supporting information, studies, research etc to assist your GP – in the UK they are certainly lacking in knowledge about the endogenous cannabinoid receptor system and the therapeutic application of non-endogenous cannabinoids. 

    • http://www.facebook.com/people/Dan-Ford/1450969824 Dan Ford

      I’ve ordered my seeds already, AK47 has been recommended to me as a good therapeutic breed. At the crack of midnight 26/27th February they will be planted. I am sick to death of the lack of effective medications and if I have to stick my neck out and be one of the first test cases, so be it. However I fully trust that the police will act in a sensible way come that date and simply leave us alone, as the guidelines would seem to imply that that is the best course for them. If however this does come to court then, to quote Bob Marley “We are confident in the victory of good over evil”

    • Anonymous

      THIS IS NOT LEGAL ADVICE
       
      While I’ve been unable to pin down the CPS policy on this level of offence so I can’t confirm they will not have an interest in this is does seem very unlikely. The police are not bound by CPS policy when they come to charge people but they are heavily influenced by it.
       
      I was speaking to a junior criminal barrister (this means they are not a QC, not that they are actually “junior” as most people would understand the word) about this issue yesterday and she (who shall remain nameless) explained that in her view the CPS would not proceed with this charge on its own on policy grounds. It would not be regarded as a cost effective exercise. However, it may be used as a lesser charge to get people to plead guilty to if they have been caught on a more serious offence. Essentially this now exists as a quick way to secure a conviction where it would be difficult to get a more sever one.
       
      One thing I would add which you should all be aware of is that repetition of the same or similar offence is a aggravating factor so you might get off once, but if they do charge and convict you first time, the second, third, fourth, etc may still lead to a more severe sentence.  There are other factors which may be aggravating so be careful.

    • http://www.facebook.com/profile.php?id=568116969 Nigel Burke

      Can anyone answer this question please? I need to know because I’ll be in court soon, and if it’s going to apply to me I want to postpone my trial.