19 Sep Definitive Legal Advice On Medicinal Cannabis In The UK

Ever since CLEAR adopted its new aims and objectives in 2011, our campaign for access to medicinal cannabis has been our principal focus. Early on we identified the possibility of mounting a legal challenge to current policy and through a tortuous and convoluted route, we have finally arrived at a conclusion.

Cannabis is a class B drug, providing a penalty of up to five years in prison and a unlimited fine for simple possession. It is also in schedule 1 so it has ‘no medicinal value’ according to the UK government, a position that is obviously contradicted by the approval of Sativex. There is no doubt that the Home Secretary’s re-scheduling of Sativex in schedule 4 was dishonest. It was probably also unlawful. Unfortunately, any legal challenge is now out of time, would have been hugely expensive and could also have risked the real benefit that Sativex provides, even if only to a few fortunate people. However, we have discovered through expert legal advice that further legislation on cannabis was introduced in 2001 which specifically prohibits doctors from prescribing it.

This means that cannabis has been identified for particularly stringent control. The legislation introduced in 2001 was the Misuse of Drugs (Designation) Order 2001. As well as cannabis, it also applies to mescaline, LSD, coca leaf, cathinone, raw opium and DMT. This Order, also known as a Statutory Instrument, was made by then Home Secretary, David Blunkett MP, on 13th December 2001. In theory it could have been challenged by judicial review proceedings within three months but that opportunity is now well past.

This additional layer of legislation seems to have slipped under the radar of everyone and every organisation involved in in drug policy reform. Even those specialising in drug law seem to have missed its significance. It sweeps aside the ‘prescribing rights’ which doctors have enjoyed since time immemorial.

Quite why this Order was made is difficult to understand. It obviously has nothing to do with science or medicine. By 2001, the evidence for the benign nature of cannabis and its efficacy as medicine was already overwhelming. Indeed, only two years later, Blunkett downgraded it to class C. Understanding of the endocannabinoid system was developing fast and GW Pharmaceuticals was already three years into its research on the medicinal properties of the plant. The reasons can only have been political – specifically and cruelly to deny medicinal use. Perhaps it was connected with the explosion in medical marijuana in the USA? This started in California in 1996 and by 2001, Oregon, Maine, Nevada and Colorado had already followed suit. Clearly someone, more likely a civil servant than a politician, had decided that preemptive action need to be taken to ensure that medicinal cannabis was firmly and absolutely denied.

 

CLEAR Applies For Cultivation And Import Licences.

We first applied for a licence to cultivate high-THC cannabis in the name of Des Humphrey, then a member of the CLEAR executive committee. This was refused and with the assistance of Darryl Bickler, a solicitor and founder of the Drug Equality Alliance, in November 2011 we issued an application for permission for judicial review of the Home Secretary’s refusal to issue a licence.

Unfortunately, this attempt quickly fell apart. Des didn’t submit his legal aid papers in time. The Treasury Solicitor, acting on behalf of the Home Secretary, mounted an extremely aggressive defence and tried to land Des with a huge costs bill. Understandably, Des was intimidated which, of course, was exactly what was intended. Then Darryl Bickler had problems with his practising certificate and so we made a swift, orderly retreat. Due credit must go to Darryl for rescuing Des and negotiating away the claim for costs.

Simultaneously, we had already started making applications on behalf of CLEAR members for personal import licences to bring in Bedrocan medicinal cannabis from Holland. This proved surprisingly successful. We know from member feedback that at least hundreds, if not thousands of doctors are tacitly supporting their patients’ use of cannabis. By the autumn of 2013, five CLEAR members had successfully obtained prescriptions from their doctors for Bedrocan. We applied for import licences on their behalf while simultaneously they contacted Dutch pharmacies to enquire whether they would fill a UK doctor’s prescription.

All five members successfully travelled to Holland, obtained their medicine and returned to the UK, openly declaring their medicine at customs. The sixth person, George Hutchings, had his medicine seized and despite our best efforts, an appeal and a request for restoration on an outward journey to Holland have failed.

 

Legal Advice

George Hutchings is a brave and determined warrior for the cause of medicinal cannabis. Few people combine his courage with the wisdom to take a measured and responsible approach. He was the ideal person to take this issue forward.

We made contact with Ben Cooper, a barrister from Doughty Street Chambers, who has established a practice in cannabis and drugs cases. Working with him and his clerk we spoke to various solicitors, also specialising in the area. The particular difficulty was that both with regard to the law and to funding any action, this was to be a civil case, not criminal. Legal aid would be much more complicated to obtain.

Eventually, the London firm of Bindmans agreed to take on the case. It is a top tier firm of solicitors with a reputation for being at the cutting edge of legal developments- particularly in relation to human rights issues. A specialist in public law, Jamie Potter, was appointed and he briefed Ben Cooper to advise.

Bindmans’ ‘Instructions to Counsel to Advise’

Ben Cooper’s ‘Advice on Merits’

Bindman’s ‘Final Advice Letter’