16 Jun Sentencing Council, Drug Offences Guidelines. Response To Public Consultation

The Sentencing Council’s consultation document is here.

The following is CLEAR’s submission in response.

Sentencing Council
Drug Offences Guidelines – Response to Public Consultation
Cannabis Law Reform 15-06-11

This response is submitted on behalf of Cannabis Law Reform (CLEAR), a registered UK political party and its members.

CLEAR’s aims and objectives are:

1. To end the prohibition of cannabis.
2. To promote as a matter of urgency and compassion the prescription of medicinal cannabis by doctors.
3. To introduce a system of regulation for the production and supply of cannabis based on facts and evidence.
4. To encourage the production and use of industrial hemp.
5. To educate and inform about the uses and benefits of cannabis.

We recognise that the Sentencing Council is concerned only with the law as it stands. We do not seek to address you with any suggestions about changes in the law. Our concern is to provide you with information to assist in developing sentencing guidelines for cannabis offences. In particular, we seek to provide information about the medicinal use of cannabis and how this should be a very substantial mitigating factor. In some instances we suggest that it should mean any sentence should be no more than an absolute discharge.

Q1. We do agree with the Council’s approach of separating classes B and C.

Q2. We recommend that medicinal use of cannabis should be a mitigating factor in all offences.

Please see the appendix “Medicinal Use of Cannabis” for further information.

For all offences, evidence that cannabis is for medicinal use should substantially reduce sentences. In the most clear cut cases where, for instance, the offender has a doctor’s prescription, recommendation or evidence of medicinal use from a medical professional, the sentence should be an absolute discharge.

Sativex, an MHRA approved medicine, is a tincture of cannabis and pharmacologically identical to cannabis. Many people who have requested the medicine have been refused it because their PCT or health authority will not fund it. In these cases, for all offences, they should be dealt with as leniently as possible.

Importation Offences

16 US states now permit the use of medical marijuana based on a doctor’s recommendation. Most countries in Europe with the main exceptions of the UK and France now permit doctors to prescribe cannabis. Israel also permits the prescription of cannabis by doctors.

Residents of any EU country where doctors are permitted to prescribe cannabis are entitled to import cannabis into the UK and to possess and use it without restriction under the protection of a Schengen Certificate.

In particular, the Dutch government contracts exclusively with Bedrocan BV for the cultivation of medicinal cannabis which is widely exported all over Europe.

Any offender with a doctor’s prescription, recommendation or evidence of medicinal use, or who can show that the importation is for medicinal use by someone with a doctor’s prescription, recommendation or evidence of medicinal use, should receive an absolute discharge.

Supply Offences

Any offender who can show that the supply of cannabis is for medicinal use by someone with a doctor’s prescription, recommendation or evidence of medicinal use, should receive an absolute discharge.

Production/Cultivation Offences

In our experience, all cases involving the cultivation of cannabis are now charged as production offences under the trafficking section of the Misuse of Drugs Act 1971 (MoDA). There appears to be no rationale for this, except that it provides for more severe sentences. The decision as to which charge to bring is for the prosecution but clear guidelines should be given for sentencing based on the number of plants.

Also, the state of maturity of the plants should be considered. Usually, cannabis will be cultivated on a continuous basis so that there will be plants at various states of growth from seedling to mature. Clearly it would be unjust to give the same sentence for 10 or 20 seedlings a few inches high as for 10 or 20 mature plants, each of which may provide between 10g to 75g of useable cannabis.

Our proposal is that 12 mature plants per person should be regarded as the maximum for personal use. Seedlings which show no sign of flowering are not useable cannabis and should be disregarded. At 12 plants or fewer, any offender with a doctor’s prescription, recommendation or evidence of medicinal use, or who can show that the cannabis is for medicinal use by someone with a doctor’s prescription, recommendation or evidence of medicinal use, should receive an absolute discharge.

Q3. We do agree with the different approaches taken for determining the seriousness of the offence for each of the drug guidelines.

Q4. We agree that someone possessing any quantity of drug in a prison should receive a more severe sentence provided that anyone entering prison with a drug addiction or dependency has been provided with appropriate healthcare interventions.

Q5. We agree with the quantities specified for importation and possession given the medicinal mitigation that we set out above. We recommend the adoption of similar categories for production/cultivation offences. Specifically for cannabis we recommend that offenders with 12 mature plants or fewer should be in the lowest category.

Q6. For cannabis production/cultivation offences we believe that only mature plants should be considered an offence. Seedlings which show no sign of flowering are not useable cannabis and should be disregarded. Prosecutors would be free to bring attempt charges if large quantities of seedlings are discovered.

Q7. The evidence for the medicinal benefits of cannabis is now overwhelming. It is not mixed at all. Please see the appendix “Medicinal Use of Cannabis” for further information. Sativex, which is a cannabis tincture is now an MHRA approved medicine. For all offences, evidence that cannabis is for medicinal use should substantially reduce sentences. In the most clear cut cases where, for instance, the offender has a doctor’s prescription, recommendation or evidence of medicinal use from a medical professional, the sentence should be an absolute discharge.

Particular consideration should be given to offenders suffering from conditions such as multiple sclerosis, Crohn’s disease and fibromyalgia where the pharmaceutical products usually prescribed are highly toxic to the liver. In many cases, a few years of this therapy will inevitably result in the destruction of the liver and cananbis represents a non-toxic alternative. In these cases offenders should be dealt with as leniently as possible.

Q8. We agree with the types of offenders described except in the case of production/cultivation of cannabis where we recommend a slightly different model as set out below.

CLEAR identifies four groups of people involved in the cultivation/production of cannabis.

A. People growing cannabis for their own medicinal use.
B. People growing cannabis for their own non-medicinal use
C. People growing cannabis for commercial purposes
D. People growing cannabis under pressure, intimidation, coercion or duress or who have been trafficked for the purpose.

There is undoubtedly some crossover between these groups and people growing for their own use may be involved in some limited social supply.

There should be no question of a custodial sentence for anyone in groups A, B and D.

Where cultivation/production of cannabis involves the theft of electricity, destruction of property or other offences these should be dealt with separately.

We make no comment on the sentencing ranges proposed for non-cannabis offences.

The sentencing ranges proposed for cannabis are brutal and entirely disproportionate for a substance which is scientifically proven to be hundreds of times less harmful than alcohol, tobacco, over-the-counter and prescription only medicines and all other drugs controlled under the MoDA.

In fact, the MoDA describes its purpose when it says that the Advisory Council on the Misuse of Drugs (ACMD) should “keep under review the situation in the United Kingdom with respect to drugs which are being or appear to them likely to be misused and of which the misuse is having or appears to them capable of having harmful effects sufficient to constitute a social problem”

As the harmful effects of cannabis are several orders of magnitude less than alcohol, tobacco, most medicines and all other drugs controlled under the MoDA, it is difficult to see how they could constitute a social problem. Indeed, in the case of medicinal use the effects of cannabis are clearly very beneficial. Sentences should therefore properly reflect these facts in accordance with the MoDA.

Where cannabis is for personal and/or medicinal use with some limited social supply there should be no question of a custodial sentence for anyone. It is clearly a victimless “crime” and is only defined as a crime by statute.

Q9. Cannabis “crimes” are generally victimless except when involving children. With more proportionate sentencing for adults we would support more severe sentences for offences involving children.

It may be thought that other victims include electricity companies, landlords or growers under category D above. These though are not victims of cannabis “crimes” but of other common law crimes.

Q10. The prohibition of cannabis is discriminatory in itself, in that it criminalises people who choose a drug or medicine other than those arbitrarily chosen by others which are almost always more harmful to the individual and society than cannabis.

Such discrimination is particularly unjust in the case of medicinal users or those who use cannabis as part of their religion, eg, Cannabists, Cantheists or Rastafarians

Q11. While the law that prohibits cannabis remains out of step with both public opinion and science, sentencing should at least try to retain public confidence. Certainly in the case of the medicinal use of cannabis, public confidence is destroyed by harsh sentences. Imprisoning anyone for importing, producing/cultivating or possessing cannabis that they needs as medicine is not an injustice, it is an obscenity.

APPENDIX

MEDICINAL USE OF CANNABIS

There is peer-reviewed, published scientific research proving the medicinal benefit of cannabis for each of the following conditions. (Further information can be provided on request)

ADD/ADHD, Addiction, Aging, AIDS, Alcoholism, Allergy, ALS, Alzheimer’s, Anorexia, Anxiety, Appetite, Arthritis, Asthma, Artherosclerosis, Asperger’s, Autism, Back pain,
Bacterial infection, Bipolar disorder, Bladder problems, Brain injury, Bulimia, Cancer,
Chemotherapy, CMT, COPD, Crohn’s, Cruetzfeldt-Jacob disease, Cough, Cystic Fibrosis, Cystitis, Depression, Dermatitis, Diabetes, Dystonia, Eczema, Ehlers-Danlos syndrome, Encephalitis, Encephalomyelitis, Epilepsy, Fertlity, Fibromyalgia, Fungal infection, Glaucoma, HIV, Hepatitis, High blood pressure, Huntingdon’s disease, Hypertension, IBS, Inflammation, Migraine, Morning sickness, Multiple Sclerosis (MS), Muscular Dystrophy, Myalgic Encephalomyelitis (ME), Nausea, Neurodegenerative disease, Neuropathic pain, Nutrition, OCD, Obesity, Osteoporosis, PTSD, Pain, Parkinson’s, Pruritis, Psoriasis, Psychosis, Restless leg syndrome, Schizophrenia, Sickle cell disease, Sleep disorder, Spasticity, Spinal injury, Stroke, Tinnitus, Tourette’s syndrome, Ulcerative colitis, Wilson’s disease.

Anyone who suffers from any of these conditions may reasonably wish to use cannabis to treat themselves. Although the law may unjustly criminalise them, sentencing should reflect that their “crime” is victimless and that they need cannabis as medicine.

Clinical Studies and Case Reports

The International Association for Cannabinoid Medicines (IACM) publishes an up to date reference list of clinical studies and case reports here: http://www.cannabis-med.org/studies/study.php

Emerging Clinical Applications For Cannabis & Cannabinoids, A Review of the Recent Scientific Literature, 2000 — 2011 is here: http://www.norml.org//index.cfm?Group_ID=7002

UK Cannabis Internet Activist (UKCIA) publishes a reference list of medical testimonies here: http://www.ukcia.org/medical/medicaltestimonies.php

CLEAR has published a leaflet on medicinal cannabis here: /wp-content/previous/media/uploads/2011/05/CLEARmedcanleaflet.pdf

Documentary Films

Bringing Cannabis Back Into The Medicine Cabinet 2010

Professor Les Iversen delivers the Inaugural President’s Public Lecture during the British Pharmacological Society Winter Meeting, London 2010. He shows a film of his visit to GW Pharmaceuticals to see exactly how Sativex is made. This is a brilliant lecture from the chair of the Advisory Council on the Misuse of Drugs, the government’s chief drugs advisor.

Clearing The Smoke: The Science Of Cannabis 2011

MontanaPBS’s new documentary, Clearing the Smoke, reveals how cannabis acts on the brain and in the body to treat nausea, pain, epilepsy and potentially even cancer. Extensive interviews with patients, doctors, researchers and skeptics detail the promises and the limitations of medicinal cannabis.

Medicinal Cannabis And Its Impact On Human Health 2011

In this myth shattering, information packed documentary, learn from physicians and leading researchers about medicinal cannabis and its demonstrated effects on human health. This game-changing movie presents the most comprehensive synopsis to date of the real science surrounding the world’s most controversial plant.