Peter Reynolds

The life and times of Peter Reynolds

Legal Opportunities For Medicinal Cannabis Users

with 28 comments

Recent developments mean that there are new opportunities to challenge the prohibition of cannabis as medicine.    Now I am not a lawyer, so these ideas should be carefully discussed with your legal advisors before you even consider pursuing any of them.  I may be wrong about the correct procedure, process or terminology.   I am highlighting opportunities that I have identified, based on my personal experience and knowledge.  Qualified legal advice is essential.

Disingenuous

The British government’s current position on medicinal cannabis is absurd and irrational.  As I understand it, those are exactly the criteria for which the process of judicial review is intended.  That is one route.  Another, more risky opportunity arises if you are facing prosecution or have been convicted of an offence of possession, cultivation or production.  There are ideas here which you may want to consider as a defence or an appeal.  However, please be very careful.  If things go wrong, advancing such arguments might result in a heavier sentence, such is the cruel, oppressive and iniquitous intent of current government policy.

Dishonest

The Home Office is simply dishonest in its current stance saying that there “are no medicinal benefits” from cannabis.  James Brokenshire, the drugs minister, cannot hide behind a lack of knowledge so he looks either more stupid or dishonest every day.  David Cameron made the most dreadful, disingenuous comment about medicinal use in his Al Jazeera World View YouTube interview last week.  See here.  He said “That is a matter for the science and medical authorities to determine and they are free to make independent determinations about that.” That, of course, is absolute rot and Cameron should be ashamed of himself for such misinformation.

Obtain A Doctor’s Prescription For Medicinal Cannabis

There is nothing to prevent your British doctor from prescribing medicinal cannabis for you if he/she believes it is appropriate.  Bedrocan BV is the official contractor to the Dutch government for the production of medicinal cannabis.  Go to its website here and you will discover it has a range of products offering different proportions of cannabinoids and terpenoids for different conditions.  Prescribing information is available for your doctor in exactly the same way as any other drug.  All he/she has to do is select the product and write out a prescription in the normal way.  Your doctor can’t get in trouble for this.  There is nothing improper or unethical about it, but it is, of course, your doctor’s decision whether to do so or not.

If your doctor isn’t prepared to help, the next best thing is to go to a doctor in Holland, Belgium, Germany, Spain or Italy, all countries where medicinal cannabis is regularly prescribed.  In theory, you should be able to see a doctor in another EU country under reciprocal healthcare arrangements but if you can afford it, it may be simpler to go privately.

Another option is to go to one of the 15 US states that permit medical marijuana and obtain a doctor’s recommendation.

Once you have your prescription, you need to apply to the Home Office for a personal import licence to bring your medicine in from Holland.  The licensing section on the Home Office website is here.  If you obtain a licence you will also need to go through a similar process with the Dutch Bureau voor Medicinale Cannabis to obtain an export licence.  The correct section of its website is here.

Of course, the reality is that the Home Office is not going to grant you a licence.  You can then pursue the matter through your MP who should make representations to the minister on your behalf.  You are then at the point to make an application for judical review of the Home Office’s decision.

Challenge The Government’s Interpretation Of The Schengen Agreement

The Schengen Agreement provides protection for travellers to carry their medicine with them within the EU.  The crucial factor is your country of residence.  See here for detailed information. Although there is no precise definition of residency, if you are resident in an EU country where medicinal cannabis is permitted, then you may bring your medicine into Britain and, believe it or not, there is no restriction on your use of it.  You would be perfectly entitled to sit on the steps of Scotland Yard or even the Home Office’s Marsham Street HQ and smoke a spliff.  However, if you are a UK resident, even if you have obtained your medicine on prescription abroad, you are not protected.  This is clearly discriminatory under EU law and could be challenged in court.  I’m not certain whether you would apply to a British court or to the European court but your solicitor would advise you on this.

Defence Or Appeal On The Grounds Of Medical Necessity

The Appeal Court disallowed a defence of medical necessity back in 2005.  A petition to the House Of Lords Judicial Committee and to the  European Court Of Human Rights was dismissed without any reasons given.  I understand that the Appeal Court’s reasoning was that there were no proven medicinal benefits of cannabis.  However, things have changed enormously since then.  The MHRA approval of Sativex and the Home Office’s issue of a general licence for it are conclusive proof of medicinal value.  Whatever misinformation the Home Office may promote, expert evidence would prove that Sativex is pharmacologically identical to, for instance, one of the Bedrocan products.  There is also now a vast resource of peer-reviewed clinical evidence of medicinal benefits.

There is an horrendously improper judgement (R -v- David King,  St Albans Crown Court), where a medicinal user was not allowed even to mention medicinal reasons to a jury on pain of imprisonment for contempt.  Your lawyers would need to study this carefully.  However, it is so clearly unjust that I do not believe it could be sustained.

Re-Scheduling  Of Sativex

Sativex is currently a schedule 1 controlled drug which means it has no medicinal value. As mentioned earlier, the Home Office has dealt with this temporarily by issuing a general licence for it.  However, it needs to be re-scheduled and the Advisory Council On the Misuse of Drugs (ACMD) has recommended that it be placed in schedule 4.  See here for the full story.

Sativex cannot be re-scheduled under its brand name and the only pharmacologically accurate way of describing it is cannabis.  The ACMD left a possible escape route for the Home Office by saying that its “active” ingredients  would have to be specified. GW Pharma, the makers of Sativex would say that this means an extract of THC and CBD.  However, this is dishonest.  Sativex contains all the 60-odd cannabinoids that occur naturally in the plant.  There is no other way of describing it accurately than to call it cannabis. If Brokenshire and his cronies try to prolong this deception then they can be challenged by judicial review.  The aim here is to ensure that the re-scheduling is accurate and so cannabis becomes a schedule 4 drug.  This would then open up all opportunities for cannabis as medicine.

I have no doubt now that medicinal cannabis will be permitted in some form or another in Britain within the near future.   We may need to force the government’s hand through litigation or, perhaps Brokenshire will be moved to another department and then the Home Office can “adjust” its position.

At present, it is a monstrous injustice, an evil and obscene scandal, that those who need cannabis as medicine are denied it.  The way of politics is that a few years from now it may well all have changed and Brokenshire will be at the Ministry of Silly Walks or somewhere better suited to his talents. However it works out, what I care about is that those in pain and suffering get the relief they need.  One day soon, Brokenshire will have to answer to his constituents and later to an even higher power.  How he will justify his cruelty and negilgence I don’t really care but I know I wouldn’t want to be in his shoes on judgement day.


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28 Responses

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  1. This is once again an excellent article Peter.

    I’m no lawyer either, yet the strength of your arguments is obvious to anyone with a fair and clear mind. The problem we have is these vermin make the rules up as they go-along to suit themselves.

    In a couple of months time thousands of safe traditional herbal medicines are to be banned throughout the EU, even though nobody voted for this and the Courts deemed the legislation illegal, Codex becomes law in May.

    That does not mean we should give up. We will not go away, we have righteousness and common sense on our side, the Government has neither.

    Chris Bovey

    March 3, 2011 at 2:30 pm

    • Hey Chris, could you elaborate on this for me with a reference so I can read up on it?

      “In a couple of months time thousands of safe traditional herbal medicines are to be banned throughout the EU, even though nobody voted for this and the Courts deemed the legislation illegal, Codex becomes law in May.”

      Nuff Said

      March 3, 2011 at 8:06 pm

  2. Does anyone know if there is a way of finding a list of doctors in the U.K. who are cannabis-friendly?
    I would rather go to see a doctor who I know to be sympathetic rather than risk having to go through all the reasons I need this medication with my registered doctor, only to be told “no-way, and you must be phsycotic for even thinking of asking for it” which was the reaction I have recieved in the past when making such a request, from one of my past doctors.

    Dan

    March 3, 2011 at 2:49 pm

    • None of my Dr’s or health professionals have run from the room screaming – they all know about cannabis and it’s medicinal qualities. I think we have to start bringing the subject up with our GP’s. I wish you every success Dan.

      Peta

      March 3, 2011 at 3:00 pm

    • Same with me
      I have felt Embarrassment and anger – my Doctor looked at me like a nutter when i told him the only thing that has helped me keep 100% clean of alcohol for the past 6 months (i’m a recovering addict) was cannabis and could he perscribe me with sativex only to be told no way – eat 6 of these mind altering drugs campreol
      a day. The only bit a joy i got was from a professor in East Anglia whom i emailed about my condition – he told me that sadly i will have to keep getting from the street – not the outcome i needed – put at least i felt a medical pro was on my side and gives me some Legitimacy if i ever get busted, as well as the fact that my doctor has been seeing me regards alcoholism
      Bottom line is, i dont give a fuck anymore about the stupid laws on cannabis – i chose to ignore them – if the state wants to waste money prosecuting me – let them, i aim to hurt them in the state pocket as much as they aim to hurt me

      Paul Smith

      March 3, 2011 at 9:06 pm

  3. Ministry of silly walks 🙂 lol

    George Styles

    March 3, 2011 at 3:10 pm

  4. It appears, however, that the process of judicial review is not open to question “primary” legislature, i.e. Acts of Parliament, presumably including the Misuse of Drugs act., (1971).

    http://en.wikipedia.org/wiki/Judicial_review_in_English_law

    I’m no lawyer but welcome comments here…

    Tim Kendall

    March 3, 2011 at 4:24 pm

    • The MoDA is not something I would seek to challenge. It is, in fact, a fine example of progressive legislation which provides a framework for the regulation of use of all drugs based on advice from the ACMD. The challenge would be to ministers’ administration of the MoDA.

      Peter Reynolds

      March 3, 2011 at 6:21 pm

      • Yes, yes and yes – let’s also keep reminding them that ‘prohibition of cannabis’ really means destroying cannabis USERS. The law regulates PERSONS (supposedly to make arrangements for supervsing the supply of cannabis to them responsibly).

        I think these legal challenges are the way to go because govt has fettered their discretion to international treaties and steadfastly refuse to even consider alternatives. This is because of various errors of law (as well as fact). If we can get the courts to hear the arguments, we will make headway. The problem is that we cannot simply wishfully present policy complaints before the courts. The medical necessity argument was an attempt to manipulate a legal principle to argue that the law should not apply to some people – sorry but I think it was misguided on various levels, not least that the way to do it would be to challenge the whole administration when charged or the pro active JR approach of seeking licenses or permissions as peter is saying here as well. I would like to see these JR’s take place, the key in my view now is to actually avoid talking initially about the stupidity of policy, oe even how it is unequal and dsicriminatory – but firstly spot how they justify it. You will see errors of law and thinking that give rise to these objectionable policies. It is these that must be LEGAL arguments that the court cannot dismiss as POLITICAL ones. It’s not the policy, it is the thought process – if a decision maker does not understand the law that he exercises his powers under, then the decsions are voidable whatever they might be.

        Darryl Bickler

        March 19, 2011 at 12:02 pm

      • Thank you Darryl.

        In which court would one seek to challenge the discriminatory effect of the Schengen Agreement? The UK HO interpretation is correct, I believe- residency is the crucial factor but surely this is, in itself, discriminatory and there is no precise definition of what residency means.

        Also, I have information coming to me that the Norwegian governement is interpreting Schengen differently and is allowing the “certificate” to originate in Holland. A Norwegian official is paraphrased as saying “If you went on holiday and fell ill and were prescribed a medicine, Schengen would protect you in bringing it home”.

        Is to be challenged in the European Court or by JR in the High Court?

        Peter Reynolds

        March 19, 2011 at 2:56 pm

      • As you say, the Home office are probably right to construe the agreement in this way as the purpose of to allow signatory state foreigners to come here without inconvenience, not for UK nationals to contrive movement/residency to import cannabis ordinarily controlled under law. Yes, there is a difference in treatment, and Alun’s idea I read earlier about an Englishman and others arriving at customs seems a good publicity idea. We must ask if it is unreasonable for people present on this land to have different rights accorded to their nationality or residency. Well, these do exist of course, foreigners frequently have less rights, we are just not used to it the other way round. It is almost as if foreigners can have diplomatic immunity, something which always seems unconscionable especially before the criminal law.

        The tests for ordinary residency are very well coverred in immigration and nationality case law and I don’t see why they would necesarily base such tests on any other novel criteria unless it can be shown to apply to cannabis patients. Whilst it is tempting to search for loopholes, we must ask ourselves if it’s worth the effort to play what we know to be silly games. If we start from the premise that there are certain groups of needy users (and I am already compromising a great deal with that premise, but this is the track you want to take), then what they really need is some form of license associated with a prescription. It could be to grow or to buy and possess. The fact that other countries offer it is really stretching it further to argue about the discriminatory effect without first doing it in the most simple format. Perhaps the way is for various challenges to be made, starting with home grown medical and import licences. The policy matters will then come out in the wash I expect.

        You have to have locus standi to challenge any of these policies, so it should be done by the patient. Now ignorring own costs, and presumably the Claimant would put their own claim together, although if legal aid could be achieved that would be even better to have proper representation, there are various costs to consider. Someone on benefits should get a court fee waiver and if they lose they won’t be purused too vigorously for costs I would expect. Isn’t the best way to do it to ask permission via the personal import licence route rather than challenge the policy head on? You would then exhaust any appeals and then apply for a JR of the refusal, which might be on the narrow decision or on the policy that led to it itself. So, there is nothing threatening about licenses being awarded on a case by case basis where there is acute medical needs, it’s not actually challenging the whole issue of medical cannabis use, it is asking them to scrutinise applications in much the same way as authorities might look at intoxicating liquor licences or firearms certificates. They would then cite their policy that doubtless will be based upon an error of law re the MODA. This will form the basis of the JR on legality, reasonableness and fairness. JR’s are not easy and they are a lot of work. I would consider though that it is more accessible than the ECHR. However, even if the High Ct refuse this, and you exhaust the renewal proceedure and the possible appeal to the Court of Appeal (Civil) – then one can still go to the ECHR or at least apply for permission. This would take some research, it’s pretty complicated to establish all of the various duties. The freedom of movement issue might be the one to bear fruit as the Norwegian bloke implied.

        Darryl Bickler

        March 19, 2011 at 4:06 pm

      • Thank you Darryl. Maybe we can chat more about this in Manchester next weekend?

        Peter Reynolds

        March 19, 2011 at 4:21 pm

      • That’s point, need to sort out the SSDP presentation and think of some one liners for dealing with hecklers and bickerrers – will surely see you there.

        Darryl Bickler

        March 19, 2011 at 4:43 pm

      • I nhave been looking at this briefly and the issuen is that the Dutch citizen would be enterring the UK under EU law, whereas the UK one is not. It will not be an ECHR matter at all, but perhaps a European Court of Justice one.

        Darryl Bickler

        March 21, 2011 at 10:39 am

  5. securing their own gains and goals, its no surprise why cannabis prohibition is so expensive and the job expected is not getting done , these people are all corrupt and no doubt selected to that position ,for that reason ,for a cut , who is the victim in a medical users case, pure evil greedy corruption , they are not protecting anyone other then their own who step in line

    boss

    March 3, 2011 at 5:17 pm

  6. This letter may be of interest – it was sent to Don Barnard in reply to a letter from him to Charles Clark, the then Home Secretary

    “This is the reply to a letter from Don

    Home Secretary
    2 Marsham Street
    London
    SW1P 4DF

    Thank you for your recent e-mail about the Law Lords’ ruling on the medical use of cannabis and related matters.

    On 17 October, the Law Lords upheld the Court of Appeal’s dismissal of a test case challenge by five people convicted of possessing or supplying cannabis. As you know, the appellants, in view of the great pain from which they were suffering, had argued they were entitled to a defence of necessity.

    Contrary to what you state in your e-mail, the House of Lords has not announced that medicinal cannabis is not a defence. However, they have written and informed all parties that they have refused the petition. There has been, and will be, no formal pronouncement. ‘The defence in similar cases is not debarred from entering a not guilty plea, but a judge would have to tell the jury that the defendant has no defence in law.

    The Government has made it clear that we would seek Parliament’s agreement to make any necessary changes to the law to enable the prescription of cannabis-based medicine for the purposes of relieving pain but not before product approval from the Medicines and Healthcare products Regulatory Agency (MHRA), The MHRA is responsible for evaluating the safety, quality and effectiveness of all prospectively prescribable products. It is a process which is designed to protect public health.

    GW Pharmaceuticals were refused a licence for their cannabis-based medicine, Sativex, in June 2005 and, pending further clinical trial, there is therefore no early prospect of a prescribable cannabis-based medicine, licensed here, becoming available to multiple sclerosis sufferers.

    However, Sativex has been granted a marketing authorisation in Canada where it has been licensed for the relief of neuropathic pain in multiple sclerosis under the terms of a conditional licence. Home Office Ministers have recently made clear that imports of Sativex will be allowed under licence

    You have asked for advice about a leaflet you have drawn up that aims to make jurors question whether prosecutions for cannabis possession should proceed if the individual involved argues the use for medicinal reasons. In particular, you have asked whether it would constitute an offence if the leaflet were distributed outside a court. We have liaised with the Crown Prosecution Service to establish the legal position but only a court can provide an authoritative view.

    Our view is that if you intend to distribute the leaflet generally then there is no offence and no recourse

    You imply that you may seek to distribute the leaflets at the High Court in the Strand. However, juries at the High Court would not normally hear a criminal case. Juries are still used for some civil proceedings such as libel. *If *you intend to distribute them to a civil jury, then there is no possible recourse.

    I*f *the leaflet were to be handed to jurors in a specific criminal case where the issue is cannabis possession for medicinal necessity, then this may constitute a common law contempt of court as it would constitute knowingly interfering with those who have duties to discharge in a court of justice. Juries have to decide cases on the basis of what they hear in the court and not from advice from a leaflet. Alternatively such action could be construed as constituting a charge of perverting the course of justice if it could be shown that the intention was interference with a view to influencing the jurors’ verdict

    Charles Clarke

    Alun

    March 3, 2011 at 5:46 pm

  7. This letter was sent by Charles Clarke the then Home Secretary in 2005 in reply to a letter from Don Barnard
    ——-

    Thank you for your recent e-mail about the Law Lords’ ruling on the medical use of cannabis and related matters.

    On 17 October, the Law Lords upheld the Court of Appeal’s dismissal of a test case challenge by five people convicted of possessing or supplying cannabis. As you know, the appellants, in view of the great pain from which they were suffering, had argued they were entitled to a defence of necessity.

    Contrary to what you state in your e-mail, the House of Lords has not announced that medicinal cannabis is not a defence. However, they have written and informed all parties that they have refused the petition. There has been, and will be, no formal pronouncement. ‘The defence in similar cases is not debarred from entering a not guilty plea, but a judge would have to tell the jury that the defendant has no defence in law.

    The Government has made it clear that we would seek Parliament’s agreement to make any necessary changes to the law to enable the prescription of cannabis-based medicine for the purposes of relieving pain but not before product approval from the Medicines and Healthcare products Regulatory Agency (MHRA), The MHRA is responsible for evaluating the safety, quality and effectiveness of all prospectively prescribable products. It is a process which is designed to protect public health.

    GW Pharmaceuticals were refused a licence for their cannabis-based medicine, Sativex, in June 2005 and, pending further clinical trial, there is therefore no early prospect of a prescribable cannabis-based medicine, licensed here, becoming available to multiple sclerosis sufferers.

    However, Sativex has been granted a marketing authorisation in Canada where it has been licensed for the relief of neuropathic pain in multiple sclerosis under the terms of a conditional licence. Home Office Ministers have recently made clear that imports of Sativex will be allowed under licence

    Charles Clarke

    Alun

    March 3, 2011 at 5:53 pm

  8. I found a genuine good medicinal cannabis doctor in an index that is top ranked in the Net. My doctor listened to my desires and answered all my questions.

    Marijuana Doctors

    March 3, 2011 at 6:18 pm

  9. for nuff said……http://www.ipetitions.com/petition/anh-vitaminrestrictions …online petition.

    itinkso

    March 3, 2011 at 9:54 pm

    • Petition signed, also comment left…
      “I reserve the right to put into my body whatever nutrition and medication that I see fit.”

      Dan

      March 3, 2011 at 10:00 pm

      • hear hear dan!….i think this is shameful and disgusting…a flagrant abuse of my right to treat myself as i see fit…..yet again!!!

        itinkso

        March 3, 2011 at 10:08 pm

  10. itinkso

    March 3, 2011 at 9:56 pm

  11. will work this into the next show. – double bill!

    Cure Ukay

    March 4, 2011 at 11:33 am

  12. The Home Office have a new Drug Strategy Blog. Maybe a key delivery partner like the LCA could ask them why Medicinal Cannabis isn’t mentioned once.

    http://drugstrategyblog.homeoffice.gov.uk/moderation-policy.php

    They’ll probably censor it heavily, but it might worth keeping an eye on the comments. Hopefully the independent scientific committee on drugs will get a comment through at the very least!

    Bob

    March 7, 2011 at 8:29 pm

  13. you have my vote. lets hear this argument on question time, newsnight, etc.

    craig ashby

    March 9, 2011 at 7:43 pm

  14. time to get the law changed its stupid that many European countries including Germany, Spain, Italy,Switzerland,belgium, all have medical cannabis laws and we don’t its really is stupid time for a change me thinks its so damn stupid.

    Martin

    March 31, 2011 at 11:56 pm


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