Reading about this case () has been a very useful exercise indeed! James Torrens-Spence is to be commended for running this, and whilst he didn’t nail it exactly, we can see from what he has said, and what the judge has said, why this attempt failed.
OK – So, I am not having a go at James, but this is a very common mistake that the judge seized upon:
“He argued that the Class B drug should have parity with both alcohol and tobacco.”
Comment:It is not my view that we should have equal classification for cannabis and alcohol – it’s that the discussion commences from the perspective of the observable social harms broadly correlating with measurable outcomes, and that engages the existing legislative structure and engages it. There is no parity between drugs, only a wish for such between persons within the overall class of drug users. Equality and proportionality of interference into liberty within common law and human rights based analyses go hand in hand – what is expected is a respect for peaceful self-determination within the realms of conscience, consciousness, access to thoughts and ways of being that do not adversely impact upon others and where our actions do impact adversely against others, we deserve as a society for measures to be taken to address these concerns, but in the case of alcohol misuse and tobacco use, we are denied this safeguard, and this is a safeguard we might legitimately expect to protect us, but it does not through the misconstruction of ‘legal drugs’.
In truth, we must never consider our liberty in terms of substances, but from the standpoint of what freedoms we might reasonably enjoy over our bodies given the existence of the Act, and how that compares with what we experience under the peculiar administration of it. We are at the mercy of the dealers in mass death and destruction’s right to preserve their turf by taking away liberty in all circumstances concerning the exercise of cannabis property rights.
The law: the Act does not seek to ban property interests in controlled substances outright; nor does it even to discourage the use of any such substance (other than opium under section 9). The Act is concerned solely with addressing anti-social outcomes by regulating persons misusing drugs, indeed any harmful drug. Yet the administration in its present incarnation is divorced from the legitimate endeavour of addressing persons so misusing drugs and causing harms; rather the decision makers have misconstrued the entire Act by reversing the subject and object of regulation. This prevents the Act’s regulatory apparatus from functioning, and improperly excludes persons from the operation of the law.
3 Complaints about the MDA as applied:
(i) A complaint that statutory misconstruction extant within the administration of the Act by the state (including the ACMD), that makes any subsequent application of it unlawful. Note: the misconstruction precedes the control process thus making it a generic, and not a case specific defence.
(ii) A complaint that the misadministration of the Act improperly targets or fails to target persons with respect to addressing the actual mischief of the Act’s concern. Note: the law is thus being applied to persons in both an over inclusive and under inclusive fashion at same time, thus there is an arbitrary, unequal and disproportionate interference with liberties and rights.1
(iii) A complaint that punishment via the Act as administered would be disproportionate. Note: it is the aforementioned misconstruction by the state that compels them to conflate virtually all uses of cannabis with misuse, all users with abusers. The state’s denial of access to the envisaged statutory licensing scheme to all individuals, and not to just the classes of persons of whom it is reasonably foreseeable that they might misuse the plant, indiscriminately draws all such cannabis using persons into the criminal justice system unnecessarily and unfairly.
The statutory construction questions for the court can be summarised by reference to direct quotations from official Parliamentary reports and Command Papers thus:
(a) Is the government correct to say that “our policy of prohibition is reflected in the Act”?2 Does the Act seek to make the use of cannabis a criminal offence?
(b) Is the government correct to justify using the Act to target some persons using harmful drugs, and to excuse others from the operation of the (neutral) law by merit of “historical precedent” and “cultural preferences” as the criteria for governance?3
(c) Does the Act create categories of persons excluded from its purview by merit of those persons being concerned with “legal drugs” irrespective of the social harms caused by the misuse of those drugs? (CM6941)
(d) Does the Act create categories of persons who are not entitled to concern for proportionate interference into their liberty via the regulatory options that exist via the discretion to make Orders re the control, s2(5), and designation, s7(4), of dangerous or otherwise harmful drugs and for regulating enumerated activities, ss7(1)-(3), 10 & 31(1)(a), or exempting offences, s22(a)(i), re “controlled drugs” by merit of those persons being concerned with “illegal drugs”? (CM6941)
It is respectfully submitted that:
This action of personal cultivation of cannabis ought to be a permissible one where the activities can be conducted under license or other statutory exception manifested through using the powers under sections 7, 22 and 31 of the Act, and those peaceful activities that do not lead to social harm ought in the interests of proportionate interference by the state into the private life of persons, become appropriately regulated activities that address any propensity for misuse of such drugs via measures restricting or making other provisions for the grant of lawful property rights in specified controlled drugs, and for different classes of persons with respect to different activities with respect to different drugs in different contexts.
The Act is justifiably concerned with anti-social outcomes pertaining to all and any drug misuse. The only measurable and objective parameter to apply must be a concern for observable or anticipated harms, principally social harms. Such where linked to a drug or substance ought to trigger the bringing of the persons exercising property interests in that drug under the purview of the Act. If the substance is not a controlled one and it poses any long terms harms cost or threat to the country, then the government should ask the ACMD to examine (and indeed the ACMD should itself make government aware of its responsibilities) concerning the misuse of that drug and setting in process the statutory process of bringing a substance into the table of ‘controlled substances’ which are substances that the persons concerned with are expectantly (although not in actual practice) regulated with respect to the exercise of property rights to address social harms. Under exceptional circumstances a Designation Order may be justified reducing the imperative to grant exceptions to the point of redundancy. Such a measure must be open to review if it’s inception and preservation are maintained by what is a false consciousness within the administration of the Act.
If the ACMD and government cannot give true effect to the law, then parliament will never consider any measure. Indeed parliament cannot bring the majority of drug misuse under the control of the Act because they and the ACMD have abandoned jurisdiction over the Act. This is because of their statutory misconstructions concerning ‘legal’ and ‘illegal drugs’ incorrectly presuming that some kinds of drug abuse done by vast numbers of persons misusing alcohol and using tobacco is outside their concern by merit of it being based upon cultural or historic precedent and preference that makes these drugs ‘legal drugs’. This is a reversal of reality, not only does the Act regulate outcomes, ie persons, not drugs or substances as such, but activities with them, but no significant anti-social harms are outside the jurisdiction of the Act. But it is made to appear so.
Given that it is the sole responsibility of the government to promulgate orders in council for Parliament to administer the Act lawfully, Parliament is becalmed from any possible action whilst the decision makers responsible for breathing life into the Act fail to perform their duty. This inaction by parliament from heralding in a regulatory scheme or creating exemptions under the Act is because they sit behind a Designation Order that suspends the regulatory apparatus of the Act, and only these powers are what can differentiate between peaceful uses and misuses of cannabis. They are what parliament enacted for. So, it is the preservation of this extreme measure, one that extinguishes all possible regulatory options other than for scientific enterprise, being touted as a living policy being the will of parliament in action. In truth it represents a dereliction of duty to administer the Act, and the given explanations are couched in terms that reveal errors of law due to statutory misconstruction. It is the executive and the ACMD who must advise Parliament, as it is they who drive the Act, and it is they who abandon jurisdiction – the court cannot also abandon jurisdiction as otherwise there is no control over the controllers!
Comment:Policy is to grant licence to drug dealers selling the most harmful of drugs, and then to deny the public their peaceful choices, this being for ulterior commercial motives, using the criminal justice system to extort a monopoly for the dealing and property rights in some dangerous drugs by prohibiting all personal rights in competing drugs such as cannabis. The misconstruction of ‘illegal drug’ forces the persons concerned with this drug to experience the full denial of any peaceful agency given their disposition with this substance and the invention ‘legal drug’ allowed the law to become liable to irrational use when profits in that legal drug are so widely held and made by wealthy persons profiteering from the misery of the misuse of tobacco because it has become known as a ‘legal drug’, and yet no drug misuse is outside the purview of the law, it just requires action. And yet this is something parliament never was asked to look at, nor the ACMD, and despite the deaths from it outstripping all use of all ‘controlled drugs’ by a factor of about tenfold. The misconstruction cost society dear.
It’s worth remembering that whilst parliament has not considered a broad ban on the use of alcohol or tobacco, the application of a Designation Order over cannabis property still does not mean that parliament has banned the use of cannabis or indeed any drug other than the use of opium (section 9 MDA). No, parliament wanted to preserve the possibility of peaceful use, and so empowered the administrators to seek a multitude of flexible regulatory options. These options are supposedly never used except for special scientists to preserve the myth of illegal drugs, although a virtual or actual commercial monopoly has been extended to GW Pharmaceuticals to produce the strongest possible high THC cannabis oil for sale under licence for specific medical ailments and research into cancer therapy amongst other possible uses.
These must be considered and we have never seen any analysis of the key rights to self-determination, and the application of the antidiscrimination/ equality paradigm of like cases and unlike cases within classes of individuals within identifiable groups (the group is the users of socially harmful drugs). The misconstructions, erroneous beliefs and subsequent misadministration and misapplication of the Act by the state, disproportionately interfere into his rights under Protocol 1, Article 1 (property), Article 8 (privacy) and Article 9(1) (freedom of thought) of the ECHR (all as free-standing rights and conjunct Art 14 (discrimination).
Parliament has not expressed any opinion on any regulatory measure with respect to the use or misuse of cannabis as it has not had the opportunity to do so.
1 The Home Secretary, James Callaghan recommended the Act to Parliament as evidence based legislation in 1970; “The object here is to make, so far as possible, a more sensible differentiation between drugs. It will divide drugs according to their harmfulness in the light of current knowledge and it will provide for changes to be made in the classification in the light of new scientific knowledge.”
2 “our policy of prohibition [is] reflected in the terms of the Misuse of Drugs Act 1971” – Home Office (2007) Response to Better Regulation Executive re Misuse of Drugs Act, 27 September 2007
3 Drug Classification: making a hash of it, the 5th Report by the House of Commons Science and Technology Committee Session 2005/06 (CM6941).