England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Monday 23rd October 2001

1. THE VICE PRESIDENT: On 30th July 2001 at Inner London Crown Court, before His Honour Judge Stone, the applicant pleaded guilty, on re-arraignment, to possessing a controlled drug of Class B with intent to supply, namely just over 90 grammes of cannabis. On 14th August he was sentenced to 12 months' imprisonment. That plea of guilty was entered after the judge had rejected a submission on his behalf that a prosecution under the Misuse of Drugs Act 1971, infringed his rights under Articles 9 and 8 of the European Convention on Human Rights or, alternatively, that the Crown had to prove that a prosecution was a necessary and appropriate response in fulfilment of a legitimate aim. The judge directed that the second count in the indictment, of having a bladed or pointed article in a public place, should remain on the file on the usual terms.
2. The applicant's applications for leave to appeal against conviction and sentence have been referred to the Full Court by the Single Judge.
3. The facts were these. On 15th November 2000 the applicant was seen by police officers to leave a motorcar, in which there was another occupant, and approach a building, known to be a Rastafarian temple in St Agnes Place, Kennington. He ignored the police officers' requests to stop and he tried to get into the building. But he was stopped before he could do so. He was searched. There was a black leather pouch containing a lock-knife and a self sealing bag in his possession. In the bag was a white net containing 32 wraps of herbal cannabis, weighing just over 31 grammes, and two smaller lumps of cannabis weighing just over a gramme and not quite 5 grammes respectively.
4. When the car was searched, there was found a carrier bag containing 35 further wraps of herbal cannabis, weighing just over 50 grammes, and a partly smoked cannabis cigarette.
5. When he was arrested, the applicant said: "I'm a Rasta, it's part of my religion." Later, at the police station, the car was searched again and another resealable bag was found containing 1.81 grammes of cannabis. He also had £295 in cash in his possession.
6. In interview, under caution, he said that he had been getting ready for a regular act of worship in the temple for which the cannabis had been provided and was to be used. It was packaged in the way it was to ensure that those attending received an equal amount. He had used the knife to cut the cannabis.
7. The contentions advanced before the learned judge on the applicant's behalf were, essentially, that the proceedings should be stayed, if the Crown accepted that the cannabis was in the applicant's possession for the purpose he described in interview or, alternatively, the jury should be directed that the Crown had to show the cannabis found was not for consumption as part of Rastafarian worship in the temple or, alternatively, if the cannabis was to be used for the purposes of such worship, the Crown had to prove that the institution of criminal proceedings was a necessary and proportionate response in fulfilling a stated legitimate aim.
8. In order to understand these submissions, and the judge's ruling on them to which, in a moment, we shall come, it is necessary first to rehearse Article 9 of the European Convention. Omitting immaterial words it is in these terms:

"1. Everyone has the right to freedom of right, thought, conscience and religion; this includes... freedom either alone or in community with others or in public or private to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of rights and freedoms of others."

9. Article 8 provides:

"1. Everyone has the right to respect, for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country for the prevention of disorder or crime, for the protection of health or morals or protection of the rights and freedoms of others."

10. The Single Convention on Narcotic Drugs 1961, as amended by the 1972 protocol, expresses the concern of the contracting parties, which include the United Kingdom, about the health and welfare of mankind; recognises the need for medical use of narcotic drugs; recognises that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind; considers that effective measures against abuse of such drugs requires coordinated and universal action; and expresses a desire to conclude a generally acceptable international convention, limiting such drugs to medical and scientific use. That convention applies to cannabis, cannabis plant and cannabis resin, among other drugs, each of which is defined.
11. Article 36 of the Convention provides, omitting immaterial words:

"1(a) Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that... possession, offering, offering for sale, distribution... delivery on any terms whatsoever... of drugs contrary to the provisions of this Convention... shall be punishable offences when committed intentionally...."

12. The United Nation's Convention against illicit traffic in narcotic drugs and psychotropic substances, adopted in December 1988, expresses similar, albeit heightened, concerns, to those identified in the 1961 Convention. It provides, in Article 3.1 that the contracting parties which, again, include the United Kingdom:

"...shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:

(a)(i) The... offering... distribution... delivery on any terms whatsoever... of any narcotic drug or any psychotropic substances contrary to the provisions of the 1961 Convention as amended."

13. Paragraph 2 of Article 3 provides:

"Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law... the possession, purchase or cultivation of narcotic drugs or psychotic substances for personal consumption, contrary to the provisions of the 1961 Convention... as amended...."

14. The trial judge, in a clear and careful ruling, concluded, in the light of the Crown's concession that Rastafarianism is a religion and their further, perhaps somewhat surprising, concession that all of these drugs were destined for use in connection with Rastafarian religious purposes, that the European Convention on Human Rights was engaged, but that those rights were qualified by the provisions of Article 9(2). As it was common ground that the limitations on cannabis supply imposed by the Misuse of Drugs Act 1971 are limitations prescribed by law, the crucial question was whether those limitations were necessary in the terms of Article 9(2). That necessity, the judge said, would be shown by the existence of pressing social need, and a reasonable relationship between the terms employed and the aims pursued. This, the judge commented, raised complex issues, not easy for a Crown Court judge to resolve. But the Misuse of Drugs Act, he concluded, fulfilled the United Kingdom's obligations, under the Conventions of 1961 and 1998. These provided powerful evidence of an international consensus that an unqualified ban on the possession of cannabis, with intent to supply, is necessary to combat public health and public safety dangers arising from such drugs. The same conclusion, he said, applied in relation to Article 8.2 and the restrictions it imposed on the Article 8.1 right to respect for private life.
15. He further concluded, in the light of the guidance given by Lord Hope in R v Lambert [2001] 3 WLR 206 at 233 and, in particular, paragraphs 78 to 81, that the Misuse of Drugs Act could not, so as to comply with section 3 of the Human Rights Act 1998, be read as incorporating a Rastafarian religious defence under Articles 9 or 8. Such an interpretation, he said, would be wholly at odds with the scheme of the Act.
16. He also rejected a submission that Articles 9 or 8 should be given effect to as providing new general defences to prosecutions under the Act. Finally, he concluded that there was no ground for him either to order a stay or to direct the jury that they should only convict if they found that prosecuting the defendant was a necessary and proportionate response by the Crown Prosecution Service exercising its discretion whether to prosecute. Determination of proportionality, he concluded, was not a proper jury function.
17. Before turning to the submissions made to this Court, it is pertinent to make one preparatory comment. Even if, which we doubt, but for present purposes it is unnecessary to decide, simple possession of cannabis by a Rastafarian, for religious purposes, in a private place, raises difference considerations, that is not this case.
18. Here, the applicant, in the street, had a substantial quantity of cannabis, which it is not suggested was for his own use. On the contrary, he accepts that he intended to supply others. Although, as we have said, the prosecution in the court below conceded, perhaps surprisingly, that all the applicant's supplying would be for religious use, the applicant's motive in supplying others, and whether those he supplied used or intended to use the cannabis for religious or other purposes are, on the face of the Act, immaterial. Neither forms any part of the ingredients of the offence to which, in the light of the judge's ruling, the applicant pleaded guilty. Although his motive and whether he was carrying out this activity for religious purposes or financial gain, will be highly relevant to sentence.
19. Mr Owen Davies QC, on behalf of the applicant, treated the court below and has treated this Court, by virtue of his written submissions, to the products of erudite and wide ranging research in relation to the matters which are the subject of present dispute. Essentially, and without being in any way disrespectful to that wide ranging research, Mr Owen Davies' submission is this. The judge should have heard evidence and made findings of fact in relation to a wide range of issues, for example, the impact of cannabis on health and, the significance of cannabis in relation to the Rastafarian religion. His failure to hear such evidence flawed his approach. The mere existence of the two conventions to which we have referred was not a justification for the application of the criminal law to Rastafarians, nor are the Conventions determinative in relation to the balancing exercise which Mr Owen Davies submits the judge needed to carry out between invasion of Article 9 and Article 8 rights and the necessity for a reasonable response in terms of legitimate aims. He relied on R v Uxbridge Magistrates' Court ex parte Adimi [2000] 3 WLR 434, which concerned an asylum seeker, charged with forgery of travel documents. That is a sufficient description of that case to demonstrate how very different it was from the present.
20. Mr Davies accepts that there is, in the present case, no question of any manipulation or dishonesty or misconduct by the prosecution in relation to the bringing of this prosecution, save that, he submits, the prosecuting authorities should have exercised their discretion in favour of not prosecuting the applicant at all. Furthermore, the Crown Court judge should have exercised judicial control over the prosecution's decision to prosecute and have concluded that a stay should be granted because the decision to prosecute was one which the court should have found unacceptable. Mr Davies conceded that, if the Crown Court has so wide a discretion as that which he seeks to assert, it would represent a wholly new basis on which to order a stay of proceedings. He had submitted below, and very faintly submits here that, if the judge was not going to order a stay, he ought to have left the matter of proportionality to the jury and directed them accordingly.
21. The crucial question, he submits is: has the state shown a proportionate, necessary, justification for prosecuting Rastafarians for supplying others of their religion? In connection with that, he took the Court to a decision of the South African Constitutional Court in Prince [2001] 2 BCLR 133, and Woody, a decision of the Supreme Court of California, 394 P second 813. He further submitted that the Misuse of Drugs Act should be read in a manner compatible with the Human Rights Act, in that, if not so read, the applicant's Article 8 and 9 rights would be contravened. Finally, he submitted that a certificate of incompatibility between the Misuse of Drugs Act and the Human Rights Act was called for if the Act could not be read compatibly with the Convention.
22. On behalf of the Crown, Mr Hehir relied on an authority which was not before the Crown Court judge, a decision of the United States Supreme Court in Employment Division Department of Human Resources of Organ, et al Smith 494 US 872. The majority opinion expressed in that case by Justice Scalia, Mr Hehir submitted, supports the drawing of a distinction between legislation prohibiting conduct because it relates to or is motivated by religious belief and legislation which is of general application but prohibits, for other reasons, conduct which happens to be encouraged or required by religious belief. In the light of that authority, Mr Hehir submits that the prohibitions contained in the 1971 Act, in relation to the supply of cannabis, do not amount to an interference with Article 9 or, for that matter, Article 8 rights.
23. In his reply, Mr Davies sought to submit that the approach of certain American state jurisdictions since the decision of Smith indicate a somewhat different approach. As an example of that, he referred us to US v Bauer, a decision of the United States Court of Appeals for the 9th court, 84F 3rd 1549. We do not accept that the approach of the majority in Smith's case is impugned by anything that was said by the 9th circuit Court of Appeal in Bauer.
24. Mr Hehir further submitted that not every act motivated or influenced by religion or belief will amount to practice, worship, teaching or observance. In that connection he referred to Arrowsmith v The United Kingdom.
25. Alternatively, he submitted that, if there were any interference with the applicant's rights under Article 9.1, it was justified in terms of Article 9.2 limitations. He relied upon the two Conventions as providing evidence of the necessity of any such interference, in pursuit of the legitimate aims set out in Article 9.2. It is not necessary, for the purposes of the present application, to make any comment on the propriety or otherwise of the concession which was, at one stage, hovering in Mr Hehir's submissions that there is a burden upon the state of the kind which he indicated in his submission had, in any event, been satisfied.
26. Mr Hehir also invited the Court's attention to United States v Whyte, a decision of the District of Columbia Court of Appeal, 471 Atlantic Report, second series page 1018, and to a passage of the judgment of that court at 1021, where appears the following:

"...we choose not to accept the appellant's suggestions that in balancing competing interests, we take into account evidence minimising dangers from marijuana abuse. This court will not substitute its judgment for that of the legislature where, as here, the challenged legislation has seen fit to control a substance on a rational basis."

27. That is an approach which Mr Hehir commends to this Court. He points out that there are examples where Parliament has provided a religious defence in what Parliament regards as appropriate circumstances. He referred to the Criminal Justice Act 1988, section 139(5) (b), which provides, in certain circumstances, a religious defence in relation to the possession of a bladed weapon. But, submits Mr Hehir, the consideration of what defences may be appropriate, in relation to conduct which otherwise gives rise to a criminal offence, where the burden lies in relation to such defences and as to the nature of the burden, are all matters which are properly the province of Parliament not the courts.
28. As to Article 8, Mr Hehir submits that the appellant's case raises no real question of privacy, bearing in mind that the applicant was in a public place in the circumstances to which earlier we referred.
29. As to reading the Misuse of Drugs Act in the way suggested by the applicant, namely that there is a statutory defence of religious use, that would involve the many questions to which we have already referred, and would run counter to the guidance given by Lord Hope in Lambert in the passage on which, as we have indicated, the learned Crown Court judge relied. The suggestion that the jury should have been permitted to determine matters of necessity and proportionality cannot, submits Mr Hehir, be justified.
30. As to a stay for abuse of process, Mr Hehir distinguishes Adimi and submits that it has no application to this case.
31. Interesting though Mr Davies' submissions have been, they do not persuade us that it is arguable that the Crown Court judge, in his approach to this matter, in the light of the concessions made before him, erred in any way. Assuming that Convention rights are enjoyed, his conclusions in relation to Articles 9 and 8 were, as it seems to us, correct. He was not, as it seems to us, required to conduct a trial, hearing evidence as to the merits or demerits of cannabis. He was not required to investigate whether Rastafarianism was a religion because that was conceded by the prosecution. He was, as it seems to us, properly entitled to rely upon the inferences to be drawn from the United Kingdom's subscription to the 1961 and 1988 conventions and he was also, in the exercise of his discretion, fully entitled to reach the conclusion, which he did, that no stay was appropriate in relation to the prosecution of the applicant and that questions of proportionality and necessity were not proper questions for consideration by a jury.
32. In essence, we accept the submissions made by Mr Hehir. That being so, we refuse this application for leave to appeal against conviction.
33. As to sentence, we indicated to Mr Owen Davies that that application would be granted. The sentence of 12 months imposed by the learned judge was, as it seems to us, manifestly excessive, having regard to all the circumstances of this case.
34. Once it was conceded by the prosecution that the contemplated supply was for religious purposes, and once there was a lack of evidence that the applicant was engaged in supply for commercial benefit rather than religious purpose, the sentence passed by the learned judge was, as it seems to us, significantly too long.
35. The appellant is, apparently, a naive young man who has no significant criminal record. There is an additional feature of personal mitigation, namely that, sadly, he has a child who suffers from cerebral palsy who is, as perhaps one might expect, being adversely affected by the continuing incarceration of the appellant.
36. Accordingly, although we would initially have been minded to substitute a sentence of 6 months for the 12 months imposed by the judge, bearing in mind that the appellant has served something over two-and-a-half months in custody already, the order we propose to make is to quash the sentence of 12 months imposed by the learned judge and substitute for it a sentence of 5 months, which will enable the appellant immediately to be released. To that extent the appeal against sentence is allowed.