England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		01 July 2009

1. LORD JUSTICE LEVESON: I will ask Wilkie J to give the first judgment.
2. MR JUSTICE WILKIE: This is an application by Edwin Stratton for permission judicially to review the decision of the Waltham Forest Magistrates' Court, on 9 October 2008, to require him to stand trial, at whatever is the appropriate venue for his trial, in respect of an alleged offence alleging that he was in breach of section 4 of the Misuse of Drugs Act 1971. That he produced a controlled dug in contravention of section 4(1), or at any rate, to be more accurate, was concerned in the production of such a drug by another, the drug in question being cannabis.
3. He was arrested on 28 May 2008, having been found with some cannabis plants growing at his home within a small set up. In interview he acknowledged that the plants were his and he inferred that he required to use cannabis because of his medical condition. In his grounds he acknowledges that he was offered a police caution on three occasions, but he refused each time, and subsequently was charged with being concerned in the production of cannabis.
4. When he was first summonsed to appear before the magistrates on 9 October he argued that the process should be stayed because the prosecution was an abuse of process. He argued successfully before the magistrates that the abuse of process upon which he relied was such that they ought to adjourn in order to permit him to seek a judicial review at this court, because the challenge which he sought to make did not allege any impropriety as far as the individual bringing of the case was concerned, either by the Crown Prosecution Service or the way in which the trial might in the individual circumstances, be conducted. Rather, he argued that the way in which the Government had applied the mechanism for control of, and classification of, drugs under the 1971 Act revealed an abuse of process on the grounds of irrationality, unlawful discrimination, apparent bias and fettering of discretion. Furthermore, although not seeking a declaration of incompatibility concerning the Misuse of Drugs Act 1971, his allegations were, and have been before us, to the effect that the way in which the classification system under the Act has been engaged constitutes breaches of various European Convention rights: in particular, the right not to be discriminated against: (Article 14) in respect of property (Protocol 1, Article 1); freedom of thought (Article 9); respect for private life (Article 8); due process and fair trial rights (Article 6) and liberty (Article 5).
5. In essence, his argument is that, although the Government has recognised that there are other drugs which are potentially harmful both to the users and to society in the event of their misuse -- notably alcohol and tobacco -- they are not the subject of control under the Act, and the decision not to make them subject to control is irrational and discriminatory.
6. It is necessary for us to examine the way in which the Act operates and Mr Stratton, ably assisted by his McKenzie friend, Mr Bickler, has drawn our attention to the relevant provisions. Section 1 of the Act establishes the Advisory Council on the misuse of drugs. Section 1 imposes upon that body a:

"duty... to 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, and to give to any one or more of the Ministers, where either the Council consider it expedient to do so or they are consulted by the Minister or Ministers in question, advice on measures (whether or not involving alteration of the law) which in the opinion of the Council ought to be taken for preventing the misuse of such drugs or dealing with social problems connected with their misuse, and in particular on measures which in the opinion of the Council ought to be taken —

(a) for restricting the availability of such drugs or supervising the arrangements for their supply;

7. One of the practical manifestations of the discharge by the Advisory Council of its section 1 duty is to be found in the mechanism established by section 2 for the establishment of certain drugs as controlled drugs, and their classification for the purposes of the Act. Section 2(1) provides as follows:"Controlled drugs and their classification for purposes of this Act"

"2-(1) In this Act —

(a)the expression "controlled drug" means any substance or product for the time being specified in Part I, II, or III of Schedule 2 to this Act; and

(b)the expressions "Class A drug" , "Class B drug" and "Class C drug" mean any of the substances and products for the time being specified respectively in Part I, Part II and Part III of that Schedule;"

8. The method by which changes are made in Schedule 2 is by the making by Her Majesty of an Order in Council. For that purpose an Order in Council may amend Schedule 2 for the purpose of adding any substance to, or removing any substance from, any of the Parts I, II or III of the Schedule (section 2(2). Section 2(5), however, provides:

"(5) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament; and the Secretary of State shall not lay a draft of such an Order before Parliament except after consultation with or on the recommendation of the Advisory Council."

9. Thus the process for altering Schedule 2 either to add or remove any particular substance or product, or to change the classification of any substance or product, is a multi-stage process. It starts with the Secretary of State laying a draft of an order before the House, but, before doing so, the Secretary of State is obliged to consult the Advisory Council. Having done so it is only if each House of Parliament approves a resolution that the order is then sent for the making of an Order in Council, which is the method by way the schedule is changed.
10. Section 4, which establishes the offence with which we are concerned, is focused upon the production, in this case, of a controlled drug, that is to say one which is controlled either by virtue of its inclusion initially in Schedule 2 of the Act, or where that schedule has been amended by the parliamentary process, which I have just described.
11. The question of the inclusion in Schedule 2 of cannabis, and the exclusion in Schedule 2 of alcohol and tobacco, is, and has been, the subject of ongoing public debate. Mr Stratton has drawn our attention to a report of the Advisory Council, dated September 2006, entitled "Pathways to problems" subtitled "Hazardous use of tobacco, alcohol and other drugs by young people in the UK and its implications for policy". In the introduction of that report dealing with the role of the ACMD it said this:

"In its first 30 years, the ACMD has focused most of its attention on drugs that are subject to the controls and restrictions of the Misuse of Drugs Act (1971). Although its terms of reference do not prevent it from doing so, the ACMD has not considered alcohol and tobacco other than tangentially. The scientific evidence is now clear that nicotine and alcohol have pharmacological actions similar to other psychoactive drugs. Both cause serious health and social problems and there is growing evidence of very strong links between the use of tobacco, alcohol and other drugs. For the ACMD to neglect two of the most harmful psychoactive drugs simply because they have a different legal status no longer seems appropriate."

12. A little further on at page 22 in this report under the heading "Implications about findings of policy and practice" at paragraph 1.13 the Council says as follows:

"What are the implications of these insights into the mechanisms of action of psychoactive drugs and their effects? We believe that policy-makers and the public need to be better informed of the essential similarity in the way in which psychoactive drugs work: acting on specific parts of the brain to produce pleasurable and sought-after effects but with the potential to establish long-lasting changes in the brain, manifested as dependence and other damaging physical and behavioural side-effects. At present, the legal framework for the regulation and control of drugs clearly distinguishes between drugs such as tobacco and alcohol and various other drugs which can be bought and sold legally (subject to various regulations), drugs which are covered by the Misuse of Drugs Act (1971) ... and drugs which are classed as medicines, some of which are also covered by the Act. The insights summarised in this chapter indicate that these distinctions are based on historical and cultural factors and lack a consistent and objective basis."

13. In October 2006 the Secretary of State published a Command Paper number 6941, which was formally its reply to the fifth report from the House of Commons Science and Technology Committee, Section 2005/2006, entitled "Drug classification: making a hash of it?" Mr Stratton has drawn our attention to certain passages in that document, in particular, paragraph 31 headed "Transparency" which reads as follows:

"We acknowledge that in this sensitive policy area scientific advice is just one input to decision making, The Home Office should be more transparent about the various factors influencing its decisions."

Then a little later on it says as follows:

"Decisions are based on 2 broad criteria – (1) scientific knowledge (medical social scientific, economic, risk assessment) and (2) political and public knowledge (social values, political vision, historical precedent, cultural preference). Decisions must take account of scientific knowledge of medical harms, and social and economic evidence, as well as the insight provided by public consultation, and the knowledge and understanding provided by public bodies and Government departments."

Then a little later on in the report, paragraph 50, the headline is:

"In our view, it would be unfeasible to expect a penalty-linked classification system to include tobacco and alcohol but there would be merit in including them in a more scientific scale, decoupled from penalties, to give the public a better sense of the relative harms involved."

It then goes on:

"The Government fully agrees that the drug classification system under the Misuse of Drugs Act is not a suitable mechanism for regulating legal substances such as alcohol and tobacco. The distinction between legal and illegal substances is not unequivocally based on pharmacology, economic or risk benefit analysis. It is also based in large part on historical and cultural precedents. A classification system that applies to legal as well as illegal substances would be unacceptable to the vast majority of people who use, for example alcohol, responsibly and would conflict with deeply embedded historical tradition and tolerance of consumption of a number of substances that alter mental functioning (ranging from caffeine to alcohol and tobacco). Legal substances are therefore regulated through other means.

However, the Government acknowledges that alcohol and tobacco account for more health problems and deaths than illicit drugs and this is why the Government intervenes in many ways to prevent, minimise and deal with the consequences of the harms caused by these substances through its dedicated Alcohol Harm Reduction Strategy and its smoking/tobacco programme. At the core of this work, which is given considerable resources, is a series of education and communication measures aimed at achieving long term change in attitudes. It is through this that the public continues to be informed in an effective and credible manner."

14. I have quoted extensively from these publications in order to illustrate the fact that the debate, which Mr Stratton wishes this court to enter into decisively on one side rather than the other, is a wide ranging and complex debate operating at a number of different levels and being informed by a number of different disciplines. It is sought to be suggested that there is a clear and obvious contradiction between the approach taken by the Advisory Council and the approach taken by the Government as evidenced by those passages, to which I have referred.
15. I have to say that I am not persuaded of it. It seems to me that, in their different ways both bodies are approaching this complex and difficult social problem in ways which, if not identical, are certainly broadly along the same lines. To accept that there are two sides to this argument, and that there may be good reasons for accepting what Mr Stratton argues, that discrimination, as he sees it, is irrational, illogical and not evidence based, is by no means to accept that there is any way in which this issue is remotely justiciable. The immediate challenge in this case is to the Magistrates' Court's decision to set in motion the process of his trial, having been charged with a criminal offence, which is established by an Act of Parliament, both by primary legislation and through the Order in Council process and where the decision of the CPS to bring the charge is not for a moment being challenged as having been unconscionable or procedurally improper. Rather, he argues that the Magistrates ought to assert some fundamental common-law principle so as to decline to exercise the jurisdiction which they have to try such an offence essentially because, he says, they are obliged to accept his arguments that the legislation is being applied through the passage of subordinate legislation in a way which is discriminatory, irrational, illegal and a breach of the various human rights, which he has identified.
16. In my judgment, as a matter of law that is a hopeless argument. The Magistrates' Court, as he acknowledges, does not have any jurisdiction to declare, as incompatible with human rights, the legislation in question. In my judgment, the arguments which he puts forward do not begin to amount to a case for incompatibility, or for a case that any decision to prosecute is contrary to his human rights. What he has done is articulately to set out a particular policy position which he would prefer the Government to adopt, but which, thus far, it has not adopted. In my judgment that is not the business of this court and I have no hesitation in deciding that this is an unarguable challenge and that permission ought to be refused.
17. LORD JUSTICE LEVESON: I agree.
18. Thank you, Mr Stratton. I am afraid you will have to return to Waltham Forest magistrates and ventilate such arguments as you believe then are available to you in the context of the case being brought by the Crown Prosecution Service. Thank you.