Jersey Unreported Judgments

2000/226

5 pages

ROYAL COURT

(Samedi Division)

 

13^th November, 2000

 

Before:  Sir Philip Bailhache, Bailiff,

and Jurats de Veulle and Bullen

 

Magistrate's Cour t Appeal

 

Jeremy John Evans

-v-

The Attorney General

 

 

Appeal against a sentence of a £500 fine or 25 days' imprisonment, in default of payment, following a guilty plea to 1 count of possession of a controlled drug (cannabis resin), contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978.

 

Appeal dismissed.

 

 

Advocate C.J. Scholefield for the appellant.

Advocate C. Yates on behalf of the Attorney General.

 

JUDGMENT

 

THE BAILIFF:

 

1.                  This is an appeal by Jeremy John Evans against the sentence of a fine of £500 or 25 days' imprisonment imposed in the Magistrate's Court on 31^st October, 2000, by Relief Magistrate Tricot, for an offence of possession of cannabis resin.

 

2.                  The facts are, briefly, that the police executed a search warrant at a house in St Clement and found in the room occupied by the appellant two lumps of cannabis weighing in total 78 grams, a roach end, some pipes and £700 in cash.  At a store rented by the appellant was found a set of electronic scales.  No charge of supplying cannabis was, however, preferred.

 

3.                  The appellant did not and does not deny that he smokes cannabis regularly.  He has a bad record which includes four convictions for drug related offences.  For those offences he has been in imprisoned, ordered to perform community service, and, most recently, bound over to be of good behaviour.

 

4.                  On the face of it, therefore, the sentence is neither wrong in principle, nor manifestly excessive.

 

5.                  Counsel for the appellant has, however, advanced the argument - as he did before the Relief Magistrate - that there are special circumstances in this case which warrant only a nominal sentence being imposed.  Those circumstances relate to the fact that the appellant suffers from a form of epilepsy and claims that cannabis offers some relief from that condition.  It is submitted by counsel that a defence of necessity could have been put forward on the basis that the commission of the offence was necessary in order to avoid or prevent death or serious injury.

 

6.                  However, the defence was not advanced in the Magistrate's Court for reasons which are not material this afternoon.  What is in issue in this appeal is whether the circumstances amount to mitigation and, if so, whether proper account was taken of that mitigation by the Relief Magistrate.

 

7.                  It is right to state that there is medical evidence to the effect that the appellant does suffer from idiopathic epilepsy and that the appellant's claim that smoking cannabis gives him some relief is supported to an extent by his general practitioner, Dr Ian Shenkin.  Indeed, Dr Shenkin goes so far as to say that if it were open to him to do so he would prescribe cannabis to the appellant.

 

8.                  These arguments, very similar in form, have been advanced on a number of occasions before English Courts.  In R -v- Obiorah (15^th June, 1998) Court of Appeal Criminal Division, the appellant grew cannabis and smoked it to relieve a medical condition involving a stricture of the urethra.  There was medical evidence that anti-inflammatory pain relieving drugs had given little benefit whereas cannabis helped him, from his perspective, rather more.  The Court of Appeal accepted the medical condition as a mitigating factor and suspended the sentence of imprisonment which had been imposed.

 

9.                  In R -v- Ward (17^th July, 1998) Court of Appeal Criminal Division, the appellant had also cultivated cannabis for his personal use and had been sentenced to 12 months' imprisonment.  According to his general practitioner Ward suffered from polyarticular arthritis.  The appellant claimed that smoking cannabis offered relief from the symptoms of that affliction.  Again, the medical condition was accepted as a mitigating factor and the Court reduced the sentence to one of 6 months' imprisonment.

 

10.              Mr Scholefield, who appeared for the appellant, also drew our attention to an interesting Canadian case in the Court of Appeal for Ontario.  The case was R -v- Parker (31^st July, 2000) where the appellant, who was an epileptic, contended that the smoking of marihuana substantially reduced the incidence of epileptic seizures and that the prohibition on the possession of marihuana was unconstitutional and infringed his rights under the Canadian Charter of Rights and Freedoms.  Counsel submitted that the relevant provision in the Canadian Charter was in very similar terms to the equivalent article in the European Convention on Human Rights.  The Island is bound by that Convention but it is not yet part of our domestic law.

 

11.              The Canadian Court of Appeal referred to a report from the House of Lords Select Committee on Science and Technology which commented at paragraph 8.7:

 

"...people who use cannabis for medical reasons are caught in the front line of the war against drug abuse.  This makes criminals of people whose intentions are innocent, it adds to the burden on enforcement agencies, and it brings the law into disrepute.  Legalising medical use on prescription, in the way that we recommend, would create a clear separation between medical and recreational use, under control of the health care professions.  We believe it would in fact make the line against recreational use easier to hold."

 

12.        It is not, at this stage, necessary to analyse closely the arguments used in the Canadian judgment, nor the judgment itself.  Perhaps, when the Human Rights (Jersey) Law, 2000 comes into force the Court will be required to consider the interesting constitutional issues which are raised by the Court of Appeal for Ontario.  But that time has not yet arrived.

 

13.        The current position in the United Kingdom appears to be that the arguments for and against the medicinal use of cannabis or some of its ingredients are still unresolved.  The Ninth Report of the House of Lords Select Committee reviewed the evidence and concluded at paragraph 5.31:

 

"There is some anecdotal evidence to support the possible use of cannabis or cannabinoids in the treatment of epilepsy, but little more.  Cannabinoids can exert both convulsant and anticonvulsant effects in various animal tests.  Of greatest interest are the anticonvulsant properties of the naturally occurring cannabinoid cannabidiol; this compound is essentially devoid of the psychoactive effects of THC.  The limited clinical data available on the use of cannabidiol in the treatment of epilepsy are, however, equivocal and based on very small numbers of patients.  The BMA report concludes, "It could possibly provide a useful adjunctive therapy for patients poorly controlled on presently available drugs.  THC and other psychoactive cannabinoids are probably not suitable as anticonvulsants"."

 

14.        It seems to us on the limited material that has been placed before us that there are conflicting views as to whether cannabis has a genuine palliative effect.  We accept that a certified medical condition which appears to be relieved by the consumption of cannabis is a factor which must be taken into account by the Sentencing Court and may well be a mitigating circumstance.

 

15.        We also accept, as the Relief Magistrate appeared to accept in the Court below, that the appellant genuinely believes that the consumption of cannabis taken in conjunction with other prescribed medicines has helped to reduce the incidence of epileptic seizures.  It is therefore in this case a mitigating circumstance to be taken into consideration.

 

16.        We have therefore to ask ourselves whether the sentence of a fine of £500 imposed by the Relief Magistrate was wrong in principle or manifestly excessive.  The fine is at the top end of the Magistrate's guidelines although it may well be that those guidelines now need revision.  On the other hand the appellant has several convictions for drug related offences.  Furthermore the amount of cannabis involved - 78 grams - was not insignificant.  We have reached the conclusion that the Relief Magistrate took account of all the material mitigation and that the fine which he imposed was neither wrong in principle nor manifestly excessive.  The appeal is therefore dismissed.

 

17.        Mr Scholefield, you shall have your legal aid costs.

Authorities

 

 

R -v- Kaha Obiorah (15^th June, 1998) Court of Appeal Criminal Division.

 

R -v- Ward (17^th July, 1998) Court of Appeal Criminal Division.

 

R -v- Peters (1999) 2 Cr.App.R.(S) 334.

 

R -v- Evans (2000) 1 Cr.App.R.(S) 108.

 

In re Young (1998) JLR 383.

 

Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights:

            Chapter 3.

 

R -v-  Parker (31^st July, 2000) Court of Appeal of Ontario.

 

N.