Analysis: Possession of Drugs for Medical Reasons.
01 February 2021
In recent years there has been much debate over the legalisation versus criminalisation of drugs, and the efficacy of each approach in combating the negative effect of drugs on society. The question of whether drugs should be legalised has been on the poll cards at several recent major elections, including in New Zealand and the USA. An increasing number of jurisdictions have legalised cannabis, for recreational as well as medical use, and in November 2020 the state of Oregon voted to legalise the possession of small amounts of hard drugs.
The United Kingdom is some way away from legalisation of drugs, although the debate continues. It remains illegal to possess controlled drugs for recreational purposes, or for medical purposes unless prescribed by a doctor. Since 1 November 2018, it has been legal in the UK for specialist doctors to prescribe cannabis-based drugs to patients on a case-by-case basis and in very limited circumstances. The law does not specify the types of conditions for which doctors may prescribe medical marijuana, but the patient must have an unmet special clinical need that cannot be met by licensed products.
Such prescriptions are granted only very rarely, leading to frustration amongst those who feel that cannabis would be of some benefit to their condition, or that of a family member. For example, people suffering from conditions such as multiple sclerosis, and parents of children suffering from severe epilepsy, who may experience hundreds of fits a week, report that cannabis-based products are the only effective treatment. Some people take matters into their own hands and go to vast lengths to obtain cannabis-based medication, such as travelling to countries where such medication is legal, and attempting to bring it back into the UK. For others, the cost of this course is prohibitive. Some people resort to purchasing street cannabis for consumption. Both of these options are breaking the law. People who may not have received so much as a speeding fine before can very quickly find themselves on the wrong side of the law, and looking down the barrel of a criminal conviction and a potentially lengthy sentence.
The Sentencing Council guideline for possession of a controlled drug sets out various factors reducing seriousness or reflecting personal mitigation. One of these mitigating factors makes direct provision for individuals who are self-medicating with cannabis: ‘offender is using cannabis to help with a diagnosed medical condition’. It is simple enough to explain why an individual might be in possession of cannabis for personal medical use, and this does afford some mitigation.
The situation may not always be so clear cut where the Defendant has been convicted of possession with intent to supply, for example, in the case of someone who deals drugs in order to earn drugs for personal use, or to pay off a drugs debt accrued against their own drugs use. Sentences for supplying drugs are much more severe than for simple possession, so it is essential that defence counsel advance appropriate mitigation to assist the court in fully understanding the circumstances of offending, and impose a just sentence. The guideline for possession of controlled drugs with intent to supply does not have an equivalent provision.
Two mitigating factors in the guideline which may assist defence counsel are ‘supply only of drug to which offender addicted’ and ‘serious medical conditions requiring urgent, intensive or long-term treatment’. If the defendant suffers from a serious medical condition for which they require frequent treatment, this will make any prison sentence served much more onerous. If the defendant is convicted of supplying cannabis, and that is the drug to which they are addicted, then that also affords some mitigation. However, if they are addicted to cannabis but supplying cocaine it will not be of much use!
Further assistance can be found in the case of R v Abdul Tahid  EWCA Crim 613. The Defendant in this case pleaded guilty to possessing a Class B drug with intent. In mitigation, the Defence produced a letter from the Defendant’s GP setting out setting out his medical conditions, including myofascial pain and headaches and added that the appellant had told him (the doctor) that he used cannabis as a relief. On appeal, sentence was reduced from 10 months’ imprisonment to 8 months’ imprisonment.
With respect to both simple possession and possession with intent to supply, mitigation on the basis of self-medication will carry more weight if it relates to the treatment of serious conditions substantiated by medical evidence, especially where it relates to the health of a child. It is likely that less weight will be attached to a bald assertion that a defendant possessed cannabis to smoke to assuage anxiety. Steps should be taken to ensure that medical evidence is available at sentence. This may include medical notes, copies of prescriptions, or a letter from a doctor setting out the conditions suffered. Character references are also likely to be of assistance.
Members of Crucible have significant experience representing people charged with drugs offences at every stage of proceedings. If you need assistance from Crucible counsel, please contact the clerks at firstname.lastname@example.org.