Effectively, Growing Your Own Has Been Decriminalised
CAUTION. The possession, cultivation, production, supply and importation of cannabis remain illegal. CLEAR neither condones nor encourages the breaking of any law. This article is our interpretation of the Sentencing Council drug offences guidelines as they relate to cannabis. Do not rely on our interpretation. You should take professional legal advice if you have any concerns.
A CLEAR Interpretation Of The Sentencing Council Drug Offences Guidelines Concerning Cannabis
Drug Offences. Definitive Guideline document
Drug Offences. Response to Consultation document
1. Section 125(1) (a) of the Coroners and Justice Act 2009 provides that:
“Every court – (a) must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.”
The guideline will apply to all offenders aged 18 and older, who are sentenced on or after 27 February 2012, regardless of the date of the offence.
It seems therefore that while these are “only” guidelines, the courts are obliged to follow them or, presumably, sentences outside these guidelines would be subject to appeal on those grounds alone.
2. So the government, yet again, tinkers around the edges of a badly implemented interpretation of a mechanism designed to reduce harms from drugs. The whole of the current drugs policy is in a total mess and needs restructuring from the bottom up. As Prof Nutt recently told Sky News: “The drug laws are not based on any kind of sense or evidence so any sentencing for drugs is questionable. What we should be doing is properly revising the drug laws so that the sentencing is proportionate to the harm of drugs”
However, we are where we are and, all things considered, these new guidelines appear to be a major step in the right direction generally for small scale home growers and specifically for small scale home grow medicinal users.
3. A key statement appears in the Response to Consultation document, question seven – ”Should “medical evidence that a drug is used to help with a medical condition” be included as a mitigating factor for possession offences?”
There was resistance to this suggestion from CPS and ACPO but the conclusion was stated as follows:
“…..numerous other consultees, including the International Drug Policy Consortium (IDPC), the Magistrates Association and Drugscope, referred to evidence of the medical bene?ts that the active ingredients of cannabis have in the treatment of conditions associated with Multiple Sclerosis and some forms of cancer. It was suggested that if the offender can bring to court evidence that they have been attempting to obtain the drug by legal means and written evidence from their medical practitioner that the use of the drug can alleviate the symptoms of their illness, then this should be a convincing mitigating factor. Some respondents, including the Advisory Council on the Misuse of Drugs (ACMD) and the Council of Circuit Judges, were keen that the mitigation should also include cases where the offender believes that cannabis is helping with his or her medical condition but in reality it is having no or only a placebo effect. The Council agrees that where cannabis is used to help with a diagnosed medical condition this should serve as a mitigating factor. The following wording will be included at Step 2 in the de?nitive guideline: “Offender is using cannabis to help with a diagnosed medical condition”.”
However, the specific phrase ”Offender is using cannabis to help with a diagnosed medical condition” only appears at step two in the possession section of the guidelines document under “Factors reducing seriousness or reflecting personal mitigation”. For all other sections this is the only reference to medical usage which is contrary to the implication of the statement in the Response to Consultation document. The apparent inconsistency and contradictory nature of these statements is a little worrying.
But assuming that possession and cultivation go hand in hand maybe the anomaly above can be ignored. So for medicinal users this mitigation requires a little bit of forward thinking by those affected.
4. Firstly, to prove you have been attempting to “obtain the drug by legal means”, approach your GP and ask for a Sativex prescription for your “diagnosed” medical condition. It will probably be refused either on applicability or cost grounds. If you can, persuade your GP to record that you use cannabis and find it highly effective and safe and there are no apparent adverse effects. Even if your GP does not agree that it is having a beneficial effect, the guidelines recognise the “placebo effect” – if you beligve it is working for you, that is enough. However, if your GP ticks the ‘cannabis user’ box on the patient database it will automatically flag you up as a drug abuser so ask your GP to note that there is no “abuse” in your case.
Secondly, enquire about a private prescription and get costs – these of course are prohibitive and beyond the financial means of the majority, compared with street prices.
Thirdly, write to the Home Office and explain that, to avoid breaking the law, you would like an import licence for Bedrocan. Again this will be refused by letter.
From the wording it appears that there may be a degree of wriggle room even without the above evidence but they do choose their words carefully and the word “diagnosed” is key, so make sure your diagnosis is recorded by your GP.
5. The guidelines for Production/Cultivation are:
Lesser role ‘if own operation, solely for own use (considering reasonableness of account in all the circumstances).’
Category 3 : 28 plants (domestic operation with assumed yield of 40g per plant): Sentence range – Low level community order (see Annex 1) > 26 weeks’ custody
Category 4 : 9 plants (domestic operation with assumed yield of 40g per plant): Sentence range – Discharge > medium level community order (see Annex 1)
6. There are also guidelines for importation and supply which set a limit of 100 grams: Sentence range – Band B fine (see Annex 2) > medium level community order (see Annex 1).
This could relate to importing Bedrocan from Holland or a group of friends “clubbing together” in much the same way as the cannabis clubs operate in Spain.
7. The guideline for possession will no longer take any account of quantity: Sentence range – Discharge > 26 weeks custody
The important point about these sentencing guidelines is that penalties have been reduced to such a level that I doubt whether the CPS will be interested in pursuing such cases, particularly not against medicinal users. Therefore, the police won’t be interested. These remain offences but with a little common sense and discretion we can now be free of the fear of persecution for growing and using cannabis.
CAUTION. The possession, cultivation, production, supply and importation of cannabis remain illegal. CLEAR neither condones nor encourages the breaking of any law. This article is our interpretation of the Sentencing Council drug offences guidelines as they relate to cannabis. Do not rely on our interpretation. You should take professional legal advice if you have any concerns.
My grateful thanks to Chris Stevens for his invaluable help in preparing this article.
Monday, 13 February 2012
Effectively, Growing Your Own Has Been Decriminalised. We Are FREE! | CLEAR
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