Edwin Stratton challenge Government on drugs law....

[Don2]

Edwin Stratton, 43, of Leyton, London, is charged with production of cannabis under the Misuse of Drugs Act 1971 (“The Act”). He has today given notice of his intention to challenge the legitimacy of this prosecution in the High Court as an abuse of process. This assertion is evidenced by the bias and discrimination inherent in the policy that equally harmful drugs and those exercising property rights in such drugs should be treated differently in law. The defence claims a majoritarian abuse of power by the executive in the administration of drugs legislation. The rights afforded under the Human Rights Act 1998 guarantee freedom from arbitrary discrimination: this claim is grounded in the unequal protection afforded to drug property rights between ‘licit’ and ‘illicit’ drugs. This challenge seeks to hold the government and the Advisory Council on the Misuse of Drugs (“ACMD”) to account for an alleged irrational administration of the law which has led to countless thousands of lives lost and destroyed in the so-called ‘War on Drugs’.

1. Edwin is being prosecuted for his medical use of cannabis which he attempted to grow in the privacy of his home. He suffers from a hyper-sensitive form of coeliac disease which leaves him with constant pain and nausea for which cannabis is uniquely effective in his experience, and without the dreadful side-effects he experiences with prescription drugs.

2. Due to the nature of this legal challenge, which squarely puts the government’s application of the law in the spotlight - this case must, according to law, be heard in the High Court.

Edwin says: “Drugs legislation intends to protect us from harmful drugs. I absolutely agree with that aim, but the present policy is a disaster from a harm-reduction perspective. The legal classification

3. drugs is entirely inconsistent with the objective of creating a criminal tariff of punishments for drugs offences according to their relative harmfulness or potential for harm”. Support for this position has come from organisations such as Transform Drug Policy Foundation, Release, the Beckley Foundation, The Parliamentary Select Committee on Science and Technology and the ACMD’s own prevention working group in their 2006 report ‘Pathways to Problems’. The incoming chair of the ACMD co-authored a March 2007 report in the Lancet, which presented a hierarchy of drug harm as determined by experts, elucidating the arbitrariness of the current classification of drugs under the Act.

The discriminatory application of law is starkly obvious when we factor in the harms caused by alcohol and tobacco, which together kill 150,000 people in the UK every year. Despite over 800,000 hospital admissions last year due to alcohol abuse, cannabis users cause far less harm to themselves and others and yet are compelled not only to risk arrest, prosecution and imprisonment, but also must endure the risk of dealing with criminal elements, risk their health due to contaminants, and risk exposure to products of unknown strength – all of which Edwin sought to avoid by growing it himself. Despite awareness campaigns, the legal status of alcohol and tobacco falsely signifies that these drugs are safer than many controlled drugs; this results in a lack of proper legal protection for alcohol and tobacco users in comparison to the stringent controls over equally harmful controlled drugs. Edwin says that “my advisers consider that the government does not have the discretion in law to exclude dangerous drugs from the remit of the enforcement legislation on the arbitrary basis of ‘cultural and historical precedents’. Government insists that the responsible use of alcohol and tobacco can be maintained without subjecting either to controls under the Act, whereas this possibility is denied to users of other equally harmful drugs, these double standards

4. perpetuate detrimental consequences to users of all kinds of drugs”. (see HM Government official response to the Cabinet Office Better Regulation Executive (September 27th 2007).

5. Edwin is a part of a campaigning network known as the nascent DEA (Drug Equality Alliance). Individuals can register their support by visiting http://www.drugequality.org - the group is seeking to achieve one million site hits this year to illuminate support for a much needed transformation of the impasse causing so much harm to people who use drugs of all kinds.

Contact: edwinstratton1@googlemail.com

###

I spoke earlier to Ed who informed me that he appeared in court today for the first time and was given the green light to challenge his prosecution in the high court.

[blueberry]

[Win]

Well done, Edwin, this is they way we will beat these laws, by challenging them at every opportunity.

We are doing nothing wrong!

Win

[Don2]

LEYTON: 'Medicinal' cannabis user in High Court challenge

By Carl Brown »


A DISABLED MAN who claims to use cannabis to alleviate constant pain and nausea will launch a High Court challenge to his prosecution for growing the drug.

Edwin Stratton, 43, of Leyton High Road, suffers from hypersensitivity caused by coeliac disease, which causes an allergy to gluten protein found in wheat.

His condition is so severe that the mere smell of bread is enough to make him severely ill.

Mr Stratton says he found cannabis relieved his symptoms more effectively than prescription drugs, so he started to grow his own plants rather than buy from dealers.

However his small crop, which he insists was only ever used for personal use, was discovered by police when a fire in a wine bar below spread to flats above.

He was later charged with producing cannabis, which carries a maximum sentence of 14 years behind bars.

The challenge will claim that the law is contrary to Article 14 of the Human Rights Act, which prohibits discrimination on any grounds.

Speaking after a hearing at Waltham Forest Magistrates’ Court, which was adjourned pending confirmation of the challenge, Mr Stratton explained his stance.

He said: "Drugs legislation intends to protect us from harmful drugs, I absolutely agree with that aim, but the present policy is a disaster."

"It is hardly in the public interest to prosecute a disabled man for mitigating his symptoms.

"I smoke for my health, not to jeopardise it."

"Everybody knows that alcohol is more powerful than cannabis, yet somebody who drinks a glass of wine is not breaking the law, while a person who smokes cannabis to relieve symptoms is."

Mr Stratton formerly played drums in heavy metal band One Minute Silence, but can no longer play because of his condition.

He is due to return to Waltham Forest Magistrates' Court on November 6.

Source: Guardian

ww.guardian-series.co.uk/news/3744517.LEYTON___Medicinal__cannabis_user_in_High_Court_challenge/

[puffpoet]

Any updates due....?
_________________
Who would ban a plant
That God saw fit to grant?
www.myspace.com/puffpoet

[Sunshine Band]

Ed has issued his proceedings at the High Ct - this will take some time to process.

[Eddiesilence]

Hi;

Here's an update. I submitted my preliminary claim to the High Court on 5th November; but then I spent a further few weeks honing my arguments and rounding up the necessary evidence to provide robust footnotes.

The amended, updated claim was submitted to the High Court on 2nd December, where it is now awaiting permission for Judicial Review. After the new year, we should find out what the High Court intends to do.

In the following message I shall reproduce the entirety of the claim, (but without the footnotes or evidence, which can be supplied on request, so PM me!)

Edwin

[Eddiesilence]

In The High Court
Administrative Court

On the Application of:
Edwin Stratton (Claimant) V Waltham Forest Magistrates Court (Defendant)


Claimant's grounds for seeking permission for Judicial Review

1. Mr Stratton (the Claimant) seeks permission for a Judicial Review principally for the grant of a Prohibition Order for 'a stay' of the Defendant's stated intention to pursue an indictment against him. His only remedy in respect of this defence lies with this Court. The decision the claimant seeks to challenge is the decision to stand him for trial.

2. Stratton’s claim elucidates an abuse of power inherent in the policy of the unequal administration of primary legislation, which gives rise to severe unequal treatment (discrimination) under criminal law.

3. In setting out both common law and human rights arguments, Mr Stratton will make conscious and explicit the aforementioned and hitherto seemingly unarticulated form of severe discrimination. By the alleged under-regulation of the conduct of the majority and over-regulation of the conduct of minorities, contrary to the principle of equal applicability of law, the discrimination is experienced to cause harm - neither Parliament nor the people intended these demoralizing consequences. This Court is asked to intervene.


Background

4. Stratton was arrested on 28 May 2008 having being found with cannabis plants growing at his home within a small set-up. In his police interview he acknowledged that these plants were his and mentioned much about his medical condition that he instructs compels him to use cannabis , the use of which medical science supports for the chronic symptoms of his condition, namely intolerable pain and nausea. He was offered a police caution in respect of this matter on three occasions which he refused each time. The claimant was subsequently charged with being concerned in the production of cannabis, a controlled drug of Class C, by another in contravention of S4(1) of the Misuse of Drugs Act 1971 (“The Act”).

5. When summoned before the Defendant’s court on 9 October, he argued that an abuse of process preceded the indictment, and that by merit of the nature of the alleged abuse of process, that the Court ought rightly to consider themselves technically incompetent to adjudicate the merits of his claim. The Magistrates were then properly directed by the Clerk to the Court to grant an adjournment in order to permit Stratton to make this application to the Divisional Court. Once the Magistrates were satisfied that the Claimant was bona fide (in that his defence was indeed presenting this type of abuse of process claim), then it follows that the proper adjudication of this matter can only be first heard in this honourable Court. The established form of application to this Court is that of a ‘Mackeson application’. ,

6. Stratton cited the following cases as authority for the required adjournment; Cf. R. v. Central Criminal Court, ex p. Randle and Pottle, 92 Cr.App.R. 323, DC; R v Belmarsh Magistrates ex parte Watts [1999] 2 Cr.App.R. 188 at 195; Archbold § 1-192 & 4-50; R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42, HL, at 62.

7. The claimed irrationality detailed herein is illustrated by a recent development: a synthetic cannabis drug, Nabilone, a synthetic analogue of Delta-9 THC, has now been prescribed to Stratton (at an extraordinarily high cost relative to his costs incurred in producing his natural plant product). He notes that this medication only become a possibility after the Claimant had established genuine relief-giving effects from his discovery of cannabis as an effective medicine - although he muses that the efficacy of the prescribed medication is all but non-existent.

8. In failing to establish the equal protection of laws to a medical cannabis-user such as the Claimant, the government has caused him to be unfairly prosecuted for attempting to produce his own drug. This is something that he did in private to avoid the problematic criminalised market, and to necessarily control the purity of product he requires by growing an effective medical strain, organically, and under safe, clean conditions.

9. The details of Stratton’s claim are outlined within the following sections:

Section A - Common Law Claim
Section B - Human Rights Claim
Section C - Recent Evidence and Government Admissions





Section A - Detailed Statement of Claims under Common Law

10. Mr Stratton asserts that the Act is a generally neutral Act of Parliament that is being applied by Government arbitrarily; this violates the principle of equal treatment – a constitutional right and the quintessence of the Rule of Law.

11. Stratton argues that this unequal treatment is an unjustifiable and discriminatory abuse of the statutory power delegated to the Government by the Act. Accordingly this results in persons such as Stratton being deprived of liberty, security and property without due process of law.

12. The Rule of Law “contemplates a civil society under equal and just laws” administered fearlessly by the Courts. Due Process engages the Court to protect individuals against the “oppressions and usurpations” of Government power in implementing those laws. Hence, equal treatment means that the “laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”. In Matadeen v Pointu [1999] AC 98 at para 8, the Privy Council referred to ‘equal treatment’ as “one of the building blocks of democracy” stating:

“…treating like cases alike and unlike cases differently is a general axiom of rational behaviour”.

13. On its face, Stratton’s case concerns two forms of unjustifiable unequal treatment:

a. the failure to treat like cases alike, vis the unequal application of the Act to those concerned with equally harmful drugs without a rational and objective basis; and

b. the failure to treat unlike cases differently, vis the failure to treat those who peacefully enjoy property rights in controlled drugs as a different case from the mischief to which the Act is explicitly directed, conduct “capable of having harmful effects sufficient to constitute a social problem”, s1(2).

14. Recognising that the exercise of property rights in drugs, including ingestion, may result in a variable likelihood of costs and benefits to public welfare and individual autonomy and that these need to be properly balanced, Parliamentarians embodied two neutral principles of law in the Act:

a. An unequivocal intention to facilitate the management of risks to individuals and society which might result from activities with “dangerous or otherwise harmful drugs” which are “capable of having harmful effects sufficient to constitute a social problem”. This is read from the Act’s preamble conjunct the other essential measures to minimise drug consumption risks and harms stated in s1(2).

b. An unequivocal intention to evolve regulations and sanctions in proportion to each drug’s objective harm potential conjunct evidence of the efficacy and suitability of the regulations and sanctions in genuinely meeting the first principle. This aids procedural fairness and is read from ss1, 2(5), 7(7) & 31(3).

15. As Stratton is ultimately asserting that unequal application by Government of these two neutral (and laudable) principles of law amounts to an Abuse of Power, he must apply the common law principles for judicial intervention in administrative action as set out by Lord Diplock in the GCHQ case, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374:

“one can conveniently classify under three heads the grounds on which administrative action is subject to control by [the Courts]. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’”.

16. Acts of Parliament are to be applied generally and equally, “save to the extent that objective differences justify differentiation”. And whilst Parliamentary will is sovereign, the courts have taken the view that legislation itself is not capable of violating fundamental rights unless the statute explicitly declares so in clear unambiguous wording. In R v Secretary of State for the Home Department, ex p Simms [1999] UKHL 33, Lord Hoffman stated:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. […] But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. […] In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual”.

17. And, since the text of the Act does not indicate inequality before the law is intended, a reasonable inference drawn from the unambiguous juxtaposition of the word ‘drug’ in the Act’s title, preamble and first section against the phrase ‘controlled drug’ found in the Act’s second section, the Court must assume Parliament did not intend to undermine the Rule of Law or “the basic rights of the individual” via the Act.


Irrationality

18. No reasonable person would exclude the two most harmful drugs, alcohol and tobacco, from the scope of legislation designed to “make provision for dangerous or otherwise harmful drugs”. In so doing, government officers have insufficiently weighted the fact that alcohol and tobacco are harmful drugs whilst concomitantly giving too much weight to “historical precedence”, “cultural preference” and/or “political vision” of a “vast majority”.

19. Equally, no reasonable person would prohibit all property rights in controlled drugs, irrespective of harmfulness, as a method of reducing harmful drug property use. In so doing, Government ministers have insufficiently weighted the fact that responsible use of controlled drugs is both possible, common place and will continue regardless.

20. The consequence of Government’s irrational decisions is the prohibition of safer alternatives to legally available drugs. This cannot be the intention of the Act.

a. Factors not taken into account or not given sufficient weight include:

i. Evidence that alcohol and tobacco are drugs within the meaning of the Act and thus subject to its scope;
ii. Evidence that the distinctions between ‘legal’ and ‘illegal’ drugs are not based upon a consistent and objective basis and are thus arbitrary;
iii. Evidence that some drugs currently classified such as cannabis, the drug relating to Stratton’s indictment, are significantly less harmful than alcohol and tobacco; ,
iv. Evidence which shows that responsible use of controlled drugs is both possible and common place conjunct the unacceptability of prohibition to all “persons who use [drugs] responsibly”;
v. Evidence of less-restrictive regulatory options and the power to exercise them under ss7(1), 7(2) and 31(1) of the Act;
vi. Cabinet Office guidance on the Principles of Managing Risks to the Public, Principles of Good Regulation, Better Policy Making, etc.

b. Factors not excluded or given too much weight include:

i. Evidence of the Act’s use for improper purposes, i.e., to ‘send out signals’;
ii. “Historical precedent” and “cultural preference” conjunct “political vision”, i.e., evidence of the subjective attitudes and practices of the “vast majority”.
iii. The assumption that ‘responsible use’, supposedly possible only with ‘licit drugs’, justifiably distinguishes uncontrolled drugs from controlled drugs.
iv. Government’s self-interest in meeting its treaty obligations with third parties who are not the electorate.


Procedural Propriety (fairness, due process)

21. Common law imposes a duty to act fairly when “any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals”, although the requirements of fairness will depend upon “the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates”: Lloyd v McMahon [1987] AC 625, 702H. This duty to act fairly includes the principle of legitimate expectation, the rule against bias, the rule against fettering of discretion, and a duty to give rational reasons.


Unfulfilled Legitimate Expectation

22. Via bias and fettered discretion, Government has dashed the legitimate expectation created in 1970 by the then Secretary of State for the Home Department (the ‘SSHD’), the Rt. Hon. James Callahan MP, of “a more sensible differentiation between drugs … [divided] according to their accepted dangers and harmfulness in the light of current knowledge … provid[ing] for changes to be made in the classification in the light of new scientific knowledge”.

23. This failure to fulfil the legitimate expectation that regulations and penalties will evolve in light of new evidence (empirical evidence of both drug risks and the effectiveness of regulatory options) denies procedural fairness and ultimately results in arbitrary, inconsistent and severely disproportionate regulations and penalties.


Apparent Bias

24. A defining factor of unequal treatment which is prima facie offensive is a gross disrespect for human dignity founded in the dichotomous segregation of an inclusive group into opposites based on stereotypical assumptions of good, right, acceptable vs. unacceptable, wrong, bad, evil, dirty and shameful.

25. In this manner, Stratton alleges apparent bias on the part of government in the administration of the Act because Government fails to take into account and/or under-weighs the preferences of minorities and takes into account and/or overweighs the preferences of the majority. Specifically, Stratton asserts substantive unfairness due to apparent bias towards a majority Government belongs to versus a minority with differing “cultural preferences” .

26. Government appears biased in favour of the majority of the electorate whose preferences their political power depends on and biased against minorities whose attitudes do not directly affect their political power. Government is associated with the majority who consume or otherwise have interests in alcohol and tobacco as the majority of government officers interpreting and implementing the Act also consume or otherwise have interests in these drugs, i.e., bias by association.

27. In 2006, Government gave reasons for this apparent bias for the first time in Cm6941, employing the terms “historical precedent”, “cultural preference” and “political vision” whilst declaring that applying the principles of law embodied in the Act to alcohol and tobacco would be “unacceptable”.

28. Effectively, Government entices the electoral majority by not applying “the principles of law” to them, so as to “escape the political retribution … if larger numbers were affected”, and oppressively towards minorities to demonstrate that government is tackling the ‘real’ problem robustly. This is majoritarian scapegoating and does not pursue the legitimate aim of reducing the potential risks to individuals and society from the misuse of all dangerous or otherwise harmful drugs.


Fettering of Discretion

29. Apparent bias results in the unlawful fettering of government’s discretion to the majoritarian will (and executive contract or treaty) to the detriment of minorities and thus the public interest as a whole; Cf. Redereaktiebolaget Amphitrite v The King (1921) 3 KB 500 at 503.

30. As such, Government has consistently failed to consider other less restrictive regulatory options within the limits of their legal discretion (ss7 (1) & 7(2) conjunct s31), similar to those applied to alcohol and tobacco. In this way, decisions appear closed to objective evidence of the effectiveness of the current regulatory scheme and of each drugs actual objective risk potential.

31. Government has yet to demonstrate an overriding public interest in providing for the prohibition of some potentially dangerous drugs but not other drugs such as alcohol and tobacco which “Government acknowledge[d] … account for more health problems and deaths than illegal drugs.”

32. And, since 1971, the unequal treatment of drugs and their users has caused immense harm to society. Under-regulation of alcohol and tobacco has contributed to over a million deaths in the United Kingdom whilst the attempted over-regulation of controlled drugs has contributed to the imprisonment of thousands of otherwise law-abiding citizens and to the growth of an unregulated black market governed only by the law of unintended consequences.

33. The Act makes a distinction between drug use and drug “misuse which is having or appears to them capable of having harmful effects sufficient to constitute a social problem”. Otherwise, it would be entitled the ‘Use of (some) Drugs Act’.

34. Accordingly, if the threats presented by alcohol and tobacco misuse can be addressed without infringing the peoples’ basic liberties or Convention rights, it has not been shown why similar measures cannot adequately address the threats presented by controlled drug misuse.


Illegality

35. The Government’s policy of treating persons who exercise property rights in equally harmful drugs in an unequal manner under the 1971 Act without an objective and rational justification is unlawful, in that;

a. the 1971 Act does not give the SSHD the legal power to exclude the two drugs which account for the most harm to individuals and society from the scope of the 1971 Act, thereby causing unequal treatment. To do so undermines the legitimate aim of the Act, vis “to control particular drugs according to their comparative harmfulness either to individuals or society at large when they are misused…” , “…divid[ing] them according to their accepted dangers and harmfulness in the light of current knowledge… …providing for changes to be made in the classification in the light of new scientific knowledge.”

b. The 1971 Act gives no indication that unequal treatment is intended. Cf. R v SSHD ex p Simms [1999] UKHL 33.

c. Further, it is the legitimate aim of the 1971 Act for the regulations as well as penalties to be proportionate to objective evidence of harm, with the classes of drugs grouped according to their comparative harmfulness. If the two drugs which account for the most harm to individuals and society are excluded from the classes, this legitimate aim is undermined.

36. In JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry International Tin Council [1990] 2 AC 418, it was held that treaties which are not explicitly incorporated into domestic law by Parliament cannot give rise to rights or obligations; and since the Act does not give further effect to the UN drug Conventions, those treaties demanding unequal treatment are no more significant than those unincorporated international human rights treaties demanding equal treatment.

37. It is very respectfully submitted that judicial deference to the executive arm of Government would prove to be a disservice to the Parliamentarians whom enacted the Act to protect society from dangerous or otherwise harmful drugs, and indeed an injustice to the claimant.






Section B – Detailed Statement of Claims under Human Rights Law


Note: This claim is made under Article 14 of the Human Rights Act 1998 within the ambits of Articles 8, 9 and Protocol 1, Article 1. Articles 5,6 8, 9 as free-standing claims or with Article 14.


Article 14 – Prohibition against Discrimination

38. The Claimant asserts that the Act is being applied to him in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 of the Human Rights Act 1998, and within the ambit of other convention rights. This denies equal protection to the defendant, alleged to be engaged in property activities with “controlled drugs”, as defined by s2(1)(a) of the Act, with respect to analogous persons engaged in the identical property activities with the dangerous or otherwise harmful drugs alcohol and tobacco.

39. The Government’s policy:

"The Government's policy is and has been to regulate drugs which are classified as illegal through the Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace."

40. The Government’s position admits discrimination on the grounds of legal status and property within the ambits of Article 1 of the First Protocol, “protection of property”, Article 8 “respect for private life”, inter alia. Additionally, the Government’s position includes errors of law and fact. The Act is being administered arbitrarily within a set of distinctions based on “historical and cultural factors [that] lack a consistent and objective basis”.

41. It is submitted that this gives rise to unjustifiable discrimination; such arbitrary administration of the Act fails to distinguish between “drugs which the misuse is having or appears … capable of having harmful effects sufficient to constitute a social problem” and those drugs the misuse of which is not having nor is capable of having harmful effects sufficient to constitute a social problem. The Act is interpreted and implemented unequally with respect to consumers, producers and traders of (a) harmful drugs used by minorities, the drugs currently controlled under the Act, and (b) equally harmful drugs used by the majority, alcohol and tobacco, arbitrarily excluded from the Act. The Act therefore unjustifiably discriminates between those in the same position, those who consume or trade equally harmful drugs - thus failing to ensure that regulations and sanctions evolve proportionately with objective evidence of drug harmfulness.

42. There is also a failure to justifiably discriminate: regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use, production and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import. The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use, production or trade: (a) use or trade unreasonably harmful to the consumer or trader alone, ‘voluntary risks’, and (b) use or trade unreasonably harmful to others, ‘involuntary risks’. Voluntary risks do not infringe human rights while involuntary risks do.

43. This results in persons with interests in alcohol and tobacco being able to lawfully exercise full property rights in the dangerous drugs alcohol and tobacco, as the executive have exempted (de facto not de jure) them from the scope of the Act, whilst concomitantly persons with interests in drugs “controlled” by the Act are prohibited under severe criminal penalty from exercising property rights in those drugs even when they are found by objective evidence to be less harmful when used peacefully.

44. Stratton asserts that this difference of treatment is disproportionate, unlawful, unfair and unnecessary in a democratic society and results from an apparent bias which has irrationally fettered executive discretion via a majoritarian abuse of legal power threatening human dignity, basic human rights and the Rule of Law.

45. This is especially so where the exemption is contrary to the legitimate aim and principles for which the legislation was created and intended.

46. And so, whilst asserting that the “search for balance” … constitutes the foundation of a “democratic society”, in Chassagnou and Others v France [1999] 29 EHRR 615 at 112, the Strasbourg Court described the crux of such matters:

“Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”.

47. More, in Thlimmenos v Greece [2000] 31 EHRR 411 at 44 the Strasbourg Court said:

“The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.

48. Yet, as applied by the executive, the Act fails to justifiably distinguish the relevant differences between differing use risks and/or outcomes of controlled drugs use, vis responsible versus irresponsible use, i.e., use versus misuse.

49. In summary, as applied by successive Governments, the Act discriminates on the grounds of property, drug orientation, legal status, association with a national minority, and political power within the ambits of several Convention rights: Article 1 Protocol 1, Articles 8, 9, 5 and 6.

50. Consequently, the alleged irrationality ultimately results in arbitrary deprivations of liberty contrary to Article 5 of the Human Rights Act 1998. Cf. A & Others v SSHD [2004] UK HL 56 at 46 et seq.


Protocol 1 Article 1 – Respect for Property

51. The Act is clearly directed at controlling the use of drugs property and associated activities such as production of a controlled drug as in this case. Thus, the implementation of the Act’s measures is clearly within the ambit of Protocol 1, Article 1 of the ECHR.

52. And, whilst Parliament set prohibition of the exercise of property rights vis-à-vis “controlled” drugs as the default state of the Act, where it has been fettered for 36 years, sections 7(1)-7(2) explicitly make provision for Government to create by statutory instrument, after consultation with the ACMD, a progressively less restrictive control scheme analogous to the Medicines Act 1968, i.e., tailored to each “controlled” drug’s objective potential to harm individuals and society whilst allowing for the measures to evolve with the evidence base, thereby allowing for the reasonably safe or responsible exercise of property rights vis-à-vis ‘controlled drugs’ for non-medical and non-scientific purposes, s31(1)(a), i.e., “for doing things … that would otherwise be unlawful for them to do”.

53. Accordingly, blanket prohibition of property rights, irrespective of the harmfulness of a controlled drug, cannot be reasonably incidental to the Act’s legitimate aim of reducing risks to the public from harmful drug consumption.

54. Alternately, if such restriction on property rights vis-à-vis controlled drugs are proportionate and in the public interest then Government is failing to protect the public by allowing the exercise of property rights in relation to the equally or more harmful drugs alcohol and tobacco.

55. Stratton’s Article 1, Protocol 1 claim is not freestanding but conjunct discrimination in “the enjoyment of the rights and freedoms set forth in [the] Convention” on the grounds of property, drug orientation, association with a minority and legal status.


Article 9 – Freedom of Thought

56. Article 9 is engaged and infringed due to the nature of the property controlled under the Act; in the SSHD’s own words, “substances that alter mental functioning”. And since freedom of thought is an absolute right, any interference in or limitation upon thought engages it.

57. Government respects the right of consumers of the harmful drugs alcohol and tobacco to “alter mental functioning” but denies this right to consumers of ‘controlled’ drugs, many of which are significantly less harmful, particularly the drug cannabis in which Mr. Stratton has interests.

58. Alternately, if such restrictions on Article 9 rights vis-à-vis controlled drugs are proportionate and in the public interest then Government is failing to protect the public from the equally or more harmful drugs alcohol and tobacco.

59. Stratton’s Article 9 claim is freestanding and conjunct discrimination in “the enjoyment of the rights and freedoms set forth in [the] Convention” on the grounds of property, drug orientation, association with a national minority and legal status.


Article 8 – Respect for Private Life

60. In Pretty v United Kingdom [2002] 35 EHRR 1 at 62, the Strasbourg Court observed: “… even where […] conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State’s imposition of compulsory or criminal measures as impinging on the private life of the applicant.”

61. Thus, the compulsory criminal measures of the Act engage Article 8. And since Stratton’s activities were confined to his domicile they should be respected in the same manner as alcohol and tobacco producers are, i.e., subject only to necessary, reasonable and proportionate restrictions that facilitate freedom of contract, and proportionate controls on harmful modes of property use.

62. Alternately, if such restrictions on Article 8 rights vis-à-vis controlled drugs are proportionate and in the public interest then Government is failing to protect the public from the equally or more harmful drugs alcohol and tobacco.

63. Stratton’s Article 8 claim is not freestanding but conjunct discrimination in “the enjoyment of the rights and freedoms set forth in [the] Convention” on the grounds of property, drug orientation, association with a national minority and legal status.



Article 6 – Due process and Fair Trial Rights

64. Article 6 is engaged by the continuing failure of Government to exercise the duty to review regulations contrary to the intentions of the Parliament which designed the Misuse of Drugs Act 1971 to evolve with new evidence – a procedural safeguard to ensure proportionality, consistency and effectiveness. This has resulted in a ‘blatant and obvious’ discriminatory application of the Act, denying due process, and making a fair trial impossible.


Article 5 – Liberty

65. In making the exercise of property rights in certain controlled drugs criminal acts whilst excluding alcohol and tobacco – drugs used by the majority – from the scope of the Act, the SSHD discriminates against minority drug property users within the ambit of Article 5.

66. The outcome of this abusive exercise of the criminal jurisdiction by the SSHD is arbitrary investigation, harassment and detention of persons with interests in controlled drugs in general. The Claimant has endured arrest and detention, having his property seized and the always present threat of possible criminalisation / incarceration pending by merit of his drug of choice.

67. In Kurt v Turkey (1998) 27 EHRR 373 at 122, Strasbourg referred to “the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities” and to the need to interpret narrowly any exception to “a most basic guarantee of individual freedom”. The Act, as applied, violates this principle.






Section C - Recent Evidence and Government Admissions

68. The following précis of recent evidence is arranged in chronological order for ease of reference. It is these passages to which Stratton will most frequently refer.

69. On January 19th 2006, the then SSHD, the Rt. Hon. Charles Clark announced to Parliament that he was initiating a review of the drug classification system:

“The more I have considered these matters, the more concerned I have become about the limitations of our current system. Decisions on classification often address different or conflicting purposes and too often send strong but confused signals to users and others about the harms and consequences of using a particular drug and there is often disagreement over the meaning of different classifications. […] I will in the next few weeks publish a consultation paper with suggestions for a review of the drug classification system, on the basis of which I will make proposals in due course. […] one needs to proceed on the basis of evidence […] I want to emphasise to the House the importance of evidence and research on this subject”. (Emphasis added)

70. Heeding the SSHD’s call for proceeding on the basis of evidence, the House of Commons Science and Technology Committee Session 2005-06 took it upon themselves to investigate Government’s use of evidence in this theatre of law. They published their findings and recommendations on July 31st 2006 in a report entitled HC1031, Drug classification: making a hash of it? (“HC1031”). Some highlights are:

“With respect to the ABC classification system, we have identified significant anomalies in the classification of individual drugs and a regrettable lack of consistency in the rationale used to make classification decisions. […] we have concluded that the current classification system is not fit for purpose and should be replaced with a more scientifically based scale of harm”. (Emphasis added)

“The stated purpose of the classification system is to classify harmfulness so that the penalties for possession and trafficking are proportionate to the harm associated with a particular drug”.

“The Government’s desire to use the Class of a particular drug to send out a signal to potential users or dealers does not sit comfortably with the claim that the primary objective of the classification system is to categorise drugs according to the comparative harm associated with their misuse. It is also incompatible with the Government’s stated commitment to evidence based policy making since it has never under taken research to establish the relationship between the Class of a drug and the signal sent out and there is, therefore, no evidence base on which to draw in making these policy decisions”.

“[…] a paper authored by experts including Professor Nutt, Chairman of the ACMD Technical Committee, […] found no statistically significant correlation between the Class of a drug and its harm score as calculated by leading experts using the so-called Delphi method. Astonishingly, despite the fact that Professor Nutt is the lead author, the paper asserted that “The current classification system has evolved in an unsystematic way from somewhat arbitrary foundations with seemingly little scientific basis”. The paper also found that the boundaries between Classes were entirely arbitrary.”

“We conclude that, in respect of this case study, the Government has largely failed to meet its commitment to evidence based policy making”. (Emphasis added)

71. The “paper authored by experts including Professor Nutt, Chairman of the ACMD Technical Committee”, entitled Development of a rational scale to assess the harm of drugs of potential misuse, appears as Appendix 14 to the HC1031 report and has since been published in The Lancet (2007) 369:1047-1053. Crucially, it said:

“Our findings raise questions about the validity of the current Misuse of Drugs Act classification, despite the fact that this is nominally based on an assessment of risks to users and society. The discrepancies between our findings and current classifications are especially striking in relation to psychedelic-type drugs. They also emphasise that the exclusion of alcohol and tobacco from the Act is, from a scientific perspective, arbitrary. […] More, our findings reveal no clear distinction between socially accepted and illicit substances”. (Emphasis added)

72. On September 14th 2006, soon after the publication of Drug classification: making a hash of it? the Advisory Council on the Misuse of Drugs consummated a three-year study in a report entitled Pathways to Problems: hazardous use of tobacco, alcohol and other drugs by young people in the UK and its implications for policy’. It stated unequivocally that no consistent and objective basis for the distinction between licit and illicit drugs exists:

“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[…] 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. […] these distinctions are based on historical and cultural factors and lack a consistent and objective basis”. (Emphasis added)

73. The ACMD also admitted in Pathways to Problems (“P2P”) that in exercising their legal duty under the Act that they had discriminated upon the ground of legal status:

“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”.(Emphasis Added)

74. Forced to reckon with this, on October 13th 2006, in Cm6941, The Government Reply to the Fifth Report from the House of Commons Science and Technology Committee Session 2005-06 HC1031 Drug classification: making a hash of it? (“Cm6941”), Government declared:

“[T]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 a deeply embedded historical tradition and tolerance of consumption of a number of substances that alter mental functioning. Legal substances are therefore regulated through other means. However, Government acknowledges that alcohol and tobacco account for more health problems and deaths than illegal drugs …[but]… it should not be imputed that Government takes the harms caused by these drugs any less seriously”. (Emphasis added) ,

The recent evidence above elucidates severe discrimination; errors of fact and law, and an abuse of power.

75. The recent evidence indicates that Government implements the Misuse of Drugs Act 1971 in a manner which manifests unjustifiable unequal treatment by:

a. the unequal application of the Act to those concerned with equally harmful drugs based on errors of fact and law, irrationality, and bias; and by

b. failing to treat those who peacefully and responsibly enjoy property rights in controlled drugs as a different class from those who do not.

76. A reasonable reconstruction of the evidence shows that this claim is sustainable:

a. first, the July 2006 Science and Technology Committee report, HC1031, Drug classification: making a hash of it?, found “a regrettable lack of consistency in the rationale used to make [the critical risk management distinctions]” drawn by Government in their management of the Act’s classification system; hence, they concluded “the current classification system is not fit for purpose and should be replaced with a more scientifically based scale of harm”;

b. second, the September 2006 report of the Advisory Council on the Misuse of Drugs Pathways to Problems made it clear that in their professional and scientific opinion the critical risk management distinctions drawn by Government in the implementation of the Act are not targeted to the actual risks drugs present to individuals and society as the public interest, rationality and evidence demands but are instead drawn from “historical and cultural factors [which] lack a consistent and objective basis” and have led to a “neglect” for the public interest and that the ACMD shares some responsibility.,

c. third, in Cm6941, the Government’s reply to HC1031, Government defended their impugned risk management distinctions whilst claiming unpersuasively that three factors justify the unequal application of the principles of law found in the Act to equally harmful drugs and the consequent severe unequal treatment of those who seek to exercise property rights in controlled drugs:

i. “the Misuse of Drugs Act is not a suitable mechanism for regulating legal substances such as alcohol and tobacco”;

ii. the “historical and cultural” factors which the ACMD had declared four-weeks earlier in Pathways to Problems “lack[ed] a consistent and objective basis”;

iii. “A classification system that applies to legal as well as illegal substances would be unacceptable to the vast majority of people who use, [drugs], responsibly and would conflict with the existence of a deeply embedded historical tradition and tolerance of consumption of [some] substances that alter mental functioning”;

77. Upon cursory examination the new evidence supports Stratton’s claim that he suffers unjustifiable unequal treatment and that it actually arises via a failure by Government to drawn the proper risk management distinctions which evidence, rationality, the Act and the Rule of Law support and that Government’s attempt at justification is an admission of this claim. Accordingly, it is necessary to critically examine Government’s three justifications set out in Cm6941 and noted above and the impugned risk management distinctions which tautologically underpin their rationale.

78. The first justification Government proffers in Cm6941 for the unequal application of law, vis the Act is not a suitable mechanism for regulating the risks from legal drugs, is manifestly absurd and an insult to the Honourable Parliamentarians who toiled over it.

79. This first justification shows that Government has failed to establish three vital facts:

a. the term ‘drugs’ as employed by the Act is not synonymous with the expression ‘controlled drug’, s2(1)(a); thus

b. ‘drugs’ refers to all drugs irrespective of their legal status or purposes or modes of use (medical or non-medical, scientific or non-scientific, social or asocial); thus

c. alcohol and tobacco are firmly within the competence of the 1971 Act.

80. It is these three facts which underpin the ACMD’s admission in Pathways to Problems:

“Although [the Act’s] terms of reference [s1(2)] do not prevent it from doing so, the ACMD has not considered alcohol and tobacco other than tangentially. […] For the ACMD to neglect two of the most harmful psychoactive drugs simply because they have a different legal status no longer seems appropriate”. (Emphasis added)

81. Further, Government’s claim that the Act is “not a suitable mechanism” unveils two ungrounded assumptions – indeed two distinct errors of law – whereby they reason:

a. that they have the power to exclude two unquestionably harmful drugs from the scope of the Act, thereby exempting (de facto and de jure) certain individuals or classes of individuals from the application of the principles of a neutral law; and

b. that the application of the Act’s classification system to a drug commands the extinction of property rights for non-medical and non-scientific purposes.

82. With regard to the first error of law, vis the assumed power to exclude harmful drugs from the Act, neither the Act nor its subordinate legislation explicitly indicate classes of persons or harmful drugs which are exempt from the operation of the Act.

83. As to the second error of law, vis the assumption that the Act commands the extinction of property rights for controlled drugs with no medical or scientific purpose (explaining the exclusion of alcohol and tobacco), shows that Government has failed to understand and give effect to:

a. the Act’s legitimate aim as set out in the long title and s1(2), vis “to make … provision for dangerous or otherwise harmful drugs” […] “ which are being or appear … likely to be misused and of which the misuse is having or appears … capable of having harmful effects sufficient to constitute a social problem”; and

b. the unfettered nature of the regulatory discretion afforded Government under s31(1)(a) to the make lawful the peaceful enjoyment of property rights in ‘controlled drugs’ for non-medical and non-scientific purposes, i.e., “for doing things … it would otherwise be unlawful for them to do”, s7(1)(b), if reason shows such regulations are better suited to achieve the Act’s legitimate aim.

84. Thus, Government has failed to understand correctly the law which regulates their decision-making process and failed to see that Parliament has crafted a beautifully evolutive and dynamic legal framework with inherent regulatory flexibility suitable to all eventualities, classes of persons and drugs, particularly alcohol and tobacco.

85. The second tier of justification offered by Government in Cm6941 for the unequal application of the law are subjective factors exemplified by phrases such as “historical and cultural precedent”, “cultural preference” and “political vision”. But, none of these are credible justifications; quite the opposite, they are suspect indicia of unjustifiable majoritarian discrimination equally applicable to homophobia, sexism and racism.

86. And, whilst admittedly “historical precedent” may have a limited objective basis (under 90 years), “cultural preference” can only mean the subjective preference of the majority as Government has not consulted affected minorities and thus treats as irrelevant their cultural preferences. Hence, Government presents no evidence to underpin their subjective justifications which just four weeks prior had been declared worthless by the ACMD in Pathways to Problems:

“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 […]. At present, the legal framework […] distinctions are based on historical and cultural factors and lack a consistent and objective basis”. (Emphasis added)

87. Most importantly, obfuscated here is the real problem which basing a Drug Strategy on historical and cultural assumptions, factors, and/or precedents presents; it has the unfortunate affect of diverting the implementation of the Act from the actual risks drugs present to individuals and society; and thus upsets the balance between public welfare and individual autonomy. This is irrational, ineffective and contradicts Government’s stated commitment in their Principles of Managing Risks to the Public:

“Government will base all decisions about risks on what best serves the public interest. Action taken to tackle risks to the public will be proportionate to the level of protection needed and targeted to the risk.”

88. The third justification Government proffers in Cm6941 for the unequal application of the Act to those involved with equally harmful drugs is in two parts; the first part, vis that “A classification system that applies to legal as well as illegal substances would be unacceptable to the vast majority of people who use [drugs] responsibly”, is unjustifiable majoritarian discrimination which treats as irrelevant a substantial body of evidence showing:

a. that the peaceful exercise of property rights in controlled drugs, vis responsible and reasonably safe use and trade, is both possible and common place; and

b. that the prohibition of the peaceful exercise of property rights in drugs is equally unacceptable to minorities who use and trade controlled drugs responsibly.

89. On this, the 2002 Parliamentary Home Affairs Select Committee report, HC-318, The Government’s Drug Policy: is it working? stated:

“Around four million people use illegal drugs each year. Most of these people do not appear to experience harm from their drug use, nor do they cause harm to others as a result of their habit.”

90. The second part of Government’s third justification in Cm6941for the unequal application of the Act to those involved with equally harmful drugs is that ‘equal prohibition’, (assuming Government’s second error of law discussed above in paragraphs 81 & 83 underpins this reasoning), “would conflict with deeply embedded historical tradition and tolerance of consumption of a number of [drugs] that alter mental functioning”. (Emphasis added) This goes straight to the heart of freedom of thought, and elucidates a deep, unsettled legal controversy whereby certain drug mediated mental states are tolerated whilst others are not.


Edwin Stratton, 2nd December 2008; Assisted by Darryl Bickler

[Dilys]

That is some seriously useful and professional stuff Eddie.
Well done on getting stuck in and getting some great help with your case.
We are all here supporting you.
Love and very best wishes to you & yours.
You could really start something great with this!!!
Dilys (bowled over )

[Win]

I speechless, for once, as it is a work of art IMO.

Win

[All2Pot]

Im only just getting half way through the longer version of this info from Eddie. Fair play, if they can get passed that arguement, it will be solid proof that the law is not made to protect and serve this countries citizens.

[Alun]

without yet having read it - thanks Ed et al - I'll print and read it this evening

I have no doubt in the veracity and sense here, and just hope it convinces the judges that it is HIGH time we let the people grow

[Kush58]

Wow, my head is spinning! I will take time to read it again more slowly later when its quiet, but I like others place much hope in this case.

Good luck Ed.

[danant]

Yep, its a winner Eddie and keep us posted x.

[Alun]

I've read it now and I think follow the argument which is made well - seemingly in the right sort of language - and I have to wonder how it can possibly fail

prohibition is toppling folks - there remains just the pure stubborness and greed to get over