The British Court of Appeal has ruled that medical marijuana users or suppliers in the United Kingdom may not avoid conviction by arguing that their conduct was "excused or justified by the need to avoid a greater evil." If the court had ruled in favor of the so-called necessity defense, the use and supply of medical marijuana would have been effectively legalized in Britain. But this ruling puts British medical marijuana users and suppliers in the same boat with other cannabis consumers on the Sceptered Isle.
In a nod to the controversy over the medicinal use of marijuana, however, the court also held that the issue was one of great public importance. That finding leaves the way open for an appeal to the House of Lords.
In the May 27 ruling, the Court of Appeal was not swayed by evidence that marijuana was more effective than some conventional forms of pain relief or by evidence that it does not have potentially serious or life-threatening side effects. Despite such evidence, the court held that the necessity defense could only apply to people who broke the law in order to avoid "imminent danger of physical injury."
In upholding the 1971 Misuse of Drugs Act, the three-judge panel found that the act's general prohibition on marijuana meant that the "disbenefits" of allowing the medicinal use of marijuana outweighed any benefits individual patients may perceive. Marijuana was made a controlled substance under that act and was scheduled as a Class B, like heroin or amphetamines, until last year, when it was rescheduled as a less harmful Class C drug. But in the wake of widely publicized research suggesting a link between mental health problems and marijuana use, the government of Prime Minister Tony Blair has asked for that decision to be reviewed.
The Court of Appeals ruling bundled together appeals of convictions by five people and a review of one case, that of Jeffrey Ditchfield of North Wales, who was acquitted in a lower court of possessing marijuana with the intent to supply after he successfully used the necessity defense. Ditchfield was wrongfully acquitted, the Court of Appeal said; the necessity defense should not have been applied. Despite the high court's ruling, Ditchfield cannot be retried.
In the other cases, the court upheld the convictions of double amputee Barry Quayle, Reay Wales, who used cannabis to relief pain from serious bone and pancreatic conditions; Graham Kenny, who used it for chronic back pain; and Anthony Taylor and his assistant, May Po Lee, convicted of importing marijuana for distribution to the 700 patients of Taylor's holistic health clinic in London's King's Cross. All had been given fines, community service, or suspended jail sentences.
Norfolk anesthetist Dr. William Notcutt, whose research was used to help develop the cannabis-based drug Sativex and who submitted written evidence in favor of medical marijuana to the court, said the ruling means that patients will be forced into criminality. "I'm not entirely surprised by this decision, but it serves to highlight the importance of making a medicinal product available to patients as soon as possible," he told the Eastern Daily Press (UK) after the decision came down. "The treatment has been available for more than two years now, and we are still not able to prescribe it. Only today I talked to a patient who could benefit hugely from such treatment," Notcutt said. "From a patient's point of view it must be very frustrating. They don't want to break the law, but until a medicinal alternative is available, some may feel they have to."
Notcutt pointedly observed that while Sativex has now been approved for use in Canada, British health authorities have refused to approve it in the land where it was developed. "The most galling thing is doctors in Canada will soon be able to prescribe Sativex, and we're trailing behind. The treatment has been available for two years now, and we are still not able to prescribe it."
While the British Medical Association opposes the medicinal use of marijuana as unsafe and unproven, Dr. Peter Maguire, the deputy chair of the organization's Board of Science, seemed to suggest it could live with Sativex. "BMA research has shown that crude cannabis is unsuitable for medical use because it contains toxic components that are harmful to human health," he told the BBC News. "However the potential for cannabis-based medicines to offer effective pain relief can not be overlooked and the BMA would like to see more research in this area."
But doctors' apparent sympathies for a cannabis-based medicine sold by prescription for the profit of a pharmaceutical company are unlikely to bring much solace to medical marijuana users and supporters in Britain. As of last week, they are back out on the streets with the rest of the country's pot smokers.