Altham v R.

On 29 March 2004 in the Crown Court at Preston before Judge Cornwall the appellant pleaded guilty to a single count of possession of a controlled drug of Class B contrary to section 5 (2) the Misuse of Drugs Act 1971. The drug in question was 5.76 grams of cannabis resin. He appeals against conviction by leave of the single judge. The sole issue on this appeal is whether the appellant was entitled by reason of Article 3 of the European Convention on Human Rights (“ECHR”) to run the defence of necessity.

The judge ruled that, on the undisputed facts, the defence of necessity (or duress of circumstances as it is sometimes called) should not be left to the jury. Following the judge’s ruling the appellant pleaded guilty and was given an absolute discharge.

The appellant was involved in a serious road traffic accident 15 years ago in which he dislocated both hips and sustained a left sided pelvic fracture. Surgery on two occasions proved unsuccessful. In 1997 his left hip was removed entirely and he has been in chronic pain in his lower limbs ever since.

Since 1997 he has tried a number of pain relief strategies, including acupuncture and trycyclic antidepressants such as amitriptyline. These treatments have caused drowsiness and stomach upsets and others have been ineffective.

The appellant admitted having been a recreational user of cannabis for the last fourteen years. He further admitted to smoking three cigarettes per day containing approximately 1.5 grams of cannabis in each one. He informed Dr Hacking, approximately six months before his arrest, of his first experience of the beneficial effects in the form of pain relief from smoking cannabis.

On 11 July 2002 a police officer went to the appellant’s house in connection with an unrelated matter and discovered 5.76 grams of cannabis resin. The appellant immediately said that the drug was his and that he used it to ease the pain in his hip and leg. He repeated this when interviewed.

The defence argument at the pre-trial issue was that the defence of duress of circumstances was available to him on the basis he was suffering from serious physical harm as applicable in the defence of duress and that that defence should be left to the jury.

The prosecution response was that pain, however serious, can never amount to serious physical harm in the context of that defence. Pain is subjective and the appellant should not have the defence open to him for possession of an illegal drug.

In his skeleton argument Mr Denney, who has appeared for the appellant as he did in the court below, advanced three arguments which can be described as the domestic point, the Article 3 point and the Article 8 point. Before us he accepted that the domestic point and the Article 8 point were no longer open to him in the light of this court’s decision in R v Quayle and others [2005] EWCA Crim 1415. He has therefore advanced this appeal on the basis of Article 3 alone.

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

In summary, Mr Denney’s argument runs thus:

We must emphasise the limited ambit of this appeal. In Quayle another division of this court considered five cases where the defence of medical necessity was raised in respect of cannabis offences. The suggestion was that whatever the legislation, policy or scheme of the misuse of drugs legislation, the court should interpret or extend the common law defence of necessity so as to avoid an inconsistency with Article 8. That suggestion was rejected in Quayle and precisely the same submission is made in the present case but with the substitution of Article 3 for Article 8. Mance LJ, as he then was, went into the question in very great detail and concluded that none of the defendants in any of the cases before him was able to rely at trial on any facts which could at common law give him or her any defence of necessity. Mance LJ said at para 67 that the legislative policy and scheme of the Misuse of Drugs Act 1971 was clear. He went on:

“We have accepted that this does not mean that a common law defence of duress by threats or necessity by extraneous circumstances can never have a place (paragraph 57 above). But its role cannot be to legitimise conduct contrary to the clear legislative policy and scheme, as would in our view be the effect of the defences suggested in the appeals and reference before us for the reasons given in para 56 above. We see no basis in Article 8 for altering our conclusions regarding the scope and inapplicability of the common law defence of necessity by extraneous circumstances in the context of the present appeals and reference.”

Mr Denney accepts the decision in Quayle but submits that the court left open, because it did not deal with it, the Article 3 point. The facts in Quayle’s case were briefly as follows. He was 38 and a bilateral below knee amputee as a result of operations in 1997 and 2000. He suffered pain, which he rated as usually 8/10 and at worst 12/10. On a search of his home he was found to be cultivating cannabis plants in his loft for his personal use. He said he could not stop because it was the only thing that gave him relief. He did not take diazepam and tamazepam which had been prescribed because they “knocked him out”, and he could not risk not hearing his two children who had attention deficit disorder. His case was supported by a consultant anaesthetist who said there was no question but that Mr Quayle had taken cannabis with benefit to his chronic symptoms. Mr Edward Fitzgerald Q.C. advanced the argument to the Court of Appeal (although not apparently to the court below) that Mr Quayle was a suicide risk. But the Court of Appeal said the reported thoughts of suicide could not have led him to take cannabis.

The facts of Quayle are very close to those in the present appeal and, if there is anything in the Article 3 argument, it is difficult to see why the point was not taken by Mr Fitzgerald in Quayle.

Returning to the five steps in Mr Denney’s argument, it is upon step 3 on which most of the argument has focused and upon which in our judgment his submission fails. The fundamental question is how, if at all, Article 3 bites on the facts of the present case. The prohibition in Article 3 is against subjection to torture or to inhuman or degrading treatment or punishment. The present case is not concerned with torture; the focus is on degrading treatment. As Lord Hope said in R v Secretary of State for the Home Department ex parte Adam and others [2005] UKHL 66 at para 46, citing Pretty v United Kingdom 35 EHRR 1, 32 para 50, Article 3 may be described in general terms as imposing a primarily negative obligation on states to refrain from inflicting serious harm on persons within their jurisdiction. He continued:

“The prohibition is in one sense negative in its effect, as it requires the state – or, in the domestic context, the public authority – to refrain from treatment of the kind it describes. But it may also require the state or the public authority to do something to prevent its deliberate acts which would otherwise be lawful from amounting to ill-treatment of the kind struck at by the Article.”

Lord Hope went on:

“47.

The fact that an act of a positive nature is required to prevent the treatment from attaining the minimum level of severity which engages the prohibition does not alter the essential nature of the Article. The injunction which it contains is prohibitive and the prohibition is absolute. If the effect of what the state or public authority is doing is to breach the prohibition, it has no option but to refrain from the treatment which results in the breach. This may mean that it has to do something in order to bring that about. In some contexts rights which are not expressly stated in the Convention may have to be read into it as implied rights: see Brown v Stott [2003] 1 AC 681, 703 D–G, 719 E–H. But the right not to be subjected to inhuman or degrading treatment or punishment is not an implied right. Treatment of that kind is expressly prohibited by the Article.”

Adam was a case where the issue was whether the Secretary of State in failing to provide support pursuant to section 55(5)(a) of the Nationality Immigration and Asylum Act 2002 (the 2002 Act) for asylum seekers who had not made timeous claims for asylum could be in breach of Article 3. It was held that in each of the cases under consideration there was an imminent prospect that the way the asylum seekers were being treated by the Secretary of State in the context of the relevant legislative regime would lead to a condition that was inhuman or degrading.

The background to that case was this. Section 95 of the Immigration and Asylum Act 1999 authorises the Secretary of State to provide or arrange for the provision of support for asylum seekers who appear to be destitute or likely to become so within a prescribed period. But the authority is revoked by section 55(1) of 2002 Act where the Secretary of State is not satisfied that the claim for asylum was made as soon as reasonably practicable after the person’s arrival in the United Kingdom. However, the prohibition in section 55(1) is qualified by section 55(5) which authorises the Secretary of State to provide or arrange for the provision of support to a late applicant to the extent necessary for the purpose of avoiding a breach of that person’s Convention rights. But the Secretary of State’s freedom of action is closely confined.

Lord Scott of Foscote referred to the issue of whether the respondents in that case were the recipients of “treatment”. He drew a distinction between the mere failure of a state to provide an individual with accommodation and the wherewithall to acquire food and the other necessities of life which could not by itself constitute “treatment” for Article 3 purposes, and the statutory regime with which that case was concerned. Treatment, he said, requires something more than mere failure, but the removal by section 55(1) of the 2002 Act of those destitute asylum seekers for whom the Secretary of State was able to make provision, coupled with the bar on their supporting themselves by their own labour, constituted “treatment” for Article 3 purposes. Lord Scott drew an analogy with the National Health Service. While the ECHR does not require signatory states to have a national health scheme free at the point of need, a statutory bar preventing asylum seekers, or a particular class of asylum seekers, from obtaining National Health Service treatment would plainly be “treatment” of them for Article 3 purposes.

Lord Brown of Eaton-Under-Heywood found it unhelpful to attempt to analyse obligations arising under Article 3 as negative or positive and the state’s conduct as active or passive. He said the real issue in the type of case before the court was whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.

It will immediately be apparent that the circumstances in Adam were very different from those in the present case. In Adam the court was concerned with the exercise by the Secretary of State of powers and duties under a statutory regime and the consequences for the individuals concerned. In what manner has the state subjected the appellant to degrading treatment in the present case? What has it done, or indeed failed to do, to cross this threshold?

There are two features of the present case that stand out. First, the appellant’s condition of which complaint is made arises from his road accident many years ago rather than anything done by the state or any public authority. Second, the appellant chose to use cannabis.

The second of Mr Denney’s five propositions is that there are circumstances where severe medical symptoms can amount to inhuman or degrading treatment. He relied on Ireland v the United Kingdom 2 EHRR 25, 80 para 167 where interrogation techniques that caused, if not actual bodily injury, at least intense physical and mental suffering to the person subjected to them and also lead to acute psychiatric disturbance during interrogation fell into the categories of both inhuman and degrading treatment. The appellant in the present case did not suffer from acute psychiatric disturbance but could properly be described as the victim of intense physical and mental suffering. But the court in Ireland was looking at the effect upon the victims in the context of the treatment to which they had been subjected rather than looking at their condition in isolation. Mr Denney submits that the fact that the ultimate cause of the appellant’s condition was the road accident rather than anything done by the Secretary of State is not a complete answer to his argument. The one and only way in which the appellant’s symptoms can be alleviated to the point that he no longer suffers degrading treatment is by taking cannabis, a prohibited substance. Since he cannot do that without committing a criminal offence and rendering himself, in theory at least, liable to imprisonment, there is a conflict with Article 3 which can only be resolved by reading the Misuse of Drugs Act 1971 as subject to the defence of medical necessity. In our view Mr Denney’s argument seeks to elevate the state’s obligation under Article 3 to something well beyond an obligation not to subject an individual to the treatment prohibited by the article.

In Pretty the applicant, who suffered from motor neurone disease, sought an undertaking from the Director of Public Prosecutions that her husband would not be prosecuted if he assisted her to commit suicide in accordance with her wishes. She complained that the refusal of the Director of Public Prosecutions to give such an undertaking infringed her rights under various articles of the Convention including Article 3. The European Court of Human Rights held that there had been no violation of Article 3 or indeed any other Convention right. At paragraph 52 the court had this to say with regard to the types of “treatment” which fall within the scope of Article 3.

“…….the Court’s case law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”

The court went on to point out that it was beyond dispute that the United Kingdom Government had not, itself, inflicted any ill-treatment on the applicant. Nor was there any complaint that the applicant was not receiving adequate care from the state medical authorities. The applicant’s situation was not comparable with the case of D v United Kingdom, (1997) 24 EHRR, 423, in which an AIDS sufferer was threatened with removal from the United Kingdom to the Island of St Kitts where no effective medical or palliative treatment for his illness was available and he would have been exposed to the risk of dying under most distressing circumstances. The responsibility of the state would have been engaged by its act (“treatment”) of removing him in those circumstances. There was no comparable act or “treatment” on the part of the United Kingdom in Pretty.

In the present case the state has done nothing to exacerbate the appellant’s condition which arises from circumstances quite unrelated to anything done by the state or any public authority.

Mr Denney’s argument seems to us to pre-suppose that not withstanding that the cause of the appellant’s condition was the road accident fifteen years before, the state has an Article 3 obligation to permit him to take any steps that are necessary to alleviate his condition, not withstanding that those steps breach the criminal law. Mr Denney sought to rely on the judgment of Munby J in R (Burke) v General Medical Council [2005] QB 424 in support of his contention that a failure to act can amount to a breach of Article 3. Both a failure to start life prolonging treatment and the withdrawal of it could, it was said, amount to a breach of Article 3. The decision of Munby J was, however, reversed on appeal (see [2005] EWCA Civ 1003). In its judgment the Court of Appeal counselled strongly against the use of Munby J’s judgment in future cases, much of who’s reasoning went far beyond what was necessary to decide that case and there were aspects of it that caused the Court of Appeal serious concerns. We do not think that Burke provides any support for Mr Denney’s argument that Article 3 bites on the present case.

In our judgment the state has done nothing to subject the appellant to either inhuman or degrading treatment and thereby engage the absolute prohibition in Article 3. If the true position is that, absent a defence of necessity, the appellant will either break the criminal law or continue to suffer degrading treatment, the state is not in breach of its Article 3 obligation. We make the qualification about the true position because he is now taking another drug, ketamine, that has been prescribed for him and his pain has been alleviated to such an extent that he no longer uses cannabis.

We do not think that this is a case in which, to use the words of Lord Brown in Adam, the state is properly to be regarded as responsible for the harm inflicted on the appellant. Nor do we think that Article 3 requires the state to take any steps to alleviate the appellant’s condition.

As Mance LJ pointed out in Quayle at para 54, the defence of necessity advocated by the appellants in these cases would, if it exists in law, enable individuals to undertake otherwise unlawful activities without medical intervention or prescription. He said:

“Its starting point is that the Secretary of State shall exercise his power to enable doctors (among other qualified professionals) to have, prescribe and supply controlled drugs (see section 7(3) of the 1971 Act and the consequential provisions of Misuse of Drugs Regulations 2001 dealing with importation set out in paragraph 11 above). But, under s 7(4), the Secretary of State may exclude the operation of s 7(3) in relation to a drug, if of the opinion that it is in the public interest that its production, supply and possession should be wholly or partly unlawful or unlawful except for purposes of research or other special purposes or except under a licence or other authority issued by him. Cannabis, cannabis resin and most cannabinoids are, under SI 2001 No. 3998 and SI 2001 No. 3997, designated as drugs which may only be used for medical or scientific research and as drugs to which s 7(4) of the 1971 Act applies (para 10 above). The effect of that designation is that, whatever benefits might be perceived or suggested for any individual patients, if these particular drugs were available for medical prescription and use (other than research), such individual benefits were and are in the legislator’s view outweighed by disbenefits of strength sufficient in the national interest to require a general prohibition.”

The defence of necessity on an individual basis as advocated by this appellant, as it was by the appellants in Quayle, is in conflict with the purpose and effect of the legislative scheme. The reasoning of Mance LJ in Quayle applies with equal force to the present case. In our view Article 3 adds nothing to the extensive arguments that were dealt with by Mance LJ in Quayle.

Article 3 is of no avail to the appellant in running a defence of necessity to an offence of possession of a controlled drug under the Misuse of Drugs Act 1971. The judge was right to say that the defence of necessity should not be left to the jury and the appeal against conviction must therefore be dismissed.