Necessity: Supply of Cannabis for Medical Purpose
| DOI | 10.1350/jcla.2005.69.6.464 |
| Author | Alan Reed |
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| Subject Matter | Court of Appeal |
Necessity: Supply of Cannabis for Medical Purpose
R v Quayle and Others [2005] EWCA Crim 1415, The Times
(22 June 2005)
The appellant and others were convicted of offences under the Misuse of
Drugs Act 1971. The case focused on cultivation of cannabis for the
arguably beneficial purpose of amelioration of pain and suffering. The
Court of Appeal had to consider whether the defence was available to a
defendant in respect of an offence of possession of cannabis or cannabis
resin with intent to supply if his case was that he was intending to supply
it to another for the purpose of alleviating pain arising from a pre-
existing illness such as multiple sclerosis. The appeal arose from the
convictions and in answering the Attorney-General’s reference on a
question of law. The appeals and reference all raised concerns about the
availability and extent of any defence of medical necessity in respect of
the commission of what would otherwise constitute offences against
legislation governing the cultivation, production, importation and pos-
session of cannabis.
HELD, DISMISSING THE APPEALS, a medical necessity defence was not
available in this situation. After extensively reviewing the legislative
framework, the European Convention on Human Rights and the de-
tailed requirements of any defence of necessity, the Court of Appeal
determined that none of the appellants were able to rely at trial on any
facts which could at common law give him or her any defence of
necessity.
COMMENTARY
This decision forms part of a series of cases involving medical necessity.
This body of jurisprudence is so inconsistent and policy themed that it
seems to have come about by judicial divining rod. It needs to be
reiterated that in cases of necessity the defendant does not rely on any
allegation that the circumstances placed an irresistible pressure on him,
but rather claims that his conduct, although falling within the definition
of an offence, was not unlawful because it was, in the circumstances,
justified. Beyond the very extreme circumstances in the infamous case
of R v Dudley and Stephens (1884) 14 QBD 273, where necessity was no
defence to murder in killing a cabin boy whilst cast adrift at sea, has
‘necessity’ been recognised as providing a defence in other circum-
stances? The answer in the present case is that whilst it has not been
expressly acknowledged, a series of decisions have implicitly affirmed
the existence of the doctrine in prevailing circumstances, albeit very
strictly confined in ambit. Three medical cases provide examples of its
operation in connection with the very difficult decisions that have to be
464
Necessity: Supply of Cannabis for Medical Purpose
taken in relation to medical treatment. The effect has been to character-
ise the individual actor’s conduct as ‘lawful’, legitimate responses to
dilemmatic situations, and thus not criminal. For example, in R v Bourne
[1938] 3 All ER 615, a charge was brought against a surgeon of
unlawfully using an instrument with intent to procure a miscarriage,
contrary to s. 58 of the Offences against the Person Act 1861. D had
performed an...
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