A human right to take drugs?
Posted on 20th October 2015
In a recent report by the All-Party Parliamentary Group on Drug Reform, MPs and peers pushed for reform of the Government’s drugs policy, claiming that the ‘blanket prohibition’ approach has failed and that decriminalisation is the best way forward if we are to combat the problems in our society relating to drug taking.
There were a range of recommendations in the report but it was the suggestion that a personal drug user could avoid prosecution by citing their right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR) that attracted media attention.
The report stated that:
“For European countries the European Convention on Human Rights, in particular Article 8, could be invoked in support of the argument that possession or purchase or cultivation of drugs for personal use, particularly in small quantities, do not injure other people’s rights either directly or indirectly and therefore should not be criminalised.”
The reality, however, is that human rights challenges to the legislation prohibiting the import, supply, production and use of drugs have been raised before, without success.
Following prosecutions of followers of Rastafarianism for possession with intent to supply and importation of cannabis, the Court of Appeal had to consider whether the prosecutions were compatible with their freedom to manifest and observe religion under Article 9 of the ECHR (the cases of R v Taylor –  and R v Andrews  respectively). In both cases whilst it was not disputed that the usage was for religious purposes, it was determined the restrictions afforded by the law were necessary and proportionate in the interests of public safety, for the protection of public order, health or morals.
Article 8 itself was considered in the cases of R v Quayle & others , in the context of cannabis use for medical necessity. Here the defence of necessity was raised, and the Court of Appeal was invited to extend the common law defence of necessity to avoid a suggested inconsistency with Article 8, and allow the scientific evidence which could give rise to a defence of necessity before a jury. This was rejected, as to allow such a defence would have been in clear conflict with the purpose of the legislation. Also dismissed was the suggestion that the legislation itself was incompatible with Article 8.
In light of this judgment, the defendant in R v Altham , who used cannabis as pain relief, argued that where severe medical problems could amount to inhuman or degrading treatment, and where the state provided that the only way a person could avoid those symptoms was by breaking the criminal law, the state was submitting that person to inhuman or degrading treatment (contrary to Article 3 ECHR). This argument was also rejected on the grounds that the state had done nothing to subject the defendant to inhuman treatment (his injuries were caused in a vehicle accident) and therefore Article 3 was not engaged.
Given this judicial history, it is clear that there are substantial barriers to the success of any Article 8 arguments of the type suggested by the peers and MPs who make up the group. The wording of Article 8 allows interference with rights so long as the interference is considered proportionate and necessary for the protection of public safety, order, health or morals. The oft-cited comparison between the medical and social harm caused by alcohol and tobacco to that of cannabis and other prohibited substances does not in itself give rise to any legal basis for challenge. Instead it would have to be demonstrated that the criminal prosecution of a drug user is not a necessary or proportionate means of seeking to obtain the benefits to public health that prohibition of personal drug use seeks to bring.
In the context of the many failed Article 8 challenges in recent years and the Government’s outright rejection of the proposals it is a great shame that the media leapt upon the story, detracting from an important debate about drug policy.
It is perhaps unsurprising that the right wing media would take the opportunity to further discredit the Human Rights Act as a ‘villain’s’ or ‘stoner’s’ charter at a time when the act is under threat from the Conservative Government. This stance is entirely wrong since Article 8 seeks to ensure a careful balance is struck between individual rights and the protection of society from crime.
Myth-peddling around the Human Rights Act is unhelpful and takes the debate away from important arguments around the legalisation of drugs, including those around the health risks of drug addiction, protection of the public, the expense of police investigations and prosecutions and the need to focus limited resources on more serious crimes. It is these issues that need to be properly and fully debated if we are to solve any of the problems in society caused by drug use.
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