Challenges to UK drug laws and drug policies under 1998 Human Rights Act (based on the European Convention on Human Rights & Fundamental Freedoms) Below is selection of five relevant legal challenges to British drug laws and policies under the Human Rights Act in the European Court of Human Rights. There have been many others, and many more are underway. McIntosh, 2000 Article 6 guarantees defendants such legal rights as being given a fair public trial, being informed of charges against them, being give adequate time and facilities to prepare and present a defence, being able to defend themselves in person or through legal assistance, being allowed to call and examine witnesses – and being presumed innocent until proved guilty. In October 2000, Appeal judges at the Criminal Court of Appeal in Edinburgh ruled that the Proceeds of Crime (Scotland) Act 1995 was unlawful, because there it entailed a presumption of guilt which required convicts to prove that their money was made lawfully or else have it confiscated. This was based on the case of Robert McIntosh, from Greenock in Scotland , who was imprisoned for four years in June 1999 for supplying heroin. His lawyers challenged a confiscation order made against him under the Proceeds of Crime (Scotland) Act, arguing that to assume without any evidence that property or assets were the proceeds of drug trafficking – unless the defendant can prove otherwise - was ‘totally inconsistent with the presumption of innocence' in criminal law. Just over a year later, a panel of three judges at the Court of Appeal in Edinburgh voted 2 to 1 that the confiscation order violated Article 6 of the European Convention on Human Rights, as it required convicted criminals to prove that they had made their money lawfully, which violated the presumption of innocence. The Crown Office appealed to the House of Lords, who reversed the decision of the Scottish Appeal Court , and upheld the confiscation order against McIntosh – on the grounds that confiscation orders against drug traffickers were civil rather than criminal. Brown, 2001 Article 9 details the right to freedom of thought, conscience and religion, which includes the individual's right “to manifest his/her religion or belief, in worship, teaching, practice and observance”. Rasta Brown, a 37-year old Rastafarian, had been trying to raise some money to clear a loan and support the mothers of his children when he asked an undercover policeman if he wanted some "weed". Brown was promptly arrested, searched and found to be carrying seven bags containing 20g of the drug. Later, another 0.5g was recovered later in his shorts, and a further 128g was found when officers visited his home in Stockwell, south London. Brown pleaded guilty to possession of cannabis with intent to supply in August 2000, and was due to be sentenced when he changed his mind and applied to Inner London Magistrates Court to have his case reconsidered. Brown's counsel, Rufus D'Cruz, told the court that although smoking cannabis was not mentioned in the 16 fundamental tenets of Rastafarianism, it was considered “an aid to worship, medicine, and as a source of income”. The religion's acceptance of cannabis as a source of income was the basis of Brown's claim that he was not guilty of possession with intent to supply under Article 9 of the Human Rights Act. When the court reconvened in January 2001, Judge Charles Gibson ruled that the not guilty plea was unacceptable, and sentenced Brown to 150 hours of community service. Ham, 2001 Article 8 states that ‘everyone has the right to respect for his private and family life, his home and his correspondence'. This permits the individual to attack any infringement of their privacy by a public authority or body, except when it is “in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. As with all Articles, Article 8 is governed by the provision that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.In July 2001, Liberty (UK civil rights pressure group) supported the defence of Jerry Ham, who pleaded not guilty to possession of less than two grams of cannabis in June 2000 at a jury trial at Southwark Crown Court. His QC argued that possession of a small amount of cannabis was a trivial offence and should not be a crime, and that prosecution breaches Article 8 of the Human Rights Act - the right to respect for a private life, family life and home. The jury was asked to consider whether criminalisation, with all its negative consequences, is a proportionate response to the threat posed by cannabis and its users to society. However, the judge ruled that courts can only stay trials in circumstances where the defendant could not receive a fair trial or where it was integral to the public interest that the trial should not take place. The jury took two and a half hours to reach a 10-2 majority verdict of guilty. The judge sentenced Ham to two years conditional discharge, noting ‘the immensely powerful mitigating circumstances'. McGlinchey, 2003 Article 3 prohibits torture, and inhuman and degrading treatment and punishment. The parents of Judith McGlinchey applied to the European Court of Human Rights on the grounds that the government violated Article 3 when they refused their daughter treatment for heroin addiction in prison (where she was serving a 4-month sentence for theft), which led to her death. The court disagreed that the prison withheld Lofexidine as a punishment, regarding it as medically justified by a drop in her blood pressure; but they agreed that her withdrawal symptoms resulted from the prison's failure “to provide the requisite medical care”, and that they were a contributory factor in her death. They concluded that “the evidence indicates … that by the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated. This was the result of a week of largely uncontrolled vomiting symptoms and an inability to eat or hold down fluids. This situation, in addition to causing Judith McGlinchey distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse”. In short, the court accepted that Article 3 had been violated by the prison's failure to provide the required medical care – that is, that McGlinchy died because of their inhuman and degrading treatment and punishment of her. Wainwright, 2006 Articles 3 and 8, already described above, were the articles violated by a prison when they strip searched a woman and her mentally disabled son during her first visit to the prison to see her other son. The prison claimed the strip searches were justified and legitimate because the incarcerated son was known to be selling drugs in the prison, and because they were trying to tackle a serious drug problem in the prison. The court accepted the prison's arguments, but described the prison's strip-searching procedures as “highly invasive and potentially debasing” for ‘innocent outsiders' such as prison visitors, and concluded that it was “not satisfied that the searches were proportionate to that legitimate aim in the manner in which they were carried out”. The court added that “it behoves the prison authorities to comply strictly with those safeguards and by rigorous precautions protect the dignity of those being searched from being assailed any further than is necessary. They did not do so in this case”. The court concluded that although the prison had not violated Article 3 (prohibition on inhuman and degrading treatment and punishment), it had violated Article 8 (the right to respect for private and family life). Russell Newcombe, Senior Researcher Lifeline, Manchester , England ; May 2007 |