Government challenged on drugs law

Last week, Edwin Stratton, appeared in magistrates court to defend himself on a charge of cannabis cultivation. He had refused a caution on arrest.
His legal defence was put together by Casey Hardison and he was represented by Darryl Bickler in court.
He is running a brilliant and innovative defence claiming that the Government is abusing its power by unlawfully discriminating against those who are in possession of drugs that have been criminalised.

Transform do not claim to be legal experts and, rather than attempt to translate it for you, I have pasted the skeleton defence and Ed's press release below.

We want to stress that some legal experts have expressed doubts about this defence, and that it is crucial that anyone seeking to make use of it, gets the best professional legal advice they can.

Transform is delighted to see some headway being made here, (particularly with this defence) and we are keen to hear from legal experts who may be able to provide support for Ed's defence.

See also drugdiscrimination.org

and Drug Equality Alliance

The case has been adjouned until 6 November so that Ed can secure legal representation and make an application to the Divisional Court for a stay.

Skeleton Argument for Edwin Stratton


1. The defendant client objects to this indictment under s7 of the Indictment Act 1915 due to an executive abuse of power that threatens his basic human rights -and the rule of law. Cf. Archbold §1-191 (j) and 4-47 et seq.

2. Accordingly the defendant seeks either 1) to stay the indictment; 2) an adjournment of these proceedings so he can pursue the matter in the Divisional Court; or 3) For this court to decline jurisdiction and require the matter to be pursued in the Divisional Court. Cf. R. v. Central Criminal Court, ex p. Randle and Pottle, 92 Cr.App.R. 323, DC; R v Belmarsh Magistrates ex parte Watts [1999] 2 Cr.App.R. 188 at 195; Archbold § 1-192 & 4-50.

3. The abuse:

a. The defendant believes that the Misuse of Drugs Act 1971 c.38 (“the Act”) is being applied to him in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 and within the ambit of other convention rights. This denies equal protection to the defendant, alleged to be engaged in property activities with “controlled drugs”, as defined by s2(1)(a) of the Act, with respect to analogous persons engaged in the identical property activities with the dangerous or otherwise harmful drugs alcohol and tobacco.

b. The Government’s Position:

"The Government's policy is and has been to regulate drugs which are classified as illegal through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace".

c. The Government’s position admits discrimination on the grounds of legal status and property within the ambits of Article 1 of the First Protocol, “protection of property”, Article 8 respect for private life, inter alia. More, the Government’s position includes errors of law and fact.

d. Unjustifiable discrimination: The Act is interpreted and implemented unequally with respect to consumers, producers and traders of (a) harmful drugs used by minorities, the drugs currently controlled under the Act, and (b) equally harmful drugs used by the majority, alcohol and tobacco, arbitrarily excluded from the Act. The Act therefore unjustifiably discriminates between those in the same position, those who consume or trade equally harmful drugs. Cf. A & Others v SSHD [2004] UK HL 56 at 46 et seq; Pretty v UK [2002] 35 EHRR 1 at para 77: “Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law.”

e. Failure to justifiably discriminate: regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use, production and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import. The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use, production or trade: (a) use or trade unreasonably harmful to the consumer or trader alone, ‘voluntary risks’, and (b) use or trade unreasonably harmful to others, ‘involuntary risks’. Voluntary risks do not infringe human rights while involuntary risks do. The Act therefore fails to justifiably discriminate between those in different situations. Cf. Thlimmenos v Greece [2000] 31 EHRR 411 para 44: “The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

4. As a result of this abuse by the executive a fair trial is not possible. The Defendant’s remedy lies with the Divisional Court.

CPS Guidance – Abuse of Process - Misuse of Process - f. Unconscionable behaviour by the executive
This category of the doctrine of abuse is more exceptional than those described above. It arises from the duty of the High Court (first articulated in the case of Bennett v Horseferry Magistrates Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).

Applications for a stay based on this ground cannot be determined in any tribunal below the High Court because they involve the judiciary exercising a supervisory function over the actions of the executive (Bennett v Horseferry Road Magistrates Court, per Lord Griffiths at 152 H-J). Where the defence wishes to make such an application at the beginning or as a preliminary to trial, the proper procedure is for the instant proceedings to be adjourned and for the defence to commence proceedings in the High Court for a declaration that continuing the prosecution would amount to an abuse of the process.

In the US Supreme Court (Railway Express Agency Inc v New York [1949], para 112), Justice Jackson explained why the courts have a duty to prevent the abuse of political power by upholding the right to equality before the law:

“There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”


9th October 2008 PRESS RELEASE

Government challenged on drugs law

Edwin Stratton, 43, of Leyton, London, is charged with production of cannabis under the Misuse of Drugs Act 1971 (“The Act”). He has today given notice of his intention to challenge the legitimacy of this prosecution in the High Court as an abuse of process. This assertion is evidenced by the bias and discrimination inherent in the policy that equally harmful drugs and those exercising property rights in such drugs should be treated differently in law. The defence claims a majoritarian abuse of power by the executive in the administration of drugs legislation. The rights afforded under the Human Rights Act 1998 guarantee freedom from arbitrary discrimination: this claim is grounded in the unequal protection afforded to drug property rights between ‘licit’ and ‘illicit’ drugs. This challenge seeks to hold the government and the Advisory Council on the Misuse of Drugs (“ACMD”) to account for an alleged irrational administration of the law which has led to countless thousands of lives lost and destroyed in the so-called ‘War on Drugs’.


1. Edwin is being prosecuted for his medical use of cannabis which he attempted to grow in the privacy of his home. He suffers from a hyper-sensitive form of coeliac disease which leaves him with constant pain and nausea for which cannabis is uniquely effective in his experience, and without the dreadful side-effects he experiences with prescription drugs.

2. Due to the nature of this legal challenge, which squarely puts the government’s application of the law in the spotlight - this case must, according to law, be heard in the High Court.

3. Edwin says: “Drugs legislation intends to protect us from harmful drugs. I absolutely agree with that aim, but the present policy is a disaster from a harm-reduction perspective. The legal classification of drugs is entirely inconsistent with the objective of creating a criminal tariff of punishments for drugs offences according to their relative harmfulness or potential for harm”.
Support for this position has come from organisations such as Transform Drug Policy Foundation, Release, the Beckley Foundation, The Parliamentary Select Committee on Science and Technology and the ACMD’s own prevention working group in their 2006 report ‘Pathways to Problems’. The incoming chair of the ACMD co-authored a March 2007 report in the Lancet, which presented a hierarchy of drug harm as determined by experts, elucidating the arbitrariness of the current classification of drugs under the Act.

4. The discriminatory application of law is starkly obvious when we factor in the harms caused by alcohol and tobacco, which together kill 150,000 people in the UK every year. Despite over 800,000 hospital admissions last year due to alcohol abuse, cannabis users cause far less harm to themselves and others and yet are compelled not only to risk arrest, prosecution and imprisonment, but also must endure the risk of dealing with criminal elements, risk their health due to contaminants, and risk exposure to products of unknown strength – all of which Edwin sought to avoid by growing it himself. Despite awareness campaigns, the legal status of alcohol and tobacco falsely signifies that these drugs are safer than many controlled drugs; this results in a lack of proper legal protection for alcohol and tobacco users in comparison to the stringent controls over equally harmful controlled drugs. Edwin says that “my advisers consider that the government does not have the discretion in law to exclude dangerous drugs from the remit of the enforcement legislation on the arbitrary basis of ‘cultural and historical precedents’. Government insists that the responsible use of alcohol and tobacco can be maintained without subjecting either to controls under the Act, whereas this possibility is denied to users of other equally harmful drugs, these double standards perpetuate detrimental consequences to users of all kinds of drugs”.

see HM Government official response to the Cabinet Office Better Regulation Executive (September 27th 2007).

5. Edwin is a part of a campaigning network known as the nascent DEA (Drug Equality Alliance). Individuals can register their support by visiting www.drugequality.org - the group is seeking to achieve one million site hits this year to illuminate support for a much needed transformation of the impasse causing so much harm to people who use drugs of all kinds.

Contact: edwinstratton1@googlemail.com