Here's what Liberty, the
human rights organisation, has to say about drug law
reform:
Letter to the
Editor, The Times - Reforming Drug laws John Wadham 24 May 2002
I very much support Lord Bingham's call for the
legalisation of cannabis use (Times 24th May) and the
Home Affairs Select Committee's proposals to
liberalise the drug laws. But I would go further: the
Misuse of Drugs Act 1971 should be repealed.
Criminalisation has failed; civil regulation is the
way forward.
Branding all drug users criminals increases
alienation, particularly among young people. It
undermines public support for the criminal justice
system; increases the level of crimes such as
robbery, prostitution and burglary to fund expensive
addictions; threatens privacy; has fed the growth of
violent and organised crime; and labels many honest
people as criminal.
Successive governments, clinging to this failed
approach, have resorted to increasingly authoritarian
measures. We have seen more use of intrusive policing
(e.g. surveillance, telephone interception, informers);
and increasingly draconian sentencing (39% of women
prisoners are serving sentences for drug offences).
Now the Proceeds of Crime Bill will allow the state,
via the civil courts to confiscate the 'drug-related'
assets of people not even convicted of drug offences.
The use of repressive laws to punish individual
consumption of harmful substances is wholly
disproportionate. Society accepts that individuals
can choose to take part in dangerous activities, from
drinking and smoking to extreme sports; the same
should be true here.
The Government should decriminalise possession, use
and supply of all drugs. A system of civil regulation
and control would carefully, effectively regulate
access to the lawful supply of drugs. Supply to
minors, for example, should remain a criminal offence
- but overall, people should be allowed to make their
own choices.
Civil regulation and education must offer a better
approach to the prevention of drug harm in a free
society than prohibition.
John Wadham
Director Liberty 21 Tabard Street London SE1 4LA
Since the Human Rights Act
became law in the UK we have had the protection of
rights guaranteed under the UN Universal Declaration
of Human Rights (UNDHR) and the European Convention
on Human Rights and Fundamental Freedoms (ECHR).
The major areas of conflict
between Human Rights and the Misuse of Drugs Act may
lie with:
1: Our Right To Privacy - Article 8 of the
ECHR / Article 12 of UNDHR
2: Our Right to Freedom of Religion and Belief -
Article 9 of ECHR / Article 18 of UNDHR.
The European Convention
itself makes it clear that governments and
authorities would be guilty of a crime if they
interfered without justification with a person's
human rights. Article17 of the European Convention on
Human Rights says "Nothing in this Convention
may be interpreted as implying for any State, Group
or Person any right to engage in any activity or
perform any act aimed at the destruction of any of
the rights and freedoms set forth herein or at their
limitation to a greater extent than is provided for
in this Convention."
Right to Privacy -
Article 8:
"Everyone has the
right to respect for his private and family life, his
home and his correspondence."
Once again, it says nothing
about what one does in private having to be with the
approval of any authority, subject to the same
criteria as Article 9.
"There shall be no
interference by a public authority with the exercise
of this right except such as in accordance with the
law and is necessary in a democratic society in the
interests of national security, public safety of 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."
That is: provided that one
does not threaten or harm national security or public
safety, health, order, morals or the Rights of
others, then the authorities have no lawful reason to
intravene. In this case threats to national security
or law-breaking may also empower the authorities to
react. Once again, there is no evidence to suggest
that the use of cannabis or in fact its cultivation
at home, poses any threat to anyone.
Neither the Police nor other
authorities are entitled to "interfere"
with these rights unless their intervention is
properly justified under the Convention. The
interference must be both lawful and "necessary
in a democratic society" for the achievement of
specified social ends.
The UK government claims
that cannabis is a dangerous drug and therefore a
threat to public health but it must be up to them to
prove so in order to justify their actions in
entering a persons home to search for cannabis.
Freedom of Religion
and Belief:
Article 9 (1) of
the European Convention on Human Rights:
"Everyone has the
right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or
belief and freedom, either alone or in community with
others and in public or private, to manifest his
religion or belief in worship, teaching, practice and
observance."
Article 9 grants us freedom
to choose or change our religion or belief: This says
nothing about the religion or belief having to be one
that is accepted by any government or court. The only
limitations put on the holding or practice of a
religion or belief, alone or in company with others,
are specifically included in the second part of
Article 9. The authorities can only lawfully
interfere in the interests of law AND (a very
important word) in order to protect public safety,
health, order, morale or the Rights of others.
Article 9 (2) of the
European Convention on Human Rights:
"Freedom to manifest
one's religion or beliefs shall be subject only to
such limitations as are prescribed by law and are
necessary in a democratic society in the interests of
public safety, for the protection of public order,
health or morale, or for the protection of the rights
and freedoms of others."
Clearly the practice of, for
example, cannibalism, would infringe upon the rights
of others in the very least, and therefore
governments have the lawful power to prevent that act
even though people still have the Right to believe it.
The use of cannabis, alone or with others, however,
cannot be said to be any threat to public safety,
health, order, morale or the Rights of others. At
least there is no medico-scientific evidence to
suggest so particularly as the levels of danger have
already been set by the legality of far more
dangerous substances such as alcohol, tobacco and
solvents. The British Government may disagree, but in
defending their Misuse of Drugs Act the onus must be
upon them to justify what would be the crime of
contravening Article 9. However, many people in the
legal profession have stressed that it may be very
difficult to peruade most judges of the legitimacy of
a claim that the use of cannabis was a part of a
person's private belief system. Yet other people may
say that is simply another form of tyranny as Article
9 grants no such power of decision to any authority.
In 1981, the countries of the world affirmed their
intention to rid the world of religious intolerance
when they endorsed the Declaration on the
Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief.
We have yet to see how long
it takes some of them to recognise that the belief in
the beneficial use of cannabis is a valid belief.
Newspapers:
Francis Wilkinson,
Chief Constable of Gwent from 1997 to 1999, The
Times, 20/2/01:
"When the Human Rights Act had been passed by
Parliament but had still to take effect, the Lord
Advocate in Scotland expressed the hope that the
English and Scottish courts would never have to use
the power in the Act to declare a law incompatible
with the European Convention on Human Rights.
In similar vein, the Lord Chancellor, Lord Irvine of
Lairg, talks of the Act as "a strong magnetic
field" across English law, emphasising its
interpretative rather than its declaratory effect. It
is natural enough that the Government's law officers
should have such hopes but perhaps more surprisingly
that they are shared by eminent human rights lawyers.
Lord Lester of Herne Hill, QC, has said in this
supplement that the Human Rights Act "will have
to be interpreted so as to weave Convention rights
into our law, rather than tearing gaping holes in it"
if it is to succeed.
Elsewhere, he has written of "domesticating"
the Convention rights.
The Human Rights Act has been with us only since
October for its main provisions but experience of it
so far supports these aspirations. There have been no
declarations of incompatibility. The main area of
attention has been legal procedure under Article 6,
the right to a fair trial. The courts have been
adjusting their own procedures rather than requiring
ministers to review the law of the land. Change seems
to have come mainly for lawyers.
So is Section 4 of the Act, which allows courts to
issue declarations of incompatibility, a dead letter?
Is English law already in accordance with the
Convention on Human Rights so that no major change
will be needed and procedural tinkering will be its
whole effect? In relation to one important area of
law I believe the answer is "no": the
prohibitory laws on drugs are contrary to at least
one Article of the Convention and will have to be
changed.
Article 8 of the Convention says "everyone has
the right to respect for his private and family life,
his home and his correspondence". It goes on to
provide a series of circumstances in which a public
authority's interference with the right is permitted
- "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
wellbeing of the country, for the prevention of
disorder or crime, for the protection of health or
morals, or for the protection of the rights or
freedoms of others".
If the Government is challenged under Article 8 it
can use any or all of these justifications, but it is
doubtful whether any of them will do the job. Many of
them are not relevant or, like the prevention of
crime and the economic wellbeing of the country, tend
rather to favour legalisation. The justification for
interference with the right that is likely to be most
relied upon by a government is that relating to the
protection of health. The point is that smoking
cannabis is bad for you, as smoking tobacco is and as
drinking alcohol in more than small quantities is,
but that its health effects on users are rather less
serious than those of these two legal drugs. The
Lancet has concluded from an analysis of hundreds of
publications on cannabis "that on the medical
evidence available, moderate indulgence in cannabis
has little effect on health, and that decisions to
ban or to legalise cannabis should be based on other
considerations".
Cannabis is remarkably safe: research on rats has
found that it would need 10,000 times the daily
intake of a moderate to heavy user before someone
died from being poisoned by it. Paracetamol and
aspirin are much more dangerous. And when other
considerations than health are taken into account,
the prohibition of cannabis is disproportionate to
its effects.
Cannabis has been demonised by being placed on the
wrong side of the law for reasons that are purely
historical. It did not happen to be in common use in
the developed world when the international
conventions on drugs were first signed. Now it is,
and the law is out of date.
It will not be long before Article 8 is used to
challenge the cannabis provisions of the 1971 Misuse
of Drugs Act. Judges can be expected to be wary of
making a declaration of incompatibility that would be
likely to lead to such major social change. The
European Court of Human Rights gives a generous
margin of appreciation where a decision concerns
"complex, scientific, legal, moral and social
issues, in respect of which there is no generally
shared approach among the contracting states".
Whether they follow European principle or English
precedent, English courts are likely to take a
similar line. For a time courts will avoid, in Lord
Lester's phrase, tearing a gaping hole in our law.
Declarations are a new power which they will use with
caution. But Article 8 offers such scant grounds for
a government to continue cannabis prohibition that
the case for legalisation will in time be successful.
The question is whether the turning point for
legalisation will be in Parliament or in the courts.
http://www.thetimes.co.uk/article/0,,76-87031,00.html
Regina v Taylor (Paul
Simon), The Times, 15 Nov 2001:
Before Lord Justice Rose, Mr Justice Davis and Sir
Richard Tucker. Judgment October 23, 2001
"The prohibition in
the Misuse of Drugs Act 1971 in relation to the
supply of cannabis did not amount to an interference
with a defendant's rights under article 9.1 of the
European Convention on Human Rights to manifest his
religion in worship, teaching, practice and
observance, in view of the provisions of article 9.2.
The Court of Appeal, Criminal Division, so held in
refusing an application by Paul Simon Taylor for
leave to appeal against conviction of possession of
cannabis on his plea of guilty following a ruling by
Judge Stone at Inner London Crown Court that in the
light of the Crown's concession that Rastafarianism
was a religion and that the drugs were to be used for
an act of worship, article 9 was engaged but that the
article 9.1 rights were qualified by article 9.2.
Mr Owen Davies, QC and Mr Ben Cooper, assigned by the
Registrar of Criminal Appeals, for the defendant; Mr
Christopher Hehir and Mr James Lofthouse for the
Crown.
LORD JUSTICE ROSE said that the judge was properly
entitled to rely upon the inferences to be drawn from
the United Kingdom's subscription to the Single
Convention on Narcotic Drugs 1961 and the United
Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances 1988, that
an unqualified ban on possession of cannabis with
intent to supply was necessary to combat the public
health and safety dangers of drugs.
He was also, in the exercise of his discretion, fully
entitled to reach the conclusion, which he did, that
no stay was appropriate in relation to the
prosecution of the defendant and that questions of
proportionality and necessity were not proper
questions for consideration by a jury.
Their Lordships accepted the Crown's submission that
a distinction had to be drawn between legislation
which prohibited conduct because it related to or was
motivated by religious belief, and legislation which
was of general application but prohibited, for other
reasons: conduct which happened to be
encouraged or required by religious belief."
In the UK in July 2001,
Jerry Ham's human rights defence against private
possession of cannabis was rejected by a Crown Court
Judge in London. This was reported in The Guardian.
This will mean that an
appeal will be heard first before the royal Courts of
Justice and then the House of Lords. If they fail,
then the case may eventually be taken to the European
Court of Human Rights in Strasbourg.
Declaration
on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief
Proclaimed by
General Assembly resolution 36/55 of 25 November 1981
The General Assembly,
Considering that one of
the basic principles of the Charter of the United
Nations is that of the dignity and equality
inherent in all human beings, and that all Member
States have pledged themselves to take joint and
separate action in co-operation with the
Organization to promote and encourage universal
respect for and observance of human rights and
fundamental freedoms for all, without distinction
as to race, sex, language or religion,
Considering that the
Universal Declaration of Human Rights and the
International Covenants on Human Rights proclaim
the principles of nondiscrimination and equality
before the law and the right to freedom of
thought, conscience, religion and belief,
Considering that the
disregard and infringement of human rights and
fundamental freedoms, in particular of the right
to freedom of thought, conscience, religion or
whatever belief, have brought, directly or
indirectly, wars and great suffering to mankind,
especially where they serve as a means of foreign
interference in the internal affairs of other
States and amount to kindling hatred between
peoples and nations,
Considering that
religion or belief, for anyone who professes
either, is one of the fundamental elements in his
conception of life and that freedom of religion
or belief should be fully respected and
guaranteed,
Considering that it is
essential to promote understanding, tolerance and
respect in matters relating to freedom of
religion and belief and to ensure that the use of
religion or belief for ends inconsistent with the
Charter of the United Nations, other relevant
instruments of the United Nations and the
purposes and principles of the present
Declaration is inadmissible,
Convinced that freedom
of religion and belief should also contribute to
the attainment of the goals of world peace,
social justice and friendship among peoples and
to the elimination of ideologies or practices of
colonialism and racial discrimination,
Noting with satisfaction
the adoption of several, and the coming into
force of some, conventions, under the aegis of
the United Nations and of the specialized
agencies, for the elimination of various forms of
discrimination,
Concerned by
manifestations of intolerance and by the
existence of discrimination in matters of
religion or belief still in evidence in some
areas of the world,
Resolved to adopt all
necessary measures for the speedy elimination of
such intolerance in all its forms and
manifestations and to prevent and combat
discrimination on the ground of religion or
belief,
Proclaims this
Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on
Religion or Belief:
Article 1
1. Everyone shall have
the right to freedom of thought, conscience and
religion. This right shall include freedom to
have a religion or whatever belief of his choice,
and freedom, either individually or in community
with others and in public or private, to manifest
his religion or belief in worship, observance,
practice and teaching.
2. No one shall be
subject to coercion which would impair his
freedom to have a religion or belief of his
choice.
3. Freedom to manifest
one's religion or belief may be subject only to
such limitations as are prescribed by law and are
necessary to protect public safety, order, health
or morals or the fundamental rights and freedoms
of others.
Article 2
1. No one shall be
subject to discrimination by any State,
institution, group of persons, or person on the
grounds of religion or other belief.
2. For the purposes of
the present Declaration, the expression "intolerance
and discrimination based on religion or belief"
means any distinction, exclusion, restriction or
preference based on religion or belief and having
as its purpose or as its effect nullification or
impairment of the recognition, enjoyment or
exercise of human rights and fundamental freedoms
on an equal basis.
Article 3
Discrimination between
human being on the grounds of religion or belief
constitutes an affront to human dignity and a
disavowal of the principles of the Charter of the
United Nations, and shall be condemned as a
violation of the human rights and fundamental
freedoms proclaimed in the Universal Declaration
of Human Rights and enunciated in detail in the
International Covenants on Human Rights, and as
an obstacle to friendly and peaceful relations
between nations.
Article 4
1. All States shall take
effective measures to prevent and eliminate
discrimination on the grounds of religion or
belief in the recognition, exercise and enjoyment
of human rights and fundamental freedoms in all
fields of civil, economic, political, social and
cultural life.
2. All States shall make
all efforts to enact or rescind legislation where
necessary to prohibit any such discrimination,
and to take all appropriate measures to combat
intolerance on the grounds of religion or other
beliefs in this matter.
Article 5
1. The parents or, as
the case may be, the legal guardians of the child
have the right to organize the life within the
family in accordance with their religion or
belief and bearing in mind the moral education in
which they believe the child should be brought up.
2. Every child shall
enjoy the right to have access to education in
the matter of religion or belief in accordance
with the wishes of his parents or, as the case
may be, legal guardians, and shall not be
compelled to receive teaching on religion or
belief against the wishes of his parents or legal
guardians, the best interests of the child being
the guiding principle.
3. The child shall be
protected from any form of discrimination on the
ground of religion or belief. He shall be brought
up in a spirit of understanding, tolerance,
friendship among peoples, peace and universal
brotherhood, respect for freedom of religion or
belief of others, and in full consciousness that
his energy and talents should be devoted to the
service of his fellow men.
4. In the case of a
child who is not under the care either of his
parents or of legal guardians, due account shall
be taken of their expressed wishes or of any
other proof of their wishes in the matter of
religion or belief, the best interests of the
child being the guiding principle. 5. Practices
of a religion or belief in which a child is
brought up must not be injurious to his physical
or mental health or to his full development,
taking into account article 1, paragraph 3, of
the present Declaration.
Article 6
In accordance with
article I of the present Declaration, and subject
to the provisions of article 1, paragraph 3, the
right to freedom of thought, conscience, religion
or belief shall include, inter alia, the
following freedoms:
(a) To worship
or assemble in connection with a religion
or belief, and to establish and maintain
places for these purposes;
(b) To establish
and maintain appropriate charitable or
humanitarian institutions;
(c) To make,
acquire and use to an adequate extent the
necessary articles and materials related
to the rites or customs of a religion or
belief;
(d) To write,
issue and disseminate relevant
publications in these areas;
(e) To teach a
religion or belief in places suitable for
these purposes;
(f) To solicit
and receive voluntary financial and other
contributions from individuals and
institutions;
(g) To train,
appoint, elect or designate by succession
appropriate leaders called for by the
requirements and standards of any
religion or belief;
(h) To observe
days of rest and to celebrate holidays
and ceremonies in accordance with the
precepts of one's religion or belief;
(i) To establish
and maintain communications with
individuals and communities in matters of
religion and belief at the national and
international levels.
Article 7
The rights and freedoms
set forth in the present Declaration shall be
accorded in national legislation in such a manner
that everyone shall be able to avail himself of
such rights and freedoms in practice.
Article 8
Nothing in the present
Declaration shall be construed as restricting or
derogating from any right defined in the
Universal Declaration of Human Rights and the
International Covenants on Human Rights.
© Copyright 1997
Office of the United Nations High Commissioner
for Human Rights
Geneva, Switzerland
