Taken
from "Cannabis: Challenging the Criminal Justice System" 2003, written
by Roger Warren Evans, retired Human Rights barrister
DRUGS PROHIBITION AND HUMAN RIGHTS
The hopes of reformers were high that the Human Rights Act 1998 would strengthen the drive for drugs law reform. The incorporation into English law of the rights of privacy in Article 8 of the European Convention of Human Rights offered to defendants the real prospect of a defence against drug-possession and personal consumption charges. Prosecution for personal consumption constituted an "interference" with the defendants "private life", the reformers reasoned, which could not be justified under the specific terms of the Convention. Those arguments remain strong, and persuasive.
So persuasive indeed, that the UK prosecuting authorities now avoid simple "possession" charges altogether. They have clearly come to the same conclusion, about Article 8. Attractive "deals" are now commonly offered to those charged with "minor" personal possession offences. All the indications are that full criminal proceedings are now being limited to the "aggravated" charges - possession of large quantities of drugs (in excess of personal consumption requirements), dealing or "trafficking", supply to minors, growing or manufacturing prohibited substances, and permitting the use of premises for drugs purposes. This self-imposed restriction itself constitutes a victory for the human rights cause.
But the victory is of limited scope. For the Human Rights Act (Article 8) does not offer any defence to these "aggravated" charges.
Article 8 continues, however, to exercise its influence. There is a powerful Article 8 case to be made against the appalling Regulations which classify drug consumption (including cannabis) as a "relevant disability" justifying the withdrawal of a driving licence. Mandatory drug testing poses a range of different issues, according to its administrative context. Testing by private employers remains a matter of personal contract, falling outside the Human Rights Act. For public employees, its legality will turn on its relevance to the functions performed by the employee. And within the context of judicial proceedings, its legality will turn on its precise statutory context: there is no neat Yes/No test. But we should continue to monitor the gradual creep of drugs testing, and remain vigilant to identify its abuse.
The Human Rights Act has played a leavening role in that wider sea-change of public and political opinion. Nine MPs and one British MEP[2003] are now publicly committed to the legalisation of all drugs.
It is true that the prosecuting authorities, by adopting a sophisticated enforcement strategy, have avoided any high-level challenge in the Court of Appeal, where it really matters. But nobody should lose faith with Article Eight. This great human rights declaration has already softened the style of public law enforcement in the UK, and it retains huge potential to drive back the boundaries of abuse by public authorities.
And it remains true that, while the statutory drugs-prohibition regime remains in place, the judicial process will remain a cat-and-mouse game, with reformers constantly harassing the Authorities. It is only the comprehensive legalisation of supply and consumption that will bring to individuals the full recognition of their personal freedom and the sovereignty of their personal judgment in the conduct of their own lives. That is a worthy goal, and Article 8 will continue to offer support to those seeking to achieve it.
Written by Roger Warren Evans Barrister at Law Secretariat Angel Declaration February 2003
http://www.ccguide.org/lca/challengeintro.php
DRUGS PROHIBITION AND HUMAN RIGHTS
The hopes of reformers were high that the Human Rights Act 1998 would strengthen the drive for drugs law reform. The incorporation into English law of the rights of privacy in Article 8 of the European Convention of Human Rights offered to defendants the real prospect of a defence against drug-possession and personal consumption charges. Prosecution for personal consumption constituted an "interference" with the defendants "private life", the reformers reasoned, which could not be justified under the specific terms of the Convention. Those arguments remain strong, and persuasive.
So persuasive indeed, that the UK prosecuting authorities now avoid simple "possession" charges altogether. They have clearly come to the same conclusion, about Article 8. Attractive "deals" are now commonly offered to those charged with "minor" personal possession offences. All the indications are that full criminal proceedings are now being limited to the "aggravated" charges - possession of large quantities of drugs (in excess of personal consumption requirements), dealing or "trafficking", supply to minors, growing or manufacturing prohibited substances, and permitting the use of premises for drugs purposes. This self-imposed restriction itself constitutes a victory for the human rights cause.
But the victory is of limited scope. For the Human Rights Act (Article 8) does not offer any defence to these "aggravated" charges.
Article 8 continues, however, to exercise its influence. There is a powerful Article 8 case to be made against the appalling Regulations which classify drug consumption (including cannabis) as a "relevant disability" justifying the withdrawal of a driving licence. Mandatory drug testing poses a range of different issues, according to its administrative context. Testing by private employers remains a matter of personal contract, falling outside the Human Rights Act. For public employees, its legality will turn on its relevance to the functions performed by the employee. And within the context of judicial proceedings, its legality will turn on its precise statutory context: there is no neat Yes/No test. But we should continue to monitor the gradual creep of drugs testing, and remain vigilant to identify its abuse.
The Human Rights Act has played a leavening role in that wider sea-change of public and political opinion. Nine MPs and one British MEP[2003] are now publicly committed to the legalisation of all drugs.
It is true that the prosecuting authorities, by adopting a sophisticated enforcement strategy, have avoided any high-level challenge in the Court of Appeal, where it really matters. But nobody should lose faith with Article Eight. This great human rights declaration has already softened the style of public law enforcement in the UK, and it retains huge potential to drive back the boundaries of abuse by public authorities.
And it remains true that, while the statutory drugs-prohibition regime remains in place, the judicial process will remain a cat-and-mouse game, with reformers constantly harassing the Authorities. It is only the comprehensive legalisation of supply and consumption that will bring to individuals the full recognition of their personal freedom and the sovereignty of their personal judgment in the conduct of their own lives. That is a worthy goal, and Article 8 will continue to offer support to those seeking to achieve it.
Written by Roger Warren Evans Barrister at Law Secretariat Angel Declaration February 2003
http://www.ccguide.org/lca/challengeintro.php
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