The legislation regarding cannabis is constantly attracting headlines worldwide as more countries alter their stance and relax the laws relating to the substance. In the UK cannabis is still considered a Class B controlled drug after being re-categorised from Class C in 2008 and it remains an offence in the UK to be in possession of, to supply or to cultivate the drug. However, in November 2018 an amendment was made to the 2001 Misuse of Drugs Regulations to update the legislation in relation to medicinal cannabis. Doctors are now allowed to prescribe cannabis derived medicine for medicinal reasons such as to alleviate side effects from those suffering from epilepsy, chemotherapy and multiple sclerosis (MS).

The legislation relating to medicinal cannabis imposes strict conditions and an individual must obtain the cannabis by way of prescription and not via street dealing. However, despite the change in law, it appears that prescriptions are few and far between and even after gaining a prescription legitimate access to the drug remains extremely difficult. As a result many who may be entitled to or already have a prescription are still unable to access the drug legitimately and have no choice but to turn to the illicit market and face the risk of prosecution. However, a case heard in Carlisle Crown Court this week could be interpreted to be an indication that the Crown Prosecution Service (CPS) will not deem it in the public interest to prosecute individuals for the substantive drug offences where it can be evidenced that there is a medical need for the drug.

The case related to Lezley Gibson and her husband who both appeared at Court charged with three offences relating to the possession of and cultivation of cannabis. When officers raided their home address they confiscated 10 baby cannabis plants and three homemade cannabis chocolate bars. Their legal team submitted that Ms Gibson suffers from MS and had “no option” but to cultivate cannabis in their home as she was unable to obtain a NHS prescription for the drug nor pay for a private prescription. The prosecution acknowledged that there had been an unlawful production of cannabis but stated that in the circumstances it was “not in the public interest” to proceed against the pair.

The pragmatic and understanding approach taken by the CPS in the case of Ms Gibson will undoubtedly be welcomed by those in a similar situation who are forced to turn to illegitimate means to obtain cannabis for a medicinal purpose. However, without a change in the legislation, it does not provide a defence to any individual buying or cultivating drugs and therefore despite a medicinal need the risk of prosecution and the attached prison sentence remains. It is therefore essential that in the event that an individual finds themselves charged in these circumstances they engage legal representation immediately in order that written representations can be made to the CPS to seek to persuade them that it is not in the public interest to pursue the prosecution.

The author of this blog, Amy Shaffron is a Senior Associate in London and can be contacted via Amy.Shaffron@JMW.co.uk. She regularly advises corporates in relation to the money laundering implications of investing in the worldwide production of cannabis as well as individuals in the UK charged with substantive drugs offences.