Altham v The Queen [2006] EWCA Crim 7

The appellant (A) was involved in a serious road traffic collision 15 years ago in which he dislocated both hips and sustained a fractured pelvis.  His left hip was later removed entirely and as a result he suffered constant pain in his lower limbs.  He tried a number of pain relief strategies none of which were effective.  A informed his GP of the beneficial effects of smoking cannabis as a form of pain relief.  During a visit to A’s house, a police officer discovered a small quantity of cannabis and he was arrested and interviewed.  He claimed it was for pain relief and claimed a defence of duress of circumstances on the basis that he was suffering from serious physical harm.  He also claimed a defence on the basis of Articles 3 and 8 of the ECHR.  A was convicted and appealed.  Following R v Quayle & Others, A accepted that the duress defence and the Article 8 defence were no longer open to him, and his appeal was based purely on Article 3 ECHR.  (Quayle held that a defence of duress of circumstances could not legitimise conduct contrary to clear legislative policy.)

A argued that there were circumstances where severe medical treatment could amount to inhuman or degrading treatment.  He also argued that the State was subjecting a person to such treatment if a person in order to avoid those symptoms had no alternative but to break the law.

The Court described Article 3 as imposing a primarily negative obligation on a State to refrain from inflicting serious harm on person within their jurisdiction.  Had the State had subjected A to degrading treatment?  Following  R v Secretary of State for the Home Dept ex parte Adam & others it held that treatment required something more than a mere failure on behalf of the State.  A argued that the provisions of the Misuse of Drugs Act 1971 should be read as being subject to the defence of medical necessity.  The Court could not agree that the State had done anything to exacerbate A’s condition which arose from circumstances quite unrelated to anything done by the State or any public authority.  It had done nothing to subject A to either inhuman or degrading treatment and thereby engage the absolute prohibition in Article 3.  The State could not be properly regarded as being responsible for harm inflicted on A.  Nor did the State have to take any steps to alleviate A’s condition.  If A’s defence was to be accepted, it would enable individuals to undertake otherwise unlawful activities without medical intervention or prescription.  The defence of duress of circumstances conflicted with the purpose and effect of the Misuse of Drugs Act and A’s Article 3 defence failed.

Appeal dismissed.

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