Parliament passed another step in drug law reform this week, explicitly requiring the police to exercise discretion before prosecuting for possession and use of drugs. This implements the “public interest” test in the Solicitor-General’s guidelines into the law.
I’ve written an urgent request to the Minister of Police (copy below) asking for more information on how those who are already before the courts for medicinal cannabis charges will be treated.
What will the new law say?
Once Royal assent is given for the Misuse of Drugs Amendment Bill 2019- 3rd Reading 7 Aug 2019, new subclauses (5) and (6) will be added to Section 7 of the Misuse of Drugs Act, so it will read:
Section 7 Possession and use of controlled drugs (after Royal Assent of the amendment)
(1) Except as provided in section 8, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—
(a) procure or have in his possession, or consume, smoke, or otherwise use, any controlled drug; or
(b) supply or administer, or offer to supply or administer, any Class C controlled drug to any other person, or otherwise deal in any such controlled drug.
(2) Subject to subsection (3), but without prejudice to any liability under section 6, every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction—
(a) to imprisonment for a term not exceeding 6 months or to a fine not exceeding $1,000 or to both where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:
(b) to imprisonment for a term not exceeding 3 months or to a fine not exceeding $500 or to both in any other case:
provided that, where any person is convicted of an offence against subsection (1) relating only to a Class C controlled drug and is liable to a penalty under paragraph (b), the Judge or District Court Judge shall not impose a custodial sentence (being a sentence under which a person is liable to be detained in a prison within the meaning of the Corrections Act 2004) unless, by reason of the offender’s previous convictions or of any exceptional circumstances relating to the offence or the offender, the Judge or District Court Judge is of the opinion that such a sentence should be imposed.
(3) In any proceedings for an offence against this section in respect of the possession of a controlled drug, in which it is proved that the defendant had a controlled drug in his possession, it shall be a defence for him to prove—
(a) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all reasonable steps to destroy the drug or to deliver it into the possession of a person lawfully entitled to have possession of it; or
(b) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the possession of a person lawfully entitled to have possession of it and that as soon as possible after taking possession of it he took all reasonable steps to deliver it into the possession of such a person.
(3A) In any proceedings for an offence against subsection (1)(a) in respect of possessing or using any plant or plant material of the genus Cannabis or any cannabis preparation, the defendant has a defence if, at the time of the possession or use, the defendant had been diagnosed by a medical practitioner or nurse practitioner as requiring palliation.
(4) Nothing in subsection (3) or (3A) shall prejudice any defence which it is open to a person charged with an offence against this section to raise apart from that subsection.
The new subclauses added by the 2019 amendment gets Royal Assent:
(5) To avoid doubt, it is affirmed that there is a discretion to prosecute for an offence against subsection (1)(a), and a prosecution should not be brought unless it is required in the public interest.
(6) When considering whether a prosecution is required in the public interest, in addition to any other relevant matters, consideration should be given to whether a health-centred or therapeutic approach would be more beneficial .
My urgent request to the Minister of Police:
I am advised that on TV3 this morning you referred to a recent direction in the police newsletter that police are not to charge medicinal users of cannabis.
I act for numerous defendants who have been charged with various offences relating to the medicinal use of cannabis. So far this year every one of my “Green Fairy” and other medicinal user clients have been given a discharge without conviction.
However many other medicinal users are still before the courts at various stages of the criminal justice process.
Even when my clients ultimately get a discharge, the court process is extremely stressful and frightening for sick and otherwise law abiding citizens. The court processes are also demanding on time (with some clients having to travel up to two hours each way to attend court) and on the often very limited financial resources and emotional reserves for defendants and their families.
In many cases my clients have been blocked from employment, training courses, volunteer work, the ability to travel and/or from obtaining licences and other opportunities because of charges relating to their use or cultivation of cannabis for medicinal purposes.
My experience is that the police attitude to cannabis varies considerably between locations around New Zealand. In some places the police are compassionate, however in others there seems to be little if any training on or understanding of the human endocannabinoid system, or how an array of severe chronic disorders can be effectively managed with plant sources cannabinoids with minimal if any side effects – especially compared to the very serious side effects from prescribed drugs such as many opioids.
It is excellent news that you have encouraged discretion and compassion by the police. I would be grateful if you could please urgently provide a copy of your advice or instructions to the police.
This request is urgent because I have clients before the court this week who may be directly or indirectly affected by this and accordingly it is in the interests of justice, fairness (and compassion and kindness) that I have access to the most up to date government advice and can dischss this with Crown prosecutors and make this available to assist the court.
Thank you for your urgent assistance.
Sue Grey LLB(Hons), BSc, RSHDipPHI