Skeleton Argument for Edwin Stratton
1. The defendant client objects to this indictment under s7 of the Indictment Act 1915 due to an executive abuse of power that threatens his basic human rights -and the rule of law. Cf. Archbold §1-191 (j) and 4-47 et seq.
2. Accordingly the defendant seeks either 1) to stay the indictment; 2) an adjournment of these proceedings so he can pursue the matter in the Divisional Court; or 3) For this court to decline jurisdiction and require the matter to be pursued in the Divisional Court. Cf. R. v. Central Criminal Court, ex p. Randle and Pottle, 92 Cr.App.R. 323, DC; R v Belmarsh Magistrates ex parte Watts [1999] 2 Cr.App.R. 188 at 195; Archbold § 1-192 & 4-50.
3. The abuse:
a. The defendant believes that the Misuse of Drugs Act 1971 c.38 (“the Act”) is being applied to him in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 and within the ambit of other convention rights.
This denies equal protection to the defendant, alleged to be engaged in property activities with “controlled drugs”, as defined by s2(1)(a) of the Act, with respect to analogous persons engaged in the identical property activities with the dangerous or otherwise harmful drugs alcohol and tobacco.
b. The Government’s Position:
"The Government's policy is and has been to regulate drugs which are classified as illegal through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace".
c. The Government’s position admits discrimination on the grounds of legal status and property within the ambits of Article 1 of the First Protocol, “protection of property”, Article 8 respect for private life, inter alia. More, the Government’s position includes errors of law and fact.
d. Unjustifiable discrimination:
The Act is interpreted and implemented unequally with respect to consumers, producers and traders of (a) harmful drugs used by minorities, the drugs currently controlled under the Act,
and
(b) equally harmful drugs used by the majority, alcohol and tobacco, arbitrarily excluded from the Act.
The Act therefore unjustifiably discriminates between those in the same position, those who consume or trade equally harmful drugs. Cf. A & Others v SSHD [2004] UK HL 56 at 46 et seq; Pretty v UK [2002] 35 EHRR 1 at para 77:
“Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law.”
e. Failure to justifiably discriminate: regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use, production and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import.
The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use, production or trade:
(a) use or trade unreasonably harmful to the consumer or trader alone, ‘voluntary risks’, and
(b) use or trade unreasonably harmful to others, ‘involuntary risks’. Voluntary risks do not infringe human rights while involuntary risks do.
The Act therefore fails to justifiably discriminate between those in different situations. Cf. Thlimmenos v Greece [2000] 31 EHRR 411 para 44:
“The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
4. As a result of this abuse by the executive a fair trial is not possible.
The Defendant’s remedy lies with the Divisional Court.
CPS Guidance – Abuse of Process - Misuse of Process - f. Unconscionable behaviour by the executive This category of the doctrine of abuse is more exceptional than those described above. It arises from the duty of the High Court (first articulated in the case of Bennett v Horseferry Magistrates Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).
Applications for a stay based on this ground cannot be determined in any tribunal below the High Court because they involve the judiciary exercising a supervisory function over the actions of the executive (Bennett v Horseferry Road Magistrates Court, per Lord Griffiths at 152 H-J).
Where the defence wishes to make such an application at the beginning
or as a preliminary to trial, the proper procedure is for the
instant proceedings to be adjourned and for the defence to commence
proceedings in the High Court for a declaration that continuing the
prosecution would amount to an abuse of the process
.
In the US Supreme Court (Railway Express Agency Inc v New York [1949], para 112), Justice Jackson explained why the courts have a duty to prevent the abuse of political power by upholding the right to equality before the law:
“There is no more effective practical guarantee against arbitrary and
unreasonable government than to require that the principles of law which
officials would impose upon a minority must be imposed generally.
Conversely, nothing opens the door to arbitrary action so effectively as
to allow those officials to pick and choose only a few to whom they will
apply legislation and thus to escape the political retribution that might
be visited upon them if larger numbers were affected. Courts can take no
better measure to assure that laws will be just than to require that laws
be equal in operation.
2. Accordingly the defendant seeks either 1) to stay the indictment; 2) an adjournment of these proceedings so he can pursue the matter in the Divisional Court; or 3) For this court to decline jurisdiction and require the matter to be pursued in the Divisional Court. Cf. R. v. Central Criminal Court, ex p. Randle and Pottle, 92 Cr.App.R. 323, DC; R v Belmarsh Magistrates ex parte Watts [1999] 2 Cr.App.R. 188 at 195; Archbold § 1-192 & 4-50.
3. The abuse:
a. The defendant believes that the Misuse of Drugs Act 1971 c.38 (“the Act”) is being applied to him in an arbitrary and discriminatory manner based on historical and cultural factors that lack a consistent and objective basis contrary to Article 14 and within the ambit of other convention rights.
This denies equal protection to the defendant, alleged to be engaged in property activities with “controlled drugs”, as defined by s2(1)(a) of the Act, with respect to analogous persons engaged in the identical property activities with the dangerous or otherwise harmful drugs alcohol and tobacco.
b. The Government’s Position:
"The Government's policy is and has been to regulate drugs which are classified as illegal through the 1971 Act and to regulate the use of alcohol and tobacco separately. This policy sensibly recognises that alcohol and tobacco do pose health risks and can have anti-social effects, but recognises also that consumption of alcohol and tobacco is historically embedded in society and that responsible use of alcohol and tobacco is both possible and commonplace".
c. The Government’s position admits discrimination on the grounds of legal status and property within the ambits of Article 1 of the First Protocol, “protection of property”, Article 8 respect for private life, inter alia. More, the Government’s position includes errors of law and fact.
d. Unjustifiable discrimination:
The Act is interpreted and implemented unequally with respect to consumers, producers and traders of (a) harmful drugs used by minorities, the drugs currently controlled under the Act,
and
(b) equally harmful drugs used by the majority, alcohol and tobacco, arbitrarily excluded from the Act.
The Act therefore unjustifiably discriminates between those in the same position, those who consume or trade equally harmful drugs. Cf. A & Others v SSHD [2004] UK HL 56 at 46 et seq; Pretty v UK [2002] 35 EHRR 1 at para 77:
“Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law.”
e. Failure to justifiably discriminate: regulations for the non-medical use of those drugs excluded from the Act, alcohol and tobacco, distinguish between reasonably safe, responsible drug use and trade, and unreasonably harmful, irresponsible drug use, production and trade. Regulations for the non-medical use of those drugs included by the Act fail to make this justifiable distinction, instead applying a blanket prohibition of all property rights of possession, supply, production and export/import.
The Act also fails to justifiably distinguish two distinct forms of unreasonably harmful use, production or trade:
(a) use or trade unreasonably harmful to the consumer or trader alone, ‘voluntary risks’, and
(b) use or trade unreasonably harmful to others, ‘involuntary risks’. Voluntary risks do not infringe human rights while involuntary risks do.
The Act therefore fails to justifiably discriminate between those in different situations. Cf. Thlimmenos v Greece [2000] 31 EHRR 411 para 44:
“The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
4. As a result of this abuse by the executive a fair trial is not possible.
The Defendant’s remedy lies with the Divisional Court.
CPS Guidance – Abuse of Process - Misuse of Process - f. Unconscionable behaviour by the executive This category of the doctrine of abuse is more exceptional than those described above. It arises from the duty of the High Court (first articulated in the case of Bennett v Horseferry Magistrates Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).
Applications for a stay based on this ground cannot be determined in any tribunal below the High Court because they involve the judiciary exercising a supervisory function over the actions of the executive (Bennett v Horseferry Road Magistrates Court, per Lord Griffiths at 152 H-J).
Where the defence wishes to make such an application at the beginning
or as a preliminary to trial, the proper procedure is for the
instant proceedings to be adjourned and for the defence to commence
proceedings in the High Court for a declaration that continuing the
prosecution would amount to an abuse of the process
.
In the US Supreme Court (Railway Express Agency Inc v New York [1949], para 112), Justice Jackson explained why the courts have a duty to prevent the abuse of political power by upholding the right to equality before the law:
“There is no more effective practical guarantee against arbitrary and
unreasonable government than to require that the principles of law which
officials would impose upon a minority must be imposed generally.
Conversely, nothing opens the door to arbitrary action so effectively as
to allow those officials to pick and choose only a few to whom they will
apply legislation and thus to escape the political retribution that might
be visited upon them if larger numbers were affected. Courts can take no
better measure to assure that laws will be just than to require that laws
be equal in operation.
