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Rastafari and Cannabis: Framing a Criminal Law Exemption

Published online by Cambridge University Press:  21 July 2010

Matthew Gibson
Matthew Gibson
Affiliation:
Liverpool Law School, University of Liverpool
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Abstract

Rastafari cannabis use presents a challenge in reconciling the doctrines of freedom of religion and the criminal law. Hitherto, the domestic courts have not resolved this clash in favour of religion, displaying reluctance to explore the doctrinal limits of religious freedom. This has occurred at a time of increasing Rastafari numbers across the United Kingdom, forcing some followers to choose between adherence to either their religion or generally applicable criminal laws. Such ‘choice’ inhibits the development of domestic religious freedoms where they conflict with criminal laws protecting wider societal and communitarian interests. This dilemma could be addressed through a statutory exemption in England and Wales from domestic anti-drugs legislation for purposes of religious manifestation. This paper examines the difficult balance between the criminal law and Rastafari cannabis claims in the relevant jurisprudence. A comparative analysis highlights that treatment of religious freedom in Rastafari cannabis case law outlines not only doctrinal scope for a domestic religious drug-use exemption, but also some ways in which regulation could be practically framed. Other jurisdictions' attitudes to non-religious recreational drug use are also instructive in this task.1

Type
Articles
Information
Ecclesiastical Law Journal , Volume 12 , Issue 3 , September 2010 , pp. 324 - 344
Copyright
Copyright © Ecclesiastical Law Society 2010

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References

1 This article is based upon a paper presented to the Law and Religion Scholars Network: Doctoral Students Conference at Oxford Brookes University on 30 June 2009. My thanks to Professor Dominic McGoldrick, Professor Michael Dougan and Mr Kiron Reid of the University of Liverpool, Professor Peter Edge of Oxford Brookes University and the anonymous reviewers for their helpful comments on earlier drafts. The usual proviso applies.

2 The recognised collective term ‘Rastafari’ is used to refer to Rastafarian followers throughout this paper.

3 For some analysis of the Rastafarian faith, its religious practices and suggested reasons for their recognition and protection see: Poulter, S, Ethnicity, Law and Human Rights (Oxford, 1999)Google Scholar, ch 9; O'Brien, D and Carter, V, ‘Chant Down Babylon: freedom of religion and the Rastafarian challenge to majoritarianism’, (2002) 18 Journal of Law and Religion 219CrossRefGoogle Scholar; and Mhango, MO, ‘The Constitutional Protection of Minority Religious Rights in Malawi: the case of Rastafari students’, (2008) 52(2) Journal of African Law 218.Google Scholar

4 For details of the announcement on 7 May 2008, see: <http://drugs.homeoffice.gov.uk/publication-search/cannabis/acmd-cannabisreclassification2835.pdf?view=Binary>, accessed 8 January 2010.

5 ACMD, Cannabis: Classification and Public Health (2008): <http://drugs.homeoffice.gov.uk/publication-search/acmd/acmd-cannabis-report-20082835.pdf?view=Binary>, accessed 8 January 2010.

6 House of Commons Hansard Debates for 7 May 2008: <www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080507/debtext/80507-0004.htm#08050765000005>, accessed 8 January 2010.

7 ACMD, Cannabis: Classification and Public Health, at para 13.4.1, p 33.

8 See also an open letter written to the Guardian, 25 November 2008, detailing the opposition of some scientists and politicians to the government's position: ‘Lords Must Stop Plan to Reclassify Cannabis’. Viewed at <www.guardian.co.uk/society/2008/nov/25/drugs-alcohol-cannabis>, accessed 8 January 2010.

9 This may exacerbate various moral questions. How far, if at all, are those who break the criminal law culpable when adhering to a recognised religion? Is criminal law sanction appropriate in such circumstances? Does punishment for such criminal liability match culpability? Is it in the public interest to criminalise and label those who break the criminal law in these circumstances?

10 ‘Rastafarian Temple Drugs Trial Collapse’, Guardian, 8 April 2008: <www.guardian.co.uk/uk/2008/apr/08/law.drugsandalcohol>, accessed 8 January 2010.

11 Judgment no 28720 of 03 June 2008, lodged on 10 July 2008 with the Italian Supreme Court of Cassation (Criminal Division).

12 Farnhill v United Kingdom Appl No 35853/07. See the Cannabis Assembly: <www.cannabisassembly.org>, accessed 8 January 2010.

13 ‘How To Stop The Drugs Wars’, The Economist, 5 March 2009: <www.economist.com/printedition/displayStory.cfm?story_id=13237193>, accessed 8 January 2010.

14 See R (E) v Governing Body of JFS [2009] UKSC 15 per Baroness Hale at paras 69–70, and Ladele v Islington London Borough Council [2009] EWCA Civ 1357 per Lord Neuberger MR at paras 72–73.

15 The term ‘Rastafarianism’ is used to distinguish the Rastafarian religion from Rastafari followers throughout this paper.

16 Applied mutatis mutandis in Scotland and Northern Ireland.

17 See <www.statistics.gov.uk/cci/nugget.asp?id=954>, accessed 5 January 2010.

18 Mhango, The Constitutional Protection of Minority Religious Rights in Malawi', p 220.

19 Ibid, p 222.

20 Poulter, Ethnicity, Law and Human Rights, p 356. Poulter also cites other Biblical evidence: Genesis 1:29, (‘The Beginning’) and 3:18, (‘The Fall of Man’); Exodus 10:12, (‘The Plague of Locusts’); Psalm 104:14; Proverbs 15:17; Revelation 22:2, (‘The River of Life’).

21 United Nations (UN) Human Rights Committee (HRC) decision in MAB, WAT and J-AYT v Canada (CCPR/C/50/D/570/1993). Applying Article 18 of the UN International Covenant on Civil and Political Rights (ICCPR), it was said that ‘a belief consisting primarily or exclusively in the worship and distribution of a narcotic drug cannot conceivably be brought within the scope of Article 18 of the Convention (freedom of religion and conscience)’, at para 4.2.

22 Smith, M, Augier, R and Nettlefold, R, The Rastafari Movement in Kingston, Jamaica (Kingston, 1960), pp 17–18.Google Scholar

23 Edge, PW, ‘The Legal Challenges of Paganism and Other Diffuse Faiths’, (1996) 1 Journal of Civil Liberties 216, pp 221–222.Google Scholar

24 See also ‘Successful legal exemptions – England and Wales’ below.

25 R v Taylor [2001] EWCA Crim 2263.

26 Per Rose LJ at paras 14 and 31.

27 R v Andrew [2004] EWCA Crim 947.

28 This lack of justification also operated pre-HRA where Rastafarianism was accepted as a religion: R v Williams [1979] 1 Cr App R (S) 5; R v Daudi and Daniels “1982” 4 Cr App R (S) 306; and R v Dalloway [1983] 148 JPN 31. For detailed discussion of these decisions, and Taylor and Andrews, see ‘Location of an exemption in domestic criminal law’ below.

29 For example, see the ‘African Caribbean Self-Help Foundation’ (registration number: 1047139), and the ‘Rastafarian Advisory Service’ (registration number: 295863), viewed on the Charity Register: <www.charitycommission.gov.uk> (accessed 8 January 2010).

30 (2002) (2) SA 794. For detailed discussion, see ‘Interference – Justification of interference’ below.

31 Drugs and Drug Trafficking Act 140, 1992, s 4(b); Medicines and Related Substances Control Act 101, 1965, s 22(a).

32 The case was decided by a bare majority of 5:4.

33 Per Ngcobo J at para 40.

34 Per Chaskalson CJ, Ackerman and Kriekgler JJ at para 97.

35 [1983] 2 AC 548.

36 Per Lord Fraser at p 562. This test was recently applied in JFS, see n 14 above, and R (Watkins-Singh) v The Governing Body of Aberdare Girls' High School [2008] EWHC (Admin) 1865.

37 Crown Suppliers (Property Services Agency) v Dawkins [1993] ICR 517 CA.

38 Seide v Gillette Industries Ltd [1980] IRLR 427.

39 A majority of the UK Supreme Court found the school's oversubscription admissions policy, based on preferred forms of matrilineal Jewish descent according to the Office of the Chief Rabbi, to be direct discrimination under the Race Relations Act 1976: see Baroness Hale, paras 65–71. However, the school claimed its policy was legitimately based on religion rather than race, a point with which Lord Brown in the minority agreed: see para 245.

40 O'Brien and Carter, ‘Chant Down Babylon: freedom of religion and the Rastafarian challenge to majoritarianism’, p 244.

41 R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15.

42 Per Lord Nicholls at para 23.

43 Ibid.

44 I Leigh, ‘Recent Developments in Religious Liberty’, (2009) 11 Ecc LJ 65, pp 65–66.

45 See Taylor, n 25 above, per Rose LJ at para 14. The matter was also referred to briefly in Andrews in relation to cannabis use and centrality of belief. See n 27 above, per Laws LJ, para 21.

46 Per Chakalson CJ, Ackermann and Kriegler JJ at para 97.

47 Per Ngcobo and Sachs JJ at paras 42 and 147, respectively.

48 The validity of the test as a screening device was confirmed in United States v Ballard (1944) 322 US 78, at para 87.

49 O'Brien and Carter argue that the US courts have used this test to attack unpopular religions, p 237.

50 Robinson v Foti 527 F Supp 1111 (ED La 1981).

51 Ibid, at p 1113.

52 Reed v Faulkner (1988) 842 F2d 960.

53 O'Brien and Carter, p 236.

54 Mhango, p 232.

55 O'Brien and Carter, pp 235–236.

56 Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005), p 187.CrossRefGoogle Scholar

57 Emphasis added.

58 Ahdar and Leigh, Religious Freedom in the Liberal State, p 188.

59 See n 20 above.

60 O'Brien and Carter, p 238.

61 Ibid, p 221.

62 R (Begum) v Denbigh High School [2006] UKHL 15.

63 Per Lord Hoffman at para 50.

64 Per Silber J at para 29 in Watkins-Singh.

65 See Leigh, ‘Recent Developments in Religious Liberty’, p 67.

66 Per Ngcobo J at para 42.

67 Edge, ‘The Legal Challenges of Paganism and Other Diffuse Faiths’, p 224.

68 Ibid.

69 Laws LJ did not decide whether the domestic legislation in question would prima facie violate a person's rights under Article 9. Rather, he progressed to an analysis of whether such legislation was justified under Article 9(2). See para 21.

70 Per Laws LJ at para 21.

71 110 SC 1595 (1990).

72 The minority in Smith found that interference had occurred and proceeded to assess whether this could be justified. For detailed discussion, see ‘Justification of interference’ below.

73 Per Scalia J at para 890.

74 Per Scalia J at paras 879–881.

75 Edge, P W, Religion and Law: an introduction (Aldershot, 2006), p 83.Google Scholar

76 See Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27.

77 Per Lords Bingham and Hoffman at paras 25 and 51, respectively.

78 See R (X) v The Headteacher of Y School [2007] EWHC 298 (Admin); and R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698.

79 Per Lord Hoffman at para 52.

80 At para 92.

81 Per Lord Nicholls at para 41.

82 Per Chaskalson CJ, Ackerman and Kriekgler JJ at para 97.

83 Per Ngcobo J at para 44.

84 Constitution of South Africa, s 15.

85 Constitution of South Africa, s 31.

86 Per Chaskalson CJ, Ackermann and Kriegler JJ at para 132.

87 Ibid, at paras 111 and 134.

88 Prince appealed this decision to the African Commission on Human and Peoples' Rights in 2002 and the UN HRC in 2006 (Communication No 1474/2006). Both appeals were unsuccessful.

89 Per Ngcobo J at para 74.

90 Ibid, at para 81.

91 Ibid, at para 83.

92 Per Sachs J at para 149.

93 Per Ngcobo J at para 84.

94 Per Blackmun J at para 920.

95 Montana Statutes (1959) 94-35-123: ‘[T]he terms of this act shall not apply to transporting, possession or using said peyote for religious sacramental purposes by any bona fide religious organization incorporated under the laws of the state of Montana’.

96 ‘The success of these exemptions suggests that the state's fear is without foundation’. Breslin, HP, ‘Statute Prohibiting Use of Peyote Unconstitutional as Applied to Religious Users’ (1965) 17 3Stanford Law Review 494, p 497.CrossRefGoogle Scholar

97 People v Woody (1964) 40 Cal Rptr 69.

98 S 3(a).

99 S 3(b).

100 Gonzales, Attorney-General et al v O Centro Espirita Beneficente Uniao do Vegetal et al (2006) 546 US 418. See also ‘Domestic Rastafari cannabis use and regulation – UK international obligations’.

101 Per Blackmun J at para 918.

102 Ibid.

103 O'Brien and Carter, p 243.

104 Poulter, p 371.

105 Appl No 12587/86.

106 Stavros, S, ‘Freedom of Religion and Claims for Exemption from Generally Applicable, Neutral Laws: lessons from across the pond?’ (1997) 6 EHRLR 607, at 620.Google Scholar

107 See Kokkinakis v Greece 14307/88; Manoussakis v Greece 18748/91.

108 Stavros, ‘Freedom of Religion and Claims for Exemption from Generally Applicable, Neutral Laws: lessons from across the pond?’, p 626.

109 Harris, D, O'Boyle, M, Bates, E and Buckley, C, Harris, O'Boyle and Warbrick: Law of the European Convention on Human Rights (second edition, Oxford, 2009), p 441.Google Scholar

110 Judgment No. 28720 of 03/06/2008 of the Italian Supreme Court of Cassation (Criminal Division).

111 Poulter, p 369.

112 Ibid, p 370.

113 See table provided by the European Legal Database on Drugs at: <http://eldd.emcdda.europa.eu/html.cfm/index5769EN.html>, accessed 8 January 2010.

114 Criminal Justice Act 1988, s 139(5)(b).

115 Knights, S, Freedom of Religion, Minorities & the Law (Oxford, 2007), p 189.Google Scholar

116 See also the Sikh exemption from criminal laws requiring the use of protective headwear when using a motor cycle: Road Traffic Act 1988, s 16(2).

117 Poulter, p 356.

118 (1979) 1 Cr App R (S) 5.

119 Ibid.

120 (1982) 4 Cr App R (S) 306.

121 Per Griffiths LJ at para 4.

122 Ibid.

123 Ibid.

124 See also R v Dalloway (1983) 148 JPN 31. The defendant was charged under s5(3), the Misuse of Drugs Act 1971 despite his defence that the cannabis was not for sale but for fellow Rastafarians to use.

125 See n 25 above.

126 This interpretation has also received support from other commentators. For example: Edge, Religion and Law: an introduction, p 84.

127 Ibid.

128 See Article 36(1)(a).

129 See Articles 3.1(a)(i) and 3.1(2).

130 Poulter, p 369.

131 Per Rose LJ at para 15.

132 Ibid, at para 17.

133 Unreported, although see the media, for example, ‘Rasta Drug May Be a Human Right, Says Judge’, The Times, 19 December 2000.

134 Loveland, I, ‘Religious Drug Use as a Human Right?’ (2001) 151 New Law Journal 41, p 42.Google Scholar

135 (2006) 546 US 418.

136 Per Roberts CJ at pp 435–436.

137 Per Ngcobo J at para 64.

138 See <http://eldd.emcdda.europa.eu/html.cfm/index5769EN.html>, accessed 8 January 2010.

139 Per Ngcobo J at para 64 in Prince.

140 See <http://eldd.emcdda.europa.eu/html.cfm/index5769EN.html>, accessed 8 January 2010.

141 Ibid.

142 Per Sachs J at para 149.

143 Cooper, J and McLeish, M, ‘Religious Freedom Under The Human Rights Act 1998’, (1999) 3(4) The Muslim Lawyer 4, p 8.Google Scholar

144 Harris et al, Harris, O'Boyle and Warbrick: Law of the European Convention on Human Rights, p 441.