Summary Of Billy McKee’s cannabis hearing at the appeal court by Rosie.
The Court of Appeal seemed very sympathetic to Mr McKee’s charges and his sentencing. They questioned the Crown very severely about the sentencing beginning at such a high starting point for all of $280 worth of cannabis, having regard to his personal circumstances and that it was for medicinal purposes only. They also were hard on the Crown and sympathetic to the issues we raised regarding entrapment by the police operation generally and the undercover officer.
The Judges showed the greatest respect to Mr McKee who spoke extremely well about his sentence and why it was unjust; Billy provided facts about the case and his position, which were not brought out at the original hearing, which were well received. The Judges clearly sensed his goodness, the genuineness of his appeal and his integrity as a whole as they smiled, helped and even joked with him on one occasion.
On the legal points, Rosie Purchas explained to the court about the logical impossibility under the Misuse of Drugs Act 1975 regarding section 8(2) which exempts GreenCross card holders from prosecution for personal use where there is medical endorsement and is accepted by the police yet the same section requires that the controlled drug be “lawfully supplied”. In the circumstances where cannabis can not be bought at a pharmacy via prescription, for the cannabis to be lawfully supplied has to therefore mean that cardholders must presume that there is a corollary exemption from prosecution for cultivation for personal medicinal use if the exemption is valid. Cultivation, however, was one of Mr McKee’s charges.
If this argument is accepted by the court (that an implied corollary exemption for cultivation for personal use must exist) then to supply to another GreenCross cardholder (as the undercover officer was) could be said to be a logical extension of the exemption to “lawful supply”, which were the other four charges.
On the claim that the Judge misdirected the jury so that Mr McKee had the benefit of a trial by jury removed from him, the Court was less sympathetic. We had claimed that the directions from the Judge to the jury were erroneous insofar as they seemed to tell the jury to ignore their consciences (which is the very benefit of a trial by jury) and gave specific examples of ways in which we alleged she had specifically told the jury to ignore the very issues of sympathy and emotion, opinion, consideration as to whether the laws were unjust regarding Mr McKee and to look only at the evidence of the Crown and the laws and to acquit or convict “even if they find it difficult”. The Appeal Court Judges were not pleased by this challenge. They stated that the Judge’s directions were both unexceptional and standard directions which had been approved from the highest authority. We replied that in that case they had been wrong for a long time! They disputed this saying that perverse verdicts (ones that ignore the law and the facts) were not uncommon despite these standard directions. We disputed the commonness of a perverse verdict. I am not sure that they will sway on this point but it will be interesting to read their reasons in their Judgment which has been reserved. A reserved judgment means that the Judges need to confer to think about all the points raised and when agreement between them is reached, it will be sent to Mr McKee and Rosie.
Overall, however, my opinion is that it is very likely that Mr McKee’s sentence will be altered, likely that the charges will be dropped due to entrapment and the confusion surrounding the exemption under section 8(2) in terms of cultivation and supply, possible that the exemption provisions of the MDA will be recommended to Parliament to be changed to include medicinal cannabis use as endorsed by a doctor in its ambit so that sense can be made of their practicability and unlikely that they will agree that the Judge’s directions were erroneous.