Types of Cultivation of Cannabis Plant.

2009.05.05

Cultivation for personal use

One issue is the seeming anomaly of distinguishing between cultivation of a cannabis plant for personal use and the possession of cannabis from the same plant once it has been harvested. Simply to achieve coherence and consistency in the law there are persuasive grounds for treating cultivation for personal use on a par with possession. Home cultivation also insulates users from criminal suppliers, which gives a further reason for treating cultivation for personal use as a form of possession.

In practice, this would mean that when cannabis is reclassified as a Class C drug, the police should no longer arrest the majority of those found cultivating cannabis for personal use, but would instead warn them on the spot and confiscate the plants. If legislation is enacted to retain police powers of arrest for possession offences, all that would be required would be to issue guidance to the police about cultivation, in parallel with that relating to possession.

Parliament may yet decide to make possession of cannabis completely non-arrest able. If this were so, there would be a strong case for creating a new offence of cultivation for personal use. This offence would mirror that of possession by having a maximum sentence of two years, and thus be non-arrest able. Either way, law or practice would require some criterion for defining cultivation for personal use. It would probably make more sense to specify an objective threshold, in terms of weight or number of plants, than to leave the decision to police and prosecutorial discretion. If cultivation for personal use were treated akin to possession, there would be resulting implications for handling ‘premises’ offences under Section 8 of the MDA. If on-the-spot warnings for small-scale home growing were to become the norm, it would be inconsistent to treat anyone who had allowed their premises to be used for the offence to be punished with more severity.

Non-commercial social cultivation

Those who cultivate cannabis for their own and their friends’ use on a non-commercial basis are a significant and important group for drug policy. A more careful distinction in law between social and commercial cultivation could serve to drive a wedge between a significant proportion of users and the criminally sophisticated suppliers who might otherwise sell them cannabis and other drugs. One policy option is to create offences of social supply and of social cultivation of cannabis – defined in terms of the non-commercial distribution of cannabis to non-strangers. Another is to leave the legislation unchanged, but to issue criminal justice agencies and courts with guidance on appropriate charges and sentences for social or not-for-profit cultivation offences. As with cultivation for personal use, it would seem to make sense to set a threshold in terms of weight or number of plants for distinguishing between commercial and non-commercial cultivation. Sanctions for the latter might range from a small fine for an offence falling just above the threshold for personal use, to a much larger fine for an offence falling just below the threshold for commercial cultivation.

Commercial cultivation

The Government’s proposals in relation to cannabis possession do not carry implications for commercial cultivation in the direct way that they do for personal and social cultivation. Indeed, with clause 248 of the Criminal Justice Bill it is proposed to raise the maximum penalty for Class C trafficking offences to 14 years – the same as for Class B. The intention is clearly that a commercial cultivator charged with production will be treated no differently after reclassification. While a tough stance towards cannabis dealing could be seen as the political price for the policy of on-the-spot warnings for possession, it may also have unwanted consequences. Cracking down on dealers, of whom an increasing number will be commercial or semi-commercial cultivators, will drive out the risk adverse, leaving the distribution system to the more criminal and risk-tolerant operators. This may bring about a greater convergence of Class A and cannabis markets. By contrast, a pragmatic policy would be to treat cannabis dealers and commercial growers less like suppliers of Class A drugs, not more like them, and would leave the maximum sentences for trafficking in Class C drugs unchanged.

Medical cultivation

Cannabis-based drugs are currently undergoing clinical trials. In the intervening period, and probably thereafter, significant numbers of people will continue to cultivate cannabis to relieve their own or others’ medical symptoms. These cultivators run the same risks of arrest and prosecution as non-medical cultivators. Individuals can obtain ‘authorisation to possess’ cannabis for medical purposes, and can possess a maximum quantity equal to a 30-day treatment supply specified by a medical practitioner. They or their representative can apply for a license to grow a specified amount of cannabis.