Controlled drugs, religion and Article 9: Beneficent Spiritist Center União Do Vegetal

Background

The Beneficent Spiritist Center União do Vegetal is a religion with Christian and reincarnationist foundations; its declared objective to contribute to the spiritual development of the human being and the improvement of his or her intellectual qualities and moral virtues, without distinction of race, sex, creed, social class or nationality. In its rituals it uses hoasca tea (also known as ayahuasca). The tea is prepared from two Amazonian plants: the Mariri vine (Banisteriopsis caapi) and the leaves of the Chacrona bush (Psicotria viridis). In the União do Vegetal (UDV), hoasca tea is also known as “vegetal”; and the congregations drink it for the purpose of mental concentration. The plant materials from which the tea is made contain dimethyltryptamine (DMT), a class A controlled drug under the Misuse of Drugs Act 1971 [1-3].

In a renewed application in Beneficent Spiritist Center União Do Vegetal v Secretary of State for the Home Department [2017] EWHC 1963 (Admin), the claimant, a recognised religious group in Brazil, challenged a decision of the Secretary of State in November 2016 to refuse its application for a licence to import, possess and supply hoasca tea for the purposes of consumption by its congregation.

The claimant argued that the refusal breached its members’ Article 9 rights, while the Secretary of State accepted that the consumption of hoasca was a manifestation of religion [5]. The issue, therefore, was whether the refusal was prescribed by law and necessary in the democratic society in the interests of public safety and the protection of health in accordance with Article 9(2) [6]. The claimant contended that the prohibition was an unnecessary and disproportionate infringement of religious freedoms, especially when the hoasca would be consumed under stringent conditions imposed by the claimant [7]. The claimant also cited Gonzale v O Centro Espirita Beneficente União do Vegetal, 546 US 418 (2006), in which SCOTUS held that the Government had failed to meet the burden of proof under the Religious Freedom Restoration Act that barring the substance served a compelling government interest [13].

The refusal letter gave two main reasons for the decision: a strong public interest in preventing the consumption of class A drugs on public safety and health grounds and the paucity of evidence about the safety and health impact of hoasca, and the risk of the United Kingdom being in breach of its international obligations under the UN Convention on Psychotropic Substances 1971 [8].

The judgment

Sir Ross Cranston, sitting as a judge of the High Court, accepted that, in approaching the matter, the Secretary of State was entitled to a broad margin of appreciation. DMT was a class A drug, there were social and health issues, and the Secretary of State’s approach was not out of line with what was broadly accepted by Council of Europe states [16]. As to the point about the 1971 Convention, the fact that other countries had chosen to take a different path did not undermine the legal analysis and he could see no inconsistency between the 1971 Act and the 1971 UN Convention [19]. The Secretary of State had been entitled to take the view that there was a real risk of a breach of the 1971 Convention; and the issue of adherence to international treaty obligations had been “something which fed into her consideration of the proportionality of the interference with the religious rights of the claimant’s members” [20].

The renewed application was dismissed [21].

Comment

As a footnote, the courts have been slow to accept an Article 9 defence in prosecutions for possessing, importing or using controlled drugs. In R v Taylor [2001] EWCA Crim 2263 the Court dismissed a Rastafarian’s appeal on Article 9 grounds against a conviction for possessing cannabis with intent to supply simply on the facts, even though in the Crown Court the prosecution had conceded that Rastafarianism was a religion and that all the appellant’s cannabis was destined for use in connexion with Rastafarian religious purposes – the trial judge having concluded that the Misuse of Drugs Act 1971 could not be read as incorporating a Rastafarian religious defence under Articles 9 or 8. Similarly – and following Taylor – in R v Andrews [2004] EWCA Crim 947 the Court dismissed a claim by a Rastafarian that his conviction for importing cannabis violated his Article 9 rights and that the Customs and Excise Management Act 1979 was incompatible with the ECHR.

Cite this article as: Frank Cranmer, "Controlled drugs, religion and Article 9: Beneficent Spiritist Center União Do Vegetal" in Law & Religion UK, 31 July 2017, http://www.lawandreligionuk.com/2017/07/31/controlled-drugs-religion-and-article-9-beneficent-spiritist-center-uniao-do-vegetal/

 

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