THE LAW UP IN SMOKE?

A mild evening in October and Daniel Westlake had just started cooking
dinner, in the place in Tunbridge Wells he was house-sitting for a
friend, when the doorbell rang. It was Kent police, with a warrant to
search the house. Its owner had just been arrested in nearby Surrey
for possession of cannabis . Within minutes, the police had also found
a small amount of the drug in Westlake's room and arrested him too.

For Kent police, it was just another routine case of possession under
the Misuse of Drugs Act 1971. Only forty-two grams of the illegal drug
were found, enough for a couple of months' supply. When the case got
to court, in May last year, he was found guilty and was conditionally
discharged.

Today, the 23-year-old administrative assistant, who works for a
pensions firm in Kent, is going to the Court of Appeal, to argue under
the Human Rights Act that he is not guilty. His case, if successful,
could be the catalyst that unravels Britain's drugs laws.

"At the end of the day, I don't see that I have done anything wrong,"
says Westlake. "But I have a conviction that inhibits my ability to
travel, my job choices and my life and I think that it is out of order."

Westlake happily admits that he is a regular cannabis user. He has
even been cautioned twice for possession in the past. But his defence
- - that it is now illegal for the government to interfere unduly with
the private life of an individual - has the potential to turn the
government's drugs policy on its head.

Westlake will invoke Section 8 of the Human Rights Act, which
essentially allows people to do what they like in their own homes, as
long as it doesn't harm anyone else.

One of the highest profile cases in which this defence was used was
under the European Convention of Human Rights in 1997. Three men,
prosecuted during the notorious "Operation Spanner" investigation into
a group of sadomasochists, attempted to defend their right to inflict
pain on each other for sexual pleasure.

However, by ruling that Britain was right to prosecute the men, the
European Court of Human Rights confirmed limits to rights of privacy.
The government had insisted that sadomasochistic acts, even if
consensual, could cause harm to others.

David MacLean, a former Home Office minister and Tory MP for Penrith
and the Border, believes that the cannabis cases will fail in a
similar way.

"Legally, they are on rocky ground," says MacLean, who faces an
election challenge from Mark Gibson, a prospective parliamentary
candidate for the Legalise Cannabis Alliance in his constituency. "The
state always has the right to have a say in some activity which is
dangerous for the public as a whole. If some screwball wants to sit at
home, roll up his own carpet and smoke it, then that's fine. But the
trouble is, with cannabis and other drugs it is not confined to
consenting users. The innocent get sucked into it. These cannabis
users don't sit in their own homes and smoke joints. They go to
parties and discos and young people become involved. It spreads."

Indeed, there is a more sinister wing of the pro-drugs lobby following
Westlake's case with interest. This group wants to legalise not just
cannabis but all drugs including heroine and crack cocaine.

"If the Human Rights Act is paramount for cannabis, it should be the
same for all drugs," says Danny Kushlick, of Transform.

There are currently half a dozen cases like Westlake's going through
the UK courts. All concern cannabis. Many of them will argue their
innocence on the ground of medical necessity. Others will argue simply
that it is their right to do what they like behind closed doors.

One such case is that of Jerry Ham, a cannabis user in London. He is
being represented by human rights group Liberty. Mary Cunneen, a
solicitor for Liberty, believes that Ham has a strong case. "In our
opinion prosecuting an individual for possession of cannabis does
breach the Act. Jerry Ham is defending himself on the basis that it is
a breach of Article 8 of the Human Rights Act, which deals with the
respect for private life."

Ham, founder of the homeless charity, Groundswell, was arrested when a
London policeman noticed a torn Rizla paper in the van he was driving,
stopped and searched him. He was arrested for carrying 3 grams of the
drug. But when he was later offered a caution, he refused.

"I am a cannabis user," says Ham, "But I don't believe I should be
imprisoned for it. I even bought my cannabis from an ethical source,
with no links to any criminal hierarchy. I fundamentally believe that
personal use should be decriminalised and I think we have a tight
legal argument which will prove it."

Ham, Westlake and the campaigners who support them may be optimistic.
But is the British legal establishment really prepared to give free
reign to pot smokers?

For the first time in Britain, campaigners from the Legalise Cannabis
Alliance will stand in a general election, fielding about 100 candidates.

They talk of a liberalising of attitudes surrounding use of the drug.
They quote MPs of every political hue including Mo Mowlam, Nick Ainger
and Francis Maude who have admitted using cannabis. And they point to
other European countries, where the police and the courts no longer
prosecute individuals for possessing small quantities of the drug.

However the Home Secretary Jack Straw, whose own son was caught
dealing cannabis, has made it clear that he has no interest in
relaxing the laws on the drug. Both he and Tony Blair have been
unwavering in their refusal to soften their hard line. It is the
government's stance that any relaxation of the law would send out the
wrong message to young people.

And many people, even from within the civil rights movement, feel that
the courts are a long way away from accepting change. John Scott,
chairman of the Scottish Human Rights Centre, says that the cases have
"a snowball's chance in hell" of succeeding.

"I can see it happening several years down the line," says Scott, "but
I don't think we are at the stage where the courts are ready to say
'You can do whatever you want to yourself in your own house, behind
closed doors'."

Scott believes that, if anything, a challenge of the charge of
possession of drugs for personal consumption under the Human Rights
Act would stand more of a chance north of the Border.

"In Scotland judges have tended to take a pro-rights of the accused
individual stance and in England they have tended to take a pro-rights
of society stance," he says. "So if anywhere, you would think that
Scotland would be more likely to accept the argument. But I don't
think that courts in Scotland or England are ready to say that
whatever goes on behind closed doors is okay. It is too big a leap."

Ultimately, it is the court which will decide. But cannabis
campaigners have taken great solace in the advice recently given by a
judge to Rastafarians, who smoke the drug as part of their religion.
Last month, a Rastafarian's argument that using and selling the drug
was his legal right was rejected at Inner London Crown Court. However,
Judge Charles Gibson urged Rastafarians to consider whether a High
Court challenge under the Human Rights Act might allow them the right
to use the drug. Such a move, he says, could result in an important
declaration that the UK drug laws and the freedoms protected by the
recently enacted Human Rights Act were "incompatible".

Former barrister, Roger Warren-Evans, who is now on the council of
Liberty, is confident that the cannabis campaigners will win. He also
believes that the result will provide an opportunity for the
government to reform its drugs policy without losing face.

"The CPS know that they would lose a case of simple personal
possession under the Human Rights Act, so they are trying not to get
it into court," he says. "It is not a crime to put weedkiller in your
own mouth and commit suicide, so why should it be a crime to take
drugs? They will get caught out on this one and they will have to
redesign the whole system and introduce some sort of system of
legalising a limited supply. Politically, it could be a blessing in
disguise. The politicians will be able to say that they continue to
disapprove but that they have to abide by the courts. It would provide
them with a superb, ice-cold cover for reforming the drugs laws."

The implications of a declaration that UK drug laws and the human
rights legislation are incompatible are deadly serious. If the
cannabis campaigners are successful it could pave the way for a legal
battle to decriminalise other, harder drugs.

Meanwhile, Kushlick and colleagues are planning a test case which he
believes may make it impossible for anyone to be imprisoned for
possession of any illegal drug. "You are allowed to kill yourself with
alcohol and tobacco," he says, "so why not any other drug?"