Judges, Judicial Conduct and General Jackassery

Judge Bernie Kelly knows nothing about the science of cannabis

By James Collins

You might have read about the latest outrageous judgement by Judge Bernie Kelly a member of the bench in the United Kingdom.  She’s a judge in Derry in Northern Ireland in the event you don’t know, who decided to offer her medical wisdom on the subject of cannabis.  It’s become an old story, crotchety old judge hands down ridiculous decision accompanied by a fountain of ignorance on the subject of cannabis.

In this particular case District Judge Bernie Kelly who decided in her infinite wisdom that cannabis would not help a man’s depression.  We’ve all heard that one before; it’s kind of old hat.  It makes the story seem pretty ordinary, but it raises a more important issue which underlies cannabis legalization.  How the hell can we make progress in an environment devoid of objective facts?

One of the greatest obstructions to progress is the judiciary and the likes of Judge Bernie Kelly. While at times the courts can rule in favor of things the sitting government opposes and push the wheels of progress a few more degrees, it is just as often not the case.  The war on drugs is a pretty good example of that.  While the rest of the world has been slowly changing the tune on the subject of the green stuff, a lot of cranky old guys on the bench have not.

This is a huge problem the scope of which I could not overstate.  When the judiciary has the power to overrule lawmakers, even progressive Members of Parliament could find themselves obstructed.  These people, such as Judge Bernie Kelly, are the final word on many issues of great importance to us all – and they’re completely out to lunch!

Judge Bernie Kelly knows nothing about the science of cannabis.

Omagh Court House where Judge Bernie Kelly makes ignorant statements about cannabis that have devastating effects on people’s lives.

Judge Bernie Kelly is far from an isolated case.  This woman’s complete unawareness of scientific and social progress is common place amongst British judges.  I’ve written previously about Judge Wynn Morgan who banned a man from his own garden shed as a bail condition.  Judge Julian Lambert sentenced a man to write a lengthy essay about how the cannabis he used to treat his medical condition was dangerous.  These attitudes are at best archaic and at worst toxic.  It’s an issue that doesn’t get enough attention.

The global medical community has come a long way in the last decade.  When I was a teenager even the scientific community was on the “weed is bad” bandwagon.  Reams upon reams of research have been done into the impact of cannabis on depression and anxiety, and most of it is pretty positive.  In many parts of the United States one can get a medical license for cannabis on the basis of those diagnoses.  When that is the case, how can Judge Bernie Kelly claim otherwise?

One can have a law degree and not know the first thing about science.  I once did work for a prominent Canadian lawyer who claimed with a perfectly straight face that it would be easy to move his giant granite waterfall by “floating” it across his pool.  Most of us learned about the buoyancy principle in elementary school, but it isn’t a question featured on the bar exam.  This guy lived in a mansion and had four Jaguars in the driveway, but he thought rocks could float of their own volition.  See the trouble?

Law and common sense are completely unrelated.  In the case of Judge Bernie Kelly the law and science occupy different planets.

There is absolutely nothing in British Common Law that says a Judge is beholden to scientific literature.  While they may be in some way bound be legal precedent, they are not bound by reality.  Legal precedent presents its own problems because it means all judges must take into account what older judges in the past decided.  That’s an obstruction to progress all by itself, things change all the time, and how can the law forever be gazing into the past?

This is one of those cases where cannabis activism overlaps other social justice issues.  I think the problem stems from the fact that once appointed to the bench Judges remain in their position until they either die or become too drooling and incoherent to prop them up in a courtroom anymore.  My own attorney once said to me when the sixth recess of a five hour hearing was called “this is what happens when you staff the bench with senior citizens”.

Nobody expects your grandmother to come around on social justice issues.  When you reach a certain point in life it becomes very hard to adopt new ideas and attitudes.  You accept something as fact for eighty years or so and it becomes a habit, one which is harder to break than a heroin addiction.  This means that even younger judges are guided by precedents set by crotchety old folks that have no grasp of the modern world.

Some of these judges predate television for crying out loud.  It is time to renew.

The very source of the problem is how judges are appointed and the fact it is almost impossible to get them off the bench.  Until you’re willing to step down, or drop dead, once you are appointed into that black robe you almost have to commit murder to get removed.  It’s a rare case where someone is removed for obvious incompetence or failing neurological health.  That means there are many senile judges out of touch with modern life.

If you call a smart phone “one of them new-fangled gadgets” you have no place judging anything in the 21st century.

Very much like we can’t make progress if Members of Parliament are backwards and out of touch, the same is true of the judiciary.  It’s even truer in a sense, because we can vote useless idiots out of public office; we have to wait for judges to reach their expiry date.

I’m not advocating for elected judges, because I think that leads to its own grandstanding and other assorted public relations nonsense: Just look at America.  I do think there needs to be a judicial review process that oversees the judgements made by these people and keeps them better in line with, you know, reality as the rest of us know it.  If a judge like Judge Bernie Kelly can wrongly declare cannabis has no medical value and go unchallenged, they could also refute evolution, Relativity Theory, and the law of gravity without consequence.

That is not acceptable in a progressive and free society.  Cannabis activists have allies to be found amongst judicial activists.  A narrow focus is good in a sense, but all of our social ails are interrelated.  We can’t really fix one problem unless we have a holistic approach that takes into account all of our problems and the way they impact one another.  In the case of judges like Judge Bernie Kelly, the law and the topic of cannabis, this is particularly true.

James Collins is a Canadian blogger, author and activist. This article originally appeared in Weed World last year.

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  1. Only Expert witnesses should be able to make comments on medical and scientific subjects in a court, that influence sentencing in any way otherwise there would not be any point in having them. What the judge is doing is allowing hearsay from himself as evidence.

  2. I suppose that telling the judge (in a nice way obvioulsly) that he/she are spouting ignorant crap out of their arse on the issue wouldn’t go down too well in court…. “You DARE to question ME?…”………..”I’m afraid you are mistaken your honour, the earth is not flat”…. “Guilty, guilty, guilty… now where’s my black cap….”

  3. Great article, but as I read it, she was merely echoing what law actually is in rhe UK, in that it is schedule 1, ‘no medicinal value’. As a Sativex user, and before that a grower for many tears, ex 2para, too many NI tours and a parachuting accident 30+ yrs ago, I don’t need anyone to tell me about the medicinal uses of this marvelous herb.

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