EXPLANATORY MEMORANDUM TO THE
MISUSE OF DRUGS (AMENDMENT) (NO. 2) REGULATIONS 2005
2005 No. 1653
AND
THE MISUSE OF DRUGS (DESIGNATION) (AMENDMENT) ORDER 2005
2005 No. 1652
1. This explanatory memorandum has been prepared by the Home Office and is
laid before Parliament by Command of Her Majesty.
2. Description
2.1 Section 21 of the Drugs Act 2005 amends the Misuse of Drugs Act
1971 so that any fungus containing the controlled drug psilocin or an ester of
psilocin – commonly known as magic mushrooms – is also a controlled drug.
It is now an offence to import, export, produce, supply, possess or possess
with intent to supply magic mushrooms whatever form they are in, whether
prepared or fresh.
2.2 The Misuse of Drugs (Amendment) (No. 2) Regulations 2005 amend
the Misuse of Drugs Regulations 2001 and ensure that magic mushrooms are
excepted from the offence of possession in four scenarios:
2.3 First, where the magic mushrooms are growing uncultivated. This
ensures that persons who have magic mushrooms growing on their land
uncultivated will not be acting unlawfully by possessing them in this way.
(Should those persons intend to supply those magic mushrooms they will,
however, be committing the offence of possession with intent to supply
controlled drugs.)
2.4 Second, where the magic mushrooms are picked by a person, who
possesses them lawfully, in order to deliver them as soon as is reasonably
practicable into the custody of a person lawfully entitled to take custody of
them and they remain in that person’s possession for and in accordance with
that objective. This ensures that landowners can pick magic mushrooms
growing on their land for the purpose of delivery and, so long as they hold the
mushrooms for and in accordance with that purpose, will not be acting
unlawfully.
2.5 Third, where the magic mushrooms are picked in order to either
destroy them as soon as is reasonably practicable (purpose of destruction) or
deliver them as soon as is reasonably practicable to a person lawfully entitled
to take custody of them (purpose of delivery) and then held for the purpose of
destruction, whether by the person who picked them or by another person.
2.6 Fourth, where the magic mushrooms are picked in order to destroy
them as soon as is reasonably practicable (purpose of destruction) and then
held, whether by the person who picked them or by another person, for the
purpose of delivering them as soon as is reasonably practicable to a person
lawfully entitled to take custody of them (purpose of delivery).
2.7 Scenarios three and four enable any person to (a) pick mushrooms for
the purpose of delivery or destruction and to hold them or pass them to another
person to hold for and in accordance with the purpose of destruction or (b)
pick mushrooms for the purpose of destruction and to hold them or pass them
to another person to hold for and in accordance with the purpose of delivery.
In this way, there is scope for these persons to change their mind as to whether
they are going to destroy or deliver the mushrooms. There is also scope for
the person who picked the mushrooms to pass the mushrooms to another
person and for such persons to pass the mushrooms on (covering farm
workers, for example) so long as the mushrooms are held for and in
accordance with the relevant purpose (delivery or destruction).
2.8 These Regulations do not cover a person who takes possession of (i.e.
was not already in lawful possession of) mushrooms for the purpose of
delivery and who holds the mushrooms for and in accordance with that
purpose. This is because a defence in section 5(4)(b) of the 1971 Act already
covers such persons. When this existing defence is combined with the
exceptions provided for in these Regulations, it means that any person can
pick magic mushrooms for either the purpose of delivery or destruction, or
acquire magic mushrooms picked for such purposes, so long as he holds them
for and in accordance with either of those purposes.
2.9 These Regulations also insert a fungus containing psilocin or an ester
of psilocin into Schedule 1 to the 2001 Regulations, enabling the Secretary of
State to issue a licence under those Regulations in respect of the production,
supply, offer to supply or possession of those fungi (normally for research
purposes).
2.10 The Misuse of Drugs (Designation) (Amendment) Order 2005 is
necessary as there is no recognised medicinal use for magic mushrooms. It
has the effect of preventing section 7(3) of the Misuse of Drugs Act 1971
applying to magic mushrooms and so preventing certain professions which
usually work with controlled drugs from prescribing, administering,
manufacturing, compounding, supplying and possessing magic mushrooms.
3. Matters of special interest to the Joint Committee on Statutory
Instruments
3.1 None.
4. Legislative Background
4.1 The Misuse of Drugs Act 1971 controlled the chemicals inside
the mushrooms - psilocin and psilocybin (an ester of psilocin) - as Class A
rather than the mushrooms themselves. Magic mushrooms were only classified
as a Class A drug under that Act if they constituted a preparation or a product
containing psilocin or an ester of psilocin. It is a matter of legal interpretation
what constitutes a preparation or a product and this had led to uncertainty.
Section 21 of the Drugs Act 2005 amends the 1971 Act to provide that all
magic mushrooms, regardless of whether they constitute a preparation or a
product, constitute a Class A drug.
4.2 During the Commons Committee stage of the Drugs Bill, the
Government undertook to consider bringing in regulations dealing with
exceptions from the offence of possession of magic mushrooms in certain
circumstances; and agreed that what is now section 21 of the Drugs Act 2005
would not be brought into force until such regulations were also in force (3
February 2005, House of Commons Official Report, column 184). Section
5(4)(b) of the Misuse of Drugs Act 1971 already provides a defence to the
offence of possession of a controlled drug where a person shows that they took
possession of that drug for the purpose of delivering it into the custody of a
person lawfully entitled to take custody of it and that as soon as possible after
taking possession of it they took all such steps as were reasonably open to
them to deliver it into the custody of such a person.
4.3 Controlled drugs which have no recognised medicinal use are
designated under section 7(4) of the Misuse of Drugs Act 1971. This has the
effect of removing the requirement for the Secretary of State to permit certain
professionals to work with those drugs. Magic mushrooms fall within this
category and are, accordingly, following consultation with the Advisory
Council on the Misuse of Drugs, designated under that provision.
5. Extent
5.1 These instruments apply to all of the United Kingdom.
6. European Convention on Human Rights
6.1 Not applicable.
7. Policy background
7.1 The Government has acted to stop the commercial importation and
supply of magic mushrooms by clarifying the misuse of drugs legislation and
making clear that it will not allow the open sale of fresh magic mushrooms.
7.2 Magic mushrooms are a powerful hallucinogen and can cause real
harm – especially to vulnerable people and those with mental health problems.
Some suppliers have used an apparent loophole in the law to import fresh
magic mushrooms in large amounts and this has attracted media attention.
Estimates indicate that over 400 establishments in the U.K. are selling magic
mushrooms and they are mostly supplied with imports. HM Revenue and
Customs estimate the imports for 2004 to be between 8-16,000 kgs. The
British Crime Survey shows that about 180,000 16-59 year olds took
mushrooms in 2002/3. The survey for 2003/4 indicates an increase of over
40% in one year.
7.3 It was already an offence to import, export, supply or possess dried
magic mushrooms as these mushrooms constituted a preparation containing
psilocin or an ester or psilocin. Section 21 of the Drugs Act 2005 closed the
loophole by extending the offence provisions to all magic mushrooms,
whatever form the mushrooms are in.
7.4 For the offence provision in respect of possession of magic mushrooms
to operate satisfactorily it is necessary to make clear under what circumstances
it is not unlawful to possess magic mushrooms. The Regulations fulfil this
purpose.
7.5 Designated drugs are those which have no recognised therapeutic use.
Nor can they be lawfully be prescribed, administered, produced, compounded
or supplied except for the purposes of research or other special purposes or
under licence issued by the Secretary of State. Psilocin and psilocybin are
hallucinogens which work on the same pharmacological principle as LSD. The
United Nations Convention on Psychotropic Substances 1971 places psilocin
in Schedule 1, the highest level of control. It has long been designated as
having no recognised medicinal use. The Order extends the designation as
there is no recognised medicinal use for magic mushrooms.
8. Impact
8.1 A Regulatory Impact Assessment has not been prepared for these
instruments as they have no impact on business, charities or voluntary bodies.
8.2 These instruments have no impact on the public sector as they maintain
the status quo where appropriate.
9. Contact
Jeremy Sare at the Home Office, tel: 020 7035 0461 or e-mail:
Jeremy.Sare@homeoffice.gsi.gov.uk, can answer any queries regarding these
instruments.
Still not giving up hope of a big load though. The philosophers arent the strongest, but would be cool if you can get them shipped.
