Legal challenges to Misuse of Drugs Act
& Clause 21 of Drugs Bill
.

 

Judicial review:

  • Introduction:
    The judicial review procedure allows the courts to supervise how Ministers, Government Departments or other public bodies exercise their powers or carry out their duties. “Administrative” or “public” law governs the acts of public bodies and the exercise of public functions. Public bodies include “non-departmental public bodies”. The Home Office is a Government Department, the Advisory Council on the Misuse of Drugs is a “non-departmental public bodies” so judicial review of their decisions is possible.
    The following tests limit the lawful use of executive power:
    - legality (e.g. acting within the scope of any powers and for a proper purpose);
    - procedural fairness;
    - unreasonableness;
    - compatibility with rights in the Human Rights Act and EC law.

Our view is:
- legality: the Misuse of Drugs Act (MDA) concerns the prevention of the misuse of drugs, not the use of drugs. Misuse is harmful use - there is no necessity to prohibit reasonably safe use under the MDA. The MDA contains no exclusion clause for traditional harmful drugs, alcohol and tobacco - there is no indication that tradition should be a factor in determining drug control. The MDA does not mention UN drug Conventions. The Advisory Council on the Misuse of Drugs (ACMD) and Home Office (HO) exceed their power by targeting all trade and consumption of non-traditional drugs and fail to exercise adequate power in relation to traditional drugs.
- fairness: Decision-makers show actual bias in their treatment of traditional and non-traditional drugs. ACMD and HO assume drug consumers have a right to informed choice with traditional drugs but not with non-traditional drugs. HO magic mushroom RIA shows actual bias in assessing costs and benefits of prohibition and licensing. ACMD and HO decisions about non-traditional drugs ignore Government guidance on the provision and use of scientific advice, the assessment of risk, the management of risks to the public, the evaluation of regulatory options and the principles of good regulation. Decision-makers are likely to consume traditional drugs but not non-traditional drugs, bias by association.
- unreasonableness: it is irrational - to prohibit drugs because they are 'not harmless'; to prohibit drugs because of 'concerns' about harm; to prohibit drugs to end legal uncertainty when licensing would do; to exclude harmful traditional drugs from legislation aiming to prevent harmful drug use; to prohibit safer drugs than those legally available; for ACMD's 'independent' scientific advice to depend on Government policy.
- Human rights:
see below.
- EC law: European Community Treaty Article 28 prohibits restrictions on the free movement of goods between member states except on the grounds of protection of health, in so far as they do not constitute either a means of arbitrary discrimination or a disguised restriction on trade between member states. There is both arbitrary discrimination and disguised restriction of trade (non-traditional drugs compete with traditional drugs that EC governments profit from).

Human Rights Act (European Convention of Human Rights):

  • Introduction:
    The Convention is intended to secure a fair balance between the general interest of society and the protection of the individual’s fundamental rights. The Convention includes the following rights and freedoms relevant to magic mushroom prohibition:
  • right to peaceful enjoyment of possessions and protection of property (Article 1, Protocol 1)
  • right to respect for private life and home (Article 8)
  • prohibition of discrimination in the enjoyment of the Convention rights (Article 14)
  • freedom from degrading treatment (Article 3)
  • freedom from punishment without law (Article 7)
  • prohibition of abuse of rights (Article 17)
  • limitation on use of restrictions on rights (Article 18)

Our view is that Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) and Article 8 (right to private life & home) are applied to drug consumers and traders with discrimination based on tradition rather than harm contrary to Article 14 (freedom from discrimination). Magic mushroom consumers and traders will be threatened with imprisonment for activities permitted for more harmful drugs like alcohol and tobacco. The severity of this discrimination may amount to a breach of Article 3 (freedom from degrading treatment) since consumers and traders will then be demonised. Magic mushroom suppliers prosecuted currently have had Article 7 (unambiguous laws) rights breached (see Recorder Miskin's abuse of process judgement). Denial of equal rights on the basis of tradition contradicts Article 17 & 18 (abuse of rights & limited restriction of rights).

Abuse of process judgement:

European legal challenge to magic mushroom prohibition:

Ananda De Sjamaan: "I have won the courtcase on magic mushrooms, but not to my satisfaction. The vice president of the INCB (International Narcotics Control Board of the United Nations) has declared the folowing under oath(in a nutshell):

  • Magic mushrooms do not fall under the 1971 convention on psychotropic drugs of the UN. They are not listed and do not fall under the control of the list. Nor fresh nor dried. Not even extracts of it. The UN has specificly not listed psilocybe mushrooms on the list.
  • You can not make an illegal preparation of something which is not controlled. i.e. Psilocin and psilocybin are controlled. As long as you do not seperate these substances from the mushroom, no illegal substance can be made from psilocybe mushrooms. Dried mushrooms, packed mushrooms, etc are not on the list. If the lawmakers would have reasoned otherwise there would be no need to place cocaine and coca leaf on the list of controlled substances.Placing cocaine there would have been enough. An even better example is heroin, opium and a specific part of the papaver plant I do not know the english name of. All tree are listed seperate with reason. No other part of these plants are controlled.
  • Governments that think the UN treaty on psychotropic drugs give need to control psilocybe mushrooms are mistaken.
  • The CAM study is still accurate. New data did not lead to think psilocybe mushrooms are harmful to public health. The new study on psilocin by the UK Heffter institute & Zurich psychiatric hospital in fact added to fact that psilocybe are not harmful to public health. The INCB sees no reason to advise to control psilocybe mushrooms.

since we won, the court feels no need to type out the testimonial of the vice-president of the INCB. But we need it desperate for the UK courtcases. My lawyer is trying hard to get this fixed. If it won't work, I'll try to get the Vice-president to put his views on paper. Either way. I'll let it be translated and then legalised by a authorised translator and get it to you".

Magic mushroom prohibition documents:

Drugs Bill, Clause 21; Explanatory Notes; Research Paper 05/07; Regulatory Impact Assessment; Human rights assessment
Our letter against Clause 21 to Standing Committee members

Our correspondence with Government:

Drug discrimination:
Home Office, ACMD secretariat, Chief Scientific Advisers -
summary, all
Magic mushroom prohibition:
Our email to Cabinet Office Regulatory Impact Unit outlining the Home Office's lack of recorded reasons for prohibiting magic mushrooms but not more harmful drugs like alcohol and tobacco.

ACMD role in mushroom prohibition: classification v clarification:

Clause 21 does not prohibit magic mushrooms but instead it proposes to amend the Misuse of Drugs Act. Prohibition only occurs once the MDA is modified. The inclusion of any substance in the MDA requires a modification Order. This first requires the approval of the ACMD, then approval of both the Commons and Lords. These are legal requirements of the MDA, Section 2, paras 2 & 5. Home Office may be trying to circumvent this process by claiming that Clause 21 does not reclassify magic mushrooms but only clarifies the law. They seem to argue that prohibiting mushrooms in the same way as their consituent drug, psilocybin, is mere clarification, not reclassification. But case law mentioned by Recorder Miskin shows that the law clearly distinguishes the two and that the law must be modified if it is to apply to mushrooms. The ACMD Secretariat have said "The ACMD (through its Technical Committee) has called for evidence in order for it to consider the harmfulness of magic mushrooms".
It is not clear what is going on here. Will there be a modification order that classifies currently uncontrolled mushrooms as controlled under the MDA? If not the decision to include previously legal magic mushrooms in the MDA may be illegal.

Government guidelines on conscious, evidence-based decision-making:

Our guide to Government guidelines on ACMD provision and HO use of scientific advice, the management of risks to the public, better regulation, including much background information.

Compromise objective - the reframing of current drugs advice & policy:

Aim: for ACMD to provide a transparent explanation why non-traditional drugs are prohibited while equally harmful traditional drugs are licensed.
How they should explain it: modern risk assessments take account not only of actual risk but also perceived risk, fear of risk, risk tolerance. Risk tolerance for familiar traditional drugs is high while that for unfamiliar non-traditional drugs is low. Regulations are proportionate to perceived risk. As a result a Precautionary Principle is applied to non-traditional drugs, prohibiting production and supply. This is consistent with UN drug Conventions. Guidance on the application of the Precautionary Principle requires continuous review in the light of new evidence; such new evidence includes changes in public risk perception.
Reasoning: this reframing of current advice would show that drugs policy is not based on scientific evidence but on public opinion and UN drug Conventions. Government's drugs policy should then be reframed in line with ACMD's new advice framework. Then rational debate can begin.

ACMD risk assessment methodology

It is 5 years since ACMD began to review their risk assessment framework during which time cannabis was reclassified. The methodology for assessing risk remains unpublished.

History of decision-making behind the Misuse of Drugs Act:

The Guardian: "The 1970 cabinet minutes also confirm that the original decision to classify illegal drugs into three classes, A, B and C, was based on political expediency rather than any scientific assessment of their harm".
Race & drugs: "The outright rejection by parliament of the Jackson amendment that nicotine should be included in the new bill was a clear indication that the distinctions being made were social, political and economic. The central paradox of the Misuse of Drugs Act is that the possession of demonstrably dangerous drugs like alcohol and nicotine continue to be legal and within the law, whilst the possession of other substances, (cocaine, cannabis and opium based preparations) remained illegal. A casual consideration of the thinking that underpins the Act might lead to the assumption that the legal drugs remain legal because they are drugs predominantly regarded as white drugs and the illegal drugs are viewed as traditionally used by black people. Thus within the legislative framework and the manner of its enforcement white people and their lifestyles have always taken precedence.
…There is nothing within the Misuse of Drugs Act that could lead, in itself, to a racist outcome. It is rather what is not said by the Act and the circumstances within which the Act was constructed and operates that give rise to concern.
…The Act is thus a legislative vehicle based on prejudice and without proper safeguards".

United Nations Drug Conventions and discrimination:

UN agrees people may ignore the fact that familiar traditional drugs are drugs. WHO provides the UN with scientific advice as the ACMD do to the Home Office. WHO's risk assessments of drugs was biased by familiarity when advising the UN about the first UN drug Conventions. WHO accepts now that legal traditional drugs are more harmful than illegal non-traditional drugs. UN is not scientific. The Home Affairs Committee advised Government to seek revision of UN drug Conventions. UN drug Conventions were designed to be a template for prohibiting weapons of mass destruction.

Useful quotes