Dried Mescaline Cacti (And Other Plants) - UK Law

[sergei77]

DISCLAIMER: Please do not take the following as legal advice, I am not a lawyer. Although I have consulted lawyers and legal experts on this subject, these are simply my personal views, thoughts and interpretations backed by my own extensive research and UK Home Office enquiries. I make no claim as to the accuracy or legal validity of any of the text which follows, neither do I accept any liability for any actions taken as a consequence of reading this information. Please always seek competent legal advice as appropriate before embarking on any particular course of action or if you need legal assistance in any matter.

It appears that the UK government is starting to crack down on "legal highs". There have been a few reports recently of busts regarding dried Mescaline cacti and DMT containing plants. I think anyone affected by this, or potentially affected, would benefit from reading what follows.

Mescaline containing cacti such as the Peyote cactus (Lophophora williamsii), the San Pedro cactus (Trichocereus pachanoi) and the Peruvian Torch cactus (Trichocereus peruvianus) as well as other plants such as Psychotria viridis and Mimosa hostilis (the DMT containing plants used in the Ayahuasca brew) are currently commonly available and openly sold in the UK over the Internet and in conventional "head shops". They are sometimes sold as live plants or cuttings but more commonly as dried, powdered and packaged products. They are normally sold "not for human consumption" as "herbarium specimens", "potpourri" or "incense" although some sites explicitly sell them as "legal highs" with instructions for preparation. Those involved are not clandestine underground operations but large and legitimate tax-paying companies conducting their business openly as indicated in this Guardian article:

http://society.guardian.co.uk/drugsandalcohol/story/0,8150,1682325,00.html.

So far there have been no convictions in the UK regarding these "legal highs" however reliable sources have indicated that there are at least two prosecutions currently under way concerning plant materials which contain "Class A" substances.

Although Mescaline, DMT and a whole host of other substances are explicitly scheduled in the UK Misuse of Drugs Act 1971 (MDA), there is no explicit reference to cacti or any other plant or fungus containing controlled substances other than the cannabis plant, coca leaf, opium poppy, poppy-straw and concentrate of poppy-straw and, after a recent amendment which came into effect in July 2005, a "fungus (of any kind) which contains psilocin or an ester of psilocin" (i.e. "magic mushrooms").

The MDA lists a number of scheduled substances divided into Classes A, B and C according to their alleged danger and abuse potential, followed by the qualifier "Any preparation or other product containing a substance or product for the time being specified in any of paragraphs 1". This means that not only are the substances listed scheduled but also any "preparation" or "product" containing these substances. However, no explanation is given as to what exactly constitutes or may constitute a "preparation" or "product" in the MDA itself. Obviously these words are open to interpretation, which is the reason for the current state of confusion as to what exactly is or isn't legal.

Furthermore lacking any legal precedents (since the terms "product" and "preparation" have only been applied by the courts to "magic mushrooms" and not to any other plant or fungus), there is no clear indication as to how the courts would interpret these terms with regards to a whole host of other plants or fungi which are not explicitly scheduled but, similarly to "magic mushrooms", contain controlled substances.

Essentially what the current debate seems be centering on is whether drying a plant containing a controlled substance results in a "preparation" or "product" of the controlled substance contained within it as intended (but crucially, not defined) by the MDA. Some believe that this is the case since in cases concerning "magic mushrooms" (prior to the mushrooms themselves being scheduled) the courts ruled that drying or powdering the mushrooms (so that "they have ceased to be in their natural state and have been in some way altered by the hand of man") constituted a "preparation" of Psilocybin and Psilocin (Regina v Stevens) and that packaging and freezing the mushrooms constituted a "product" (Regina v Hodder).

However, in reality things are now much more complicated, since the courts and authorities such as the Home Office have made conflicting interpretations and given advice which is fundamentally contradictory. Indeed it could be argued that interpreting dried "magic mushrooms" as a "preparation" or "product" (the test case dating back to 1981) was a mistake in the first place in light of information which has since come to light and other developments which have taken place since. It could also be reasonably argued that the same definition of "preparation" or "product" should not be applied equally to all plants containing controlled substances, therefore the simple and narrow interpretation used for "magic mushrooms" is no longer adequate.

For a start, here are the Home Office views on this matter regarding dried Mescaline containing cacti and DMT containing Ayahuasca plants specifically (please ignore the first question/answer in the first letter as it is not relevant):

Home Office Letter - Richard Mullins

Home Office Letter - Chris Edwards

According to the first letter by the Home Office Drugs Directorate spokesman Richard Mullins:

A bona fide trader selling dried material and samples of cacti etc. for purely botanical / horticultural / herbarium specimen’s purposes has nothing to fear, notwithstanding the fact that the cacti etc. contain a controlled drug

(...)

In itself drying for purely botanical / horticultural / herbarium purposes – “mere preservation” – does not in law amount to preparation for the production of a controlled drug.

The second letter by Chris Edwards states:

There is a gray area over whether these plants become a preparation once they are dried. I am aware that pot-pourri cactus plants are quite popular and have previously had enquiries about whether it is lawful to sell such items. You are right in saying that most traders specify that such items are not for human consumption and I believe this is probably the reason for the status quo as the onus is then passed onto the customer as to what he or she then does with the purchase.

Regarding Ayahuasca plants, it goes on to state:

Ayahuasca and Yage are both drinks prepared from plants. Again, it is my understanding that it is only when it becomes a preparation that it becomes an illicit brew. The plants themselves contain Class A substances which then have to be extracted to make the liquid.

Both letters can be interpreted in a way that would suggest that it is not the mere act of drying that constitutes a "preparation" in itself, as commonly believed or as seemed to be the case with "magic mushrooms". Neither letter categorically states that drying in itself constitutes a "preparation" or an act of "production". What both seem to imply is that "intention" for human consumption or "context" is the deciding factor, rather than any particular rudimentary process which is applied to the plant, such as drying.

However there is a glaring flaw in this approach. Consuming a scheduled substance is not in itself a crime. "Magic mushrooms" were until recently legal in the UK in their "fresh state". They were packaged, weighed, dosed and sold explicitly for human consumption.

A Home Office letter in circulation in 2002, prior to the law on "magic mushrooms" being changed, stated:

In relation to your specific queries our view is as follows: queries 1 and 2 - it is not illegal to grow and pick psilocybin mushrooms and eat them fresh. Queries 3 and 4 - it is not illegal to sell or give away a growing kit as the mushrooms themselves are not controlled.
Query 5 - it is not illegal to sell or give away a freshly picked mushroom, provided that it has not been prepared in any way. In the light of the earlier court cases, this is query 6, it would be for the courts to determine whether chilling mushrooms in a fridge constituted altering them in any way.

A court consequently upheld these views in Regina v Dennis Mardle & Colin Evans and additionally ruled that packaging and chilling the mushrooms did not constitute a "preparation" or "product". The Judge stated "I take the view, the Home Office circular which deals with the cooling and chilling point, is a fudge, to put not too fine a point on it. They are being ultra cautious maybe, but I do not think the language is very happy, because everybody is entitled to know exactly what is and what is not a criminal offence".

So, according to the above, possessing, selling AND consuming a plant or fungus which contains a controlled substance is not illegal provided that the plant or fungus material is not considered a "preparation". Now if mere "intention" to consume made the plant or fungus a "preparation" then the above court ruling would not have been possible and it would make no sense to uphold that consuming a plant that contains a controlled substance is legal if the mere intention to consume it made it into an illegal "preparation". It's a "chicken and egg" situation.

Note that although "magic mushrooms" are now explicitly scheduled, regardless of state, this does not affect cacti or any other plant not explicitly mentioned in the MDA. From this we can infer that, at a minimum, selling the fresh cacti explicitly for human consumption, packaged, dosed, chilled, whatever does not constitute a "preparation" or "product".

Since the dried cactus is not a "preparation" or "product" either (according to Richard Mullins' Home Office letter) one could further infer that possessing it, selling it (for human consumption) AND consuming it, is not illegal. If it were, it would have to be a "preparation" or "product" to start with. And to say that "intention" makes it a "preparation" or "product" would be inconsistent with what the courts have already upheld regarding fresh "magic mushrooms", as explained above.

So what exactly constitutes a "preparation" or "product" as intended by the MDA? If it is not the mere act of drying and it is not "intention" for human consumption, is it something that's dependent on a process or procedure that's applied to the plant material (some form of extraction or separation of the controlled substance) or is it all about "context"? Is it a combination of factors? And, most importantly, how is the general public to know what the exact criteria is since this is not published or clearly defined anywhere?

The best we can do, apart from making interpretations from the views of the UK courts and authorities such as the Home Office, which are contradictory and give no conclusive answer, is to look at the interpretation of "preparation" in the UN Convention on Psychotropic Substances to which the UK, and most other European countries are signatory and also to look at how other more or less "common law" countries have interpreted this term, bearing in mind that the MDA was designed to implement the UN Convention on Psychotropic Substances and the term "preparation" appears to have been borrowed directly from the text of the Convention.

The Convention defines the term "preparation" as follows:

"Preparation" means:
1. any solution or mixture, in whatever physical state, containing one or more psychotropic substances, or
2. one or more psychotropic substances in dosage form.

Now 2 obviously doesn't apply to plants since a plant is not a substance. And to define a single species of dried plant as a "solution or mixture" would not make any sense either.

To see some examples of things which would be considered a "preparation" according to the Convention and to get a further understanding of what things might be defined as "preparations" by the Convention in practice, we can look at a section of the Convention entitled "List of Preparations Included in Schedule III". Here we see a list of mixtures of previously isolated substances added to something else (a "base"), for example "Preparations of Diphenoxylate containing, per dosage unit, not more than 2.5 milligrams of diphenoxylate calculated as base and a quantity of atropine sulfate equivalent to at least 1 per cent of the dose of diphenoxylate". There is no reference to plants or plant materials in any form, or to any crude plant based concoction of any kind.

The Commentary on the Convention on Psychotropic Substances notes that while many plant derived chemicals are controlled by the treaty, the plants themselves are not:

The term "synthetic" appears to refer to a psychotropic substance manufactured by a process of full chemical synthesis. One may also assume that the authors of the Vienna Convention intended to apply the term "natural material" to parts of a plant which constitute a psychotropic substance, and the term "natural psychotropic substance" to a substance obtained directly from a plant by some process of manufacturing which was relatively simple, and in any event much simpler than a process of full chemical synthesis.

(...)

Cultivation of plants for the purpose of obtaining psychotropic substances or raw materials for the manufacture of such substances is not "manufacture" in the sense of Article 1, paragraph (i). Many provisions of the Vienna Convention governing psychotropic substances would be unsuitable for application to cultivation. The harvesting of psychotropic substances, i.e. separation of such substances from the plants from which they are obtained, is "manufacture".

(...)

The cultivation of plants from which psychotropic substances are obtained is not controlled by the Vienna Convention. (...) Neither the crown (fruit, mescal button) of the Peyote cactus nor the roots of the plant Mimosa hostilis nor Psilocybe mushrooms themselves are included in Schedule 1, but only their respective principles, mescaline, DMT and psilocine, psilotsin.

As if the above wasn't clear enough, the question of whether the Convention was intended to cover plants (fresh or dried) as well as crude plant decoctions was finally put to rest in a Fax issued by the United Nations International Narcotics Control board in 2001 regarding Ayahuasca plants which stated:

No plants (natural materials) containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.

So what's certain (and one of the few certain things in this whole mess), is that the Convention does not cover dried Mescaline cacti or Ayahuasca plants, fresh or dry, or any simple decoctions derived from such plants. Therefore the UK or any other signatory country is not under any obligation under the terms of the treaty to control these plants in any way, shape or form. This does not mean that the UK is not allowed to legislate beyond the requirements of the Convention, however there is nothing in the MDA to indicate or suggest that this is the case regarding Mescaline cacti and DMT containing plants.

The French courts upheld the following definition of preparation regarding the DMT containing Ayahuasca brew:

• Ayahuasca is not DMT and thus cannot be considered scheduled.
• The sole toxicity of a "product" doesn't allow legal authority (Justice) to consider it scheduled.
• The operation of decoction, infusion, or maceration doesn't permit to obtain a "substance" ["a pure substance"] and is not a "preparation" [in the technical, pharmacological, and legal sense].
• A preparation is a technical operation consisting in having [pure] substances previously at disposal before mixing them with other substances.

The above is consistent with the UN definition of "preparation". The Ayahuasca plants as well as Peyote (but not San Pedro and Peruvian Torch), were consequently explicitly scheduled in France a few months after the above ruling, reflecting the inadequacy of the term "preparation" as applied to plant materials.

An Italian court reached a similar conclusion and the Ayahuasca brew was not deemed a "preparation", despite the fact that it contains DMT, since the levels of DMT contained in the brew are comparable to those contained in the plants used to make the brew, therefore no significant process of isolation or "separation" of the controlled substance had taken place.

So why did the UK deem dried "magic mushrooms" a "preparation" or "product"? In my opinion this was a flawed interpretation by the courts. It used to be said that it was a legal anomaly or "loophole" that fresh "magic mushrooms" were considered legal. I would say that it was a legal anomaly that dried "magic mushrooms" were considered illegal since they were not explicitly referred to in the MDA and are not covered by the UN Convention on Psychotropic Substances. The fact that the law had to be amended to include "magic mushrooms" in any form, specifically to avoid confusion, is an indication that the law was flawed to start with. Applying this law to plants or fungi was a mistake, since if that was its original aim, it did not fulfill it.

Also note that if the legislators wished to prevent the use of other psychoactive plants containing controlled substances they could have included them in the Misuse of Drugs (Amendment) (No. 2) Regulations 2005 together with the "magic mushrooms", however they chose not to do so despite organisations such as Transform pointing out that the confusion would continue and warning that "Clamping down on magic mushrooms would, on principle, necessitate clamping down on other plants that contain Class A substances. These include Peyote and San Pedro cacti (containing mescaline and widely available in garden centres), and fresh/dried poppies and poppy seeds from which opium can easily be extracted (available in garden centres, craft shops and even IKEA)".

The fact that certain plants such as "opium poppy", "poppy-straw" and "concentrate of poppy-straw", "cannabis" and "coca leaf" are referred to explicitly in the MDA is further indication that the terms "preparation" and "product" were not intended to be applied to plants and plant materials otherwise there would be no need to refer to these plants explicitly since they would simply be considered "preparations" or "products" of the separately scheduled controlled substances which they contain.

This is reinforced by Regina v Goodchild where the judge stated the following regarding the case of somebody who was found in possession of a stalk and leaves of the Cannabis plant but was charged with possession of a cannabinol derivative:

Regarded simply from the point of view of language, the matter is in my view put beyond doubt as respect the specific narcotic ingredients found in opium poppies by the inclusion in the list as separate items "opium" and "poppy straw", as well as morphine, the bane, codeine and several other specified alkaloids which are or maybe constituents of opium and of poppy straw. A similar indication of the meaning of references in the Schedule to specific drugs by their scientific names is to be found in the inclusion as separate items of "cocaine" itself and "coca leaf' which contains cocaine and from which cocaine can be extracted. I should conclude, therefore, that prima facie, a reference in Schedule 2 to a specific drug by its scientific name, does not include a reference to any naturally occurring substance of which the specific drug is a constituent but from which it has not yet been separated.

(...)

So prima facie, one would not suppose that possession of natural occurring leaf and stalk of the plant cannabis satifer of which cannabinol derivative THC was an unseparated constituent could be charged under the Act of a cannabinol derivative.

(...)

I would construe the Act in such a way as to avoid this irrational and unjust result, a man should not be gaoled upon an ambiguity, I would allow the appeal and quash the conviction of the appellant for the offence of unlawful possession of a cannabinol derivative.

The above also implies that "separation" of the controlled substance from the plant would be the deciding factor, again consistent with the UN view and the view taken by some other European countries.

In the previously mentioned Regina v Dennis Mardle & Colin Evans "magic mushrooms" case, the Judge stated:

It seems to me and I so decide that this is a case where rightly or wrongly, Parliament has left a gap very much like the case of Regina v Goodchild and it seems to me that that gap ought really to be filled by Parliament and not by decisions of these courts.

(...)

If one is looking at this legislation, it is not enough again with respect, adopting the reasoning of Lord Diplock in Regina v Goodchild for the legislation simply to say that these two drugs [psilocybin and psilocin] are unlawful, but not specifically legislating in respect of these products where they occur naturally. Very much like Regina v Goodchild, it seems to me that if, that is what the legislation intended, that is what they should have provided.

Another variable in the equation is, assuming the terms "preparation" and "product" were intended to apply to all plants and fungi containing controlled substances (which is doubtful), whether they should apply to all plants and fungi equally and in the same way. In my view this would be inappropriate since it would be like saying that the way you prepare a sandwich is the same as the way you prepare a soup. There are a multitude of plants containing controlled substances which are now commercially available which were not commercially available when the MDA was drafted over 35 years ago. The traditional methods of preparation for these plants vary wildly - some are ingested, some are smoked, some are made into brews, some are used as snuffs and so on.

For example, "magic mushrooms" are commonly ingested in their fresh or dry state and a typical dose would be around 1 or 2 grams of dry material. Dried magic mushrooms are as ready for human consumption as they are going to get. Assuming that dried magic mushrooms were deemed a "preparation" for consumption, to then use that logic and say that dried leaves of the DMT containing plant Psychotria viridis are equally a "preparation" for consumption would make no sense, just like it would make no sense to say that 1 or 2 grams of the leaves would constitute a "dose" just because that is the dose for "magic mushrooms". Apart from the fact that one would have to ingest approximately 50 grams of the leaves to reach a threshold dose of DMT, simply eating the dry leaves would have no effect, since DMT is not orally active unless combined with a Monoamine Oxidase Inhibitor (MAOI). The traditional method of preparation of the Ayahuasca brew involves mixing the DMT containing plant with a MAOI containing plant and making a brew which is boiled for several hours, sometimes a whole day in order to reduce it to a manageable amount of liquid. Yopo seeds (Anadenanthera colubrina) also contain DMT. They are normally powdered and consumed as a snuff which enters the bloodstream through the nostrils.

In the case of Mescaline containing cacti, the act of drying should be considered an act of "preservation", as indicated in Richard Mullin's Home Office letter and not "preparation" since it brings the cacti no closer to the "prepared" (meaning "ready") state in which they are usually consumed. Unlike Peyote which are often consumed raw, traditional preparation of San Pedro and Peruvian Torch cacti (which allegedly contain 10 times less Mescaline) involves boiling the plant material for several hours, filtering out the flesh, and consuming the resulting, liquid once it has been reduced to a manageable volume. If anything the dried cacti are one step further away from their final state of readiness for consumption with respect to fresh cacti, since they have to be first rehydrated. Consuming the dried cactus "as is" in sufficient quantity (50 grams or more, according to literature), would be physically impossible - the dried cactus becomes extremely hard and it is doubtful whether it would be digested sufficiently to produce a psychoactive effect unless it was previously rehydrated.

If anything at all could be considered a "preparation" regarding cacti, just as with the Ayahuasca plants, it might be the liquid resulting from a brew (although this would still go further than the UN's position). This appears to be the view expressed in Chris Edwards’ Home Office Letter where he states that "Ayahuasca and Yage are both drinks prepared from plants. Again, it is my understanding that it is only when it becomes a preparation that it becomes an illicit brew. The plants themselves contain Class A substances which then have to be extracted to make the liquid". This statement could also be interpreted as a confirmation that the logic of "dried = preparation" cannot be applied to all plants equally, accounting for differing methods of preparation. Significantly, he also uses the word "extracted" which implies separation of the substance from the plant material.

It has been suggested, when the fresh "magic mushrooms" were legal, that merely chopping them up would make them into a "preparation". Obviously this could not be applied to cacti since the most common method of propagation involves "cuttings". The cactus is cut into pieces and propagated. It is also common for botanical enthusiasts to hold and exchange dried botanical specimens of plants. If the cactus material was considered a "preparation" or "product" simply by virtue of it being dried or divided into pieces, these enthusiasts would suddenly find themselves in possession, or worse, supplying a "preparation" of a Class A drug. The "altered by the hand of man" criteria for determining what is a "preparation", vague as it is, could not be reasonably applied to cacti, otherwise a whole host of legitimate activities would become illegal.

Furthermore, Class A drugs such as DMT, as well as being naturally present in the human brain, are present in hundreds of commonly found plants including a common type of grass known as Reed Canary Grass (Phalaris arundinacea) which is listed as a serious or principle weed in many European countries.

DMT (along with 5-MeO-DMT) has been detected in the traditional Chinese herbal remedy Evodia fruit or Wu Zhu Yu (Evodiae Fructus), a remedy composed of the dried fruits of the Rutaceae Evodia rutaecarpa plant. This plant is commercially available in the UK in Chinese herbal remedy shops and sold in dried and powdered format specifically intended for human consumption. Here are some examples of sites selling this medicinal plant in the UK:

http://www.shulan.uk.com/servlet/ListProducts3?cat=Formulae_Formulae

http://www.shg.me.uk/shop/catalog/product_info.php?cPath=24&products_id=1226&osCsid= 760c390ee49c831806c6bf64047f3c5d

http://www.incensemagic.co.uk/chris/Supp/herbs/chinese/PowderTZ.htm

LSA, also a Class A drug, is present in the seeds of the Morning Glory plant as well as other common household plants. These seeds can be purchased in most "home and gardening" stores in the UK.

It seems obvious form the above that the same narrow criteria for "preparation" used for "magic mushrooms" cannot be applied equally to all plants otherwise all sorts of people, from gardeners to medical practitioners could end up falling foul of this law.

Having looked at various aspects of the argument, the only thing that is clear, is that that there is no agreement either from part of the courts or from part of the authorities in the UK as to what exactly constitutes a "preparation" or "product". And this confusion stems from the fact that these laws were not intended to cover the multitude of plants which are now commercially available which contain controlled substances or which have been discovered to contain controlled substances since the MDA was drafted. Legislators, back in 1971, could not have foreseen the current situation, therefore the current laws which were already inadequate when applied to "magic mushrooms" are now even more inadequate when applied to other plants and fungi.

The bottom line is that it is impossible for an individual to ascertain in advance whether applying a certain process to these plants or consuming them is legal or illegal, and even the courts and authorities cannot provide a clear and consistent definition of what constitutes a "preparation" or "product". This adds another crucial facet to the debate - Article 7 of the Human Rights Act which came into effect in the UK in 2000. This Article states that the law must be clear and ascertainable so that people know in advance whether what they are doing is against the law or not. This Article was also quoted by the judge in Regina v Dennis Mardle & Colin Evans.

So although courts can make interpretations, it would be an infringement of an individual's human rights to convict them based on an unclear and ambiguous law, which seems to be the case here. And since there are no precedents and no clear message being sent by the authorities, Article 7 of the Human Rights Act is especially relevant.

Finally there is the issue of "knowledge of the nature of the substance in possession" which requires that the accused should know not only of the existence of the substance but also that he or she should know that the substance over which he or she has control is in fact a controlled drug. Earlier cases involved the conviction of persons who had no knowledge of the fact that the substance in question was a controlled drug, thus making the possession offences, offences of strict liability. The unacceptability of this state of affairs resulted in the subsequent provisions of the Misuse of Drugs Act 1971, the aim of which were to provide a defense of mistake of fact in such circumstances.

Section 28 of the 1971 Act, which applies to certain named offences provided for by the Act, states in subsection 2 that "… in any proceedings for an offence to which this section applies it shall be a defense for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged".

Presumably a person being charged with possession or supply of a controlled substance by virtue of being in possession of an alleged "preparation" or "product" – plant material containing the substance, could reasonably claim that he or she was not aware that whatever he or she was in possession of constituted a "preparation" or "product", even if a court did deem it a "preparation" or "product" on that instance. The accused could not have possibly known this in advance since the criteria is not clearly defined anywhere and there are no precedents. This is different from "ignorance of the law", which would not be a valid defense.

As a final footnote, there are only two published studies on the Mescaline content of the Peruvian Torch cactus one of which places the content at 0.817% per dried weight and the other 0% (!), so even the assertion that this cactus contains Mescaline is, at this stage, speculative (although it is certainly possible, if not likely). The fact that the cactus has been reported to be psychoactive does not in itself mean for definite that it contains Mescaline, since there are a number of cacti such as Lopophora diffusa which are reportedly psychoactive but do not contain Mescaline.

I hope that this information is of help to those who might need it!

Reputation Comments on this post:

	great post.
	Excellent post.
	excellent research. keep on
	An exellent first post. Welcome to the forum
	very in depth info
	great post
	Excellent and very informative post. Many thanks.
	Couldn't approve more - sterling work sir!
	For pointing me in the right direction, fellow psychedelic war lord ;)

[Alfa]

Originally Posted by sergei77

I hope that this information is of help to those who might need it!

I am most certain it is. Excellent points. You have been digging deep.

[radiometer]

Thank you very much for posting this.

[sergei77]

You're welcome. I have made some corrections and fine tuning, one of the links to the Home Office letters was wrong but it's all fine now.

If anyone else has made any enquiries or is having problems with the law in the UK I would be interested to hear.

Feel free to point out any errors in my text.

[Paracelsus]

Excellent post. Obviously it took a long time to dig up all that information. Congrats

Originally Posted by sergei77

Please do not take the following as legal advice, I am not a lawyer.

You could be one Most drug lawyers don't know nearly as much as you do about this subject

[sergei77]

Originally Posted by Paracelsus

You could be one Most drug lawyers don't know nearly as much as you do about this subject

They wouldn't, simply because this has never been tested in the courts. As they say... necessity is the mother of all invention.

interesting article...the classification system is a joke in the UK...alcohol should be classified!

[Paracelsus]

Originally Posted by badgermeat

interesting article...the classification system is a joke in the UK...alcohol should be classified!

If the heads of the state would actually think objective/impartial/neutral, ethanol would be schedule 1, while weed and most psychedelics would be unscheduled. But thinking is pretty hard these times. Especially if one is a judge and has to run to the bathroom to smoke a joint before reviewing the 20-year-sentence on the 16-year-old kid who made a 20$ weed deal...

Read this: http://www.drugs-forum.com/forum/showthread.php?t=23858

damn hypocrites.

[psyche]

Great post. You seem to have already earned quite a rep points after just a couple of posts. Hope they keep on the direction, maybe one day we see another country with a relatively realistic attitude towards drugs, though I don't know much about recent political development there to ground this wish on. However, I wouldn't be surprised to see couple of sensationalized accidents with drugs flushing my hopes down the toilet.

[Paracelsus]

Originally Posted by psyche

I wouldn't be surprised to see couple of sensationalized accidents with drugs flushing my hopes down the toilet.

You shouldn't be surprized. Faked "studies" and those sensationalized accidents with drugs are everything on what they have built their legislation on. They need "drug-motivated" murders, ODs, and a dead mouse (after receiving a MDMA dose orally - in NaOH solution by the way).

[Alfa]

As a side note:
History has proved over and over again that legal facts alone are not good enough to protect psychoactives from getting banned. Courts are not insensitive to political and media pressure. It is in times like these that the absence of a well coördinated drug organisations network hits where it hurts.

Please review the text and give your opinion about the content.

[sergei77]

Thanks for making this sticky.

Anybody having problems with this area of the law in the UK please get in touch with Richard Parry at BSB Law since he already has extensive knowledge of the current situation:

http://www.bsblaw.co.uk/

Also speak to Niamh Eastwood from Release who is also aware of the situation:

http://www.release.org.uk/

EVERYONE IS ENTITLED TO KNOW WHAT THE LAW IS - WITHOUT AMBIGUITY! Unfortunately we are being denied this right.

[Evil GIR]

Thank you your information is very helpfull and will be used by my solicetor, until i can get that better one.

[Alfa]

You may want to contact BS LAW none the less. (Hint)

[ramjet]

First of all, great job! I doubt many solicitors will ever come accross such rare cases. I know I haven't, and I can safely say you know more about the subject than I do!

A friend of mine at the CPS informs me that they have been instructed that "preparation" means any act performed by a human being (or a purpose built machine created by a human being) that puts a substance into a form ready for consumption.

Of course leaving something out to dry might be considered an omission to act rather than an act.

The thing is, until the government legislates, the courts are going to be unwilling to take any firm action, because of the high level of uncertainty and ambiguity in the current law. You might well get sporadic case law developing, but with clear amiguity and vagueness in the terms "preparation" and "product" I doubt any one judge will be willing to tackle the problem alone and provide a comprehensive case law definition. That would be far too controversial for our media shy judges, who would ideally like a quiet, uneventful, umblemished record (ready for promotion) rather than one marked by maverick law-making tendencies that are bound to be criticised by some. I could be wrong, but I reckon so long as the preparation isn't totally explicit (eg extraction or the creation of mescaline cactus cakes) judges will err on the side of caution.

[sergei77]

Originally Posted by ramjet

First of all, great job!

Thanks!

Originally Posted by ramjet

A friend of mine at the CPS informs me that they have been instructed that "preparation" means any act performed by a human being (or a purpose built machine created by a human being) that puts a substance into a form ready for consumption.

But even that is far too vague, how ready is "ready"?

If I went into B&Q and bought a packet of Morning Glory seeds which contain the Class A drug LSA, would that be a "preparation" since they are effectively "ready" for human consumption (as well as probably meeting the criteria for "product")? What if I make some cactus cuttings to propagate them? You could say they are ready for consumption and the act of making the cutting is an act performed by a human being ("altered by the hand of man"). And how would they account for the legitimate uses for dry cacti such as herbarium specimens and potpourri as well as legitimate uses for other plants containing controlled substances, such as the DMT containing Chinese remedies?

I would also argue that the dry cactus is not "ready" for consumption since it has to be first rehydrated. Drying is an act of "preservation" and not "preparation", as the Home Office letter states. They could say it's all about "intention", but if "intention" is the deciding factor then it shouldn't matter what state the plant is in. This is where they are confusing the issue by implying that it's a process that makes a "preparation" or "product". Nobody understands what that process might be for any particular plant. So they get out of having to explain the unexplainable by bringing in the concept of "intention". But when the fresh "magic mushrooms" were legal, intention to consume them, and the act of consuming them itself was not illegal. In fact consuming a drug of any kind is not a crime. So "intention" doesn't make something a "preparation" or "product" in itself. Neither does packaging, since the fresh "magic mushrooms" were sold packaged and the courts did not consider them a "product".

Even if the courts were to decide that for cacti the act of drying is an act of "preparation", what about the hundreds of other plants which contain controlled substances? The confusion will continue.

It all stems from the fact that these terms "preparation" and "product" were not really designed to be applied to plants, but rather to mixtures of the previously isolated scheduled chemicals. Either the law should be clarified or a position consistent with the UN Convention on Psychotropic Substances should be adopted, where plants and plant materials are not covered. As it is it's a total mess. The consequences for those on the wrong end of this are too serious for the courts to make things up as they go along.

[Alfa]

Yes, an excellent remark IMHO. It is exactly this what is the weakness of the prosecution in cases like this. The UN defines preparation as extracting the illegal substances out of the plants or making a preparation from those pure substances(pills, drinks, etc.)
This is exactly why the prosecution of magic mushrooms failed in december 2004. Prosecuting someone for possessing a legal substance is abuse of the court. The cactus is not defined as a controlled substance. Therefore it can not be a controlled substance. It is my opinion that to strengthen this defence, the INCB should be asked to testify their view on this matter. I am sure they will be willing to do so, if asked in the right way
However if the means for extracting cacti are found this might well be a slam dunk for the prosecution.

It has come to my attention that the UK government has been greatly disturbed by the media attention on legal highs this year and is now discussing the legality of mescaline cacti, kratom, salvia divinorum and piperazines. (Thanks Vlad!) It is more than likely that the recent law enforcement action towards mescaline cactus, is a direct result of these talks. The same approach was taken towards magic mushrooms. Once the UK government decided that it was getting in their face, raids, arrests and prosecutions where made, while the road to confiction was more than shaky to say the least. Meanwhile talks began on changing the law. I hope I am in the wrong here, but it seems pretty simular.

[ramjet]

In all honesty, I don't think the media attention has been all that significant, despite a few articles in national papers. The real issue with mushrooms was the obvious arbitrarity and inconsistency of keeping "prepared" mushrooms illegal and in the "class A" category, while fresh mushrooms remained perfectly legal. Making magic mushrooms entirely legal would raise the question about LSD's illegality and open a can of worms regarding the legal status of drugs in general. Unfrotunately, the government responds to media pressure more than it responds to the actual needs of its electorate and only cares about short term electoral point scoring and cynical political expediency. The government don't give two shits about how much truth there is behind media propaganda and scapegoating. Drugs have an incredibly bad image and are blamed almost exclusively for a breathtaking range of social problems. Individual responsibility is thrown out of the window. The government doesn't care . . . it only cares about image, not reality.

The other thing is, law makers (both legislators and judges) prefer to be as broad as possible, because the narrower the proposition the greater the risk of injustice and the easier it is to find loopholes. Laws do tend to be vague. There are countless references to what the "reasonable person" would do in a certain situation. For example, rather than specify every single instance that can be considered to be an action of self-defence the law simply states that if the reasonable person would have acted in the same way in that cirumstance then it is an act of self defence. Catch alls are always prefered to specific lists. There are of course down sides to this, as demonstrated by the contents of this thread.

I think the Labour government has more to worry about than legal highs. The NHS, immigration, terrorism and major crime will be foremost on its hit list in the next few years.

We desperately need some clarity in the law. At the very least, I hope we get a case law definition of "product" and "preparation". To prosecute people for a crime whose nature is itself not agreed is not only unfair, it's arguably a breach of Article 7 of the Human Rights Act:

"NO PUNISHMENT WITHOUT LAW . . . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed."

[Alfa]

The massive quantities of magic mushrooms which where imported into the UK, sold on street markets and the media attention then, had a motivative impact to ban magic mushrooms.
How many calls from worried parents do you think the UK government has received after the media broadcasted and wrote sensational stories about chemical drugs simular to meth and ecstasy legally available in UK stores? You can be sure that the cheap piperazine pills, produced to look just like ecstasy tablets, being sold across the UK have put the guys at the top in an awkward position.

Originally Posted by ramjet

We desperately need some clarity in the law.

Yes, but not the kind of clarity that I suspect is coming.

[Nagognog2]

I like the idea of prosecuting someone for a non-criminal act being considered an "Abuse of Court." In the USA it would likely draw what is called a Null Pros(ecution) from the Court if (it would be) it were requested by the prosecution. This would clear the way to change a word or two in the original complaint so as to prosecute the person as if it were the first time they were brought before the Court on the now nearly identical charges. It would also give the prosecution the ability to refine it's case and view the defence's plans for arguing said case.

In simple words - they will keep attacking until they win, and you lose. With utter impunity.

[ramjet]

A fair point, but then I think the guys at the top are pretty used to being in awkward position's *coughIraqcough*.

From what I've seen in the papers and on the TV, mushrooms received much wider coverage. Then again, the cannabis debate has been brought into the spotlight once more thank's to FRANK's latest campaign of prejudice and misinformation.

The government's used to vexatious complainants and paranoid parents. It's been put under a lot of pressure to reclassify cannabis, but it hasn't. I think it would rather leave the whole drugs debate alone now and concentrate on immigration, violent crime, terrorism, political correctness etc. These topics are almost always on the front page of national newspapers and attract the greatest criticism. Of course, this may well change.

It's also down to the retailers to be sensible when marketing products. Shop X (whoops, sorry for the slip up), which SWIM uses, only sells to over 18s, and is very strict about this. It also gives detailed advice upon every purchace.

[Alfa]

At least Iraq brings oil to Bush. Headshops spread drugs. They are a hell of a lot easier to fuck over than Bushwacka.

Seems like I am hijacking this thread. Let's get back on the topic of mescaline cactus legal issues.

[sergei77]

Originally Posted by Alfa

It is my opinion that to strengthen this defence, the INCB should be asked to testify their view on this matter. I am sure they will be willing to do so, if asked in the right way

Well, I think their Fax and the Commentary leaves little doubt as to their position in this matter. The Convention does not control plants and plant materials (fresh or dried) or even any rudimentary plant derived concoctions such as Ayahuasca or a brew made from Mescaline containing cacti. However extraction of the controlled substance ("harvesting") in a way that separates the substance from the plant material would clearly be covered.

The big question is how much weight the UK courts will place on the Convention in this case. They are often quick to point to their obligations under the Convention in order to strengthen a prosecution, for example in Regina v Taylor (where a Rastafarian unsuccessfully attempted to use the Religious Freedom Restoration Act to defend his right to use Cannabis as a sacrament) the judge emphasised the obligations imposed by the Convention. However I wonder how well they will respond to a suggestion that they should not exceed their obligations under the Convention without first explicitly legislating to that effect (if that is their intention).

[Alfa]

Originally Posted by sergei77

The big question is how much weight the UK courts will place on the Convention in this case.

Exactly my point. The courts tend to ignore the conventions when it suits their need. They would not have much room to ignore the treaties or even details of it when the INCB is directly involved in the court session. In a normal court session the judges are master of the court. So to speak. The INCB is a higher authorithy than the judges are. This will have an unusual effect on the course of the case.

[Evil GIR]

However if the means for extracting cacti are found this might well be a slam dunk for the prosecution.

Hey dont say that, having the chemicals could just be cirumstancial evidence and I think its up to the police to prove what the convicted person was going to do with them.

Especialy because there are so many legal uses for the equipment involved, though i think if they found a extraction tec on the persons computer or any other evidence to suggest what was going to take place then that would be diffrent. To prosecute they have to be 100% sure without any kind of doubt.

Though through swim we will find out soon, 5 Dec !!!!