Drugs Act 2005

From CrimeLine from Andrew Keogh

Aims of Drugs Act

Increase the effectiveness of the Drug Interventions Programme by getting more offenders into treatment.
Introduce a new civil order that will run alongside ASBOs for adults to tackle drug related anti-social behaviour.
Enhance Police and Court powers against drug offenders.
Clarify existing legislation in respect of magic mushrooms.

Content of Drugs Act

Test drug offenders on arrest, rather than on charge.
Require a person with a positive test to undergo an assessment by a drugs worker.
Provide for an -intervention order- to be attached to ASBOs issued to adults whose anti-social behaviour is drug related, requiring them to attend drug counselling.
Allow a court to remand in police custody for up to a further 192 hours those who swallow drugs in secure packages, to increase the likelihood of the evidence being recovered.
Allow a court or jury to draw adverse inference where a person refuses without good cause to consent to an intimate body search, x-ray or ultrasound scan.
Create a new presumption of intent to supply where a defendant is found to be in possession of a certain quantity of controlled drugs.
Require courts to take account of aggravating factors - such as dealing near a school when sentencing.
Amend the Anti-Social Behaviour Act 2003 to give police the power to enter premises, such as a crack house, to issue a closure notice.
Amend the Misuse of Drugs Act 1971, making fungi containing the drugs Psilocin or Psilocybin (-magic mushroom') a class A drug.
Repeal section 38 of the Criminal Justice and Police Act 2001.

PART 1: SUPPLY OF CONTROLLED DRUGS

Section 1: Aggravated supply of controlled drug

Section, subsection (1), inserts a new section 4A into the Misuse of Drugs Act 1971 and stipulates the circumstances which a court must treat as aggravating factors in respect of the offence of supply of a controlled drug. New section 4A(2) requires a court to treat either or both of two conditions as aggravating factors and, where either condition is met, to state that the offence is so aggravated.

New section 4A(3), together with new section 4A(5), provides that the first condition is met when a person supplies a controlled drug on or in the vicinity of school premises when they are being used by children and young people and within one hour of any such time. New section 4A(4), together with new section 4A(6), provides that the second condition is met when a person causes or permits a child or young person to deliver a controlled drug to a third person or to deliver a drug related consideration to himself or a third person in connection with the offence of supply of a controlled drug.

New section 4A(7) defines a drug related consideration as a consideration of any kind, thus encompassing any form of payment or reward, be it in cash, goods or services.

New section 4A(8) defines 'school premises' and 'school' for the purposes of this provision

Subsection (2) provides that new section 4A does not apply to any offence committed before it comes into force.

Section 2: Proof of intention to supply a controlled drug

Section 2 It is an offence under section 5 of the Misuse of Drugs Act 1971 to possess a controlled drug with intent to supply it to another. This section in subsection (2), amends section 5 of the 1971 Act to create a presumption of intent to supply where the defendant is found to be in possession of a particular amount of controlled drugs. Where the presumption applies a court or jury must assume that the defendant intended to supply the drugs. The presumption does not apply if evidence is adduced, by any person, that raises an issue that the

defendant may not in fact have intended to supply those drugs. Where such evidence is raised it will be for the prosecution to prove beyond reasonable doubt that the defendant intended to supply the drugs in his possession. The particular amount of drugs that will give rise to the presumption will be prescribed by the Secretary of State in regulations. The levels will reflect and be proportionate to the seriousness of the offence of supply of a controlled drug. Subsection (2) provides that the regulations only have effect in respect of proceedings for an offence committed after those regulations come into force. Section 31 of the 1971 Act will apply to those regulations. Therefore the regulations may make different provision for different controlled drugs and may only be made following consultation with the Advisory Council on the Misuse of Drugs. Subsection (3) amends section 31 of the 1971 Act to provide that a draft of the regulations made must be approved by a resolution of each House of Parliament.

PART 2: POLICE POWERS RELATING TO DRUGS

Section 3: Drug offence searches

Section 3 Those in possession of drugs may seek to conceal them from the police in body cavities. This section amends section 55 of the Police and Criminal Evidence Act 1984, which provides for an intimate search of a person where it is suspected that the person may have a Class A drug concealed on him.

Subsection (2) provides that a drug offence intimate search may only be undertaken where the person to be searched has consented in writing and requires that the person be informed that the search has been authorised and the grounds on which it has been authorised.

Subsection (3) inserts a new section 55(10A) which requires that the authorisation for the search, grounds for that authorisation and consent of the person to be searched is recorded in the custody record.

Subsection (5) inserts a new section 55(13A) which provides that appropriate inferences may be drawn by a court or jury where a person refuses without good cause to consent to an intimate search.

Subsection (6) amends section 55(17) to make clear that the information that is required to be given to the suspect by section 55(3B) can be conveyed by a constable or suitably designated detention officer or staff custody officer.

Section 4: Drug offence searches: Northern Ireland

Section 4 makes provision equivalent to section 3 for Northern Ireland. Section 4 amends Article 56 (intimate searches) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341).

Section 5: X-rays and ultrasound scans: England and Wales

section 5 inserts a new section 55A into the Police and Criminal Evidence Act 1984.

New section 55A(1) enables a police officer of at least the rank of inspector to authorise an x-ray or ultrasound scan (or both) of a person suspected of swallowing a Class A drug which he had in his possession with intent to supply or export unlawfully, where the person has been arrested for an offence and is in police detention.

New section 55A(2) provides that an x-ray may not be taken or an ultrasound scan undertaken without the suspect's consent which must be in writing. New section 55A(3) requires that the person be informed that the x-ray or ultrasound has been authorised and the grounds on which it has been authorised. New section 55A(4) provides that the x-ray or ultrasound scan may only be taken at a hospital, registered medical practitioner's surgery or other place used for medical purposes and only by a registered medical practitioner or nurse. New section 55A(5) and (6) requires that the authorisation for the x-ray or ultrasound, grounds for that authorisation and consent of the person to be searched is recorded in the custody record as soon as practicable after the x-ray has been taken or ultrasound carried out.

New section 55A(7) and (8) makes provision for information relating to x-rays and ultrasound scans to be included in annual reports made by chief constables or the Commissioner of Police of the Metropolis. The reporting requirements are similar to those which apply to information relating to intimate searches.

New section 55A(9) provides that appropriate inferences may be drawn by a court or jury where a person refuses without good cause to consent to an x-ray or ultrasound scan.

Subsection (2) amends Schedule 4 to the Police Reform Act 2002 to allow detention officers and staff custody officers to inform suspects of the matters referred to in section 55A(3).

Section 6: X-rays and ultrasounds scans: Northern Ireland

Section 6 makes provision equivalent to section 5 for Northern Ireland. Section 6 inserts a new Article 56A into the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341) dealing with the taking of x-rays and the carrying out of ultrasounds. The authorisation must be given by a police officer of at least the rank of superintendent.

Section 7: Testing for presence of Class A drugs

Section 7 makes a number of amendments to the Police and Criminal Evidence Act 1984 (PACE) to allow for the introduction of drug testing of persons after arrest. The existing provisions for testing after charge remain. The new provision will apply to persons aged 18 and over. Subsections (2) to (6) amend section 63B of PACE to permit persons aged eighteen or over to be tested on arrest for a specified Class A drug. This power arises where the person has been arrested for a "trigger" offence or for any offence where a police officer of at least the rank of inspector has reason to believe the misuse of such a drug contributed to that offence and authorises the test. This power sits alongside the existing power in section 63B of PACE, as amended by section 5 of the Criminal Justice Act 2003, to test persons who have been charged with such an offence.

Subsection (7) inserts new sections 63B(4A) and 63B(4B) into PACE. These require a notification to be given by the Secretary of State that appropriate arrangements have been made in respect of an area before testing on arrest can operate. The notification may refer to an entire police area or to a single police station.

Subsections (8) to (12) further amend section 63B of PACE. New section 63B(5B) ensures that, where a sample is taken from a person on arrest, no other sample can be taken if he is charged with that offence or any other offence which meets the charge condition during that period of detention. However, in that event, the sample must be treated as having been taken in respect of the offence for which the person is charged. New section 63B(5C) allows for a person who has been arrested for an offence which meets the arrest condition to be tested within a period of 24 hours following his arrest for that offence even though the only reason for his detention at the point the sample is taken is due to his having been arrested for a further offence that does not satisfy the arrest condition. New section 63B(5D) also provides that a person has to have been brought before the custody officer before a test may take place. Subsection (10) substitutes a new section 63B(6A) which provides the Secretary of State with a power to amend by order the age of persons to whom such a request can be made on arrest and on charge. Subsection (11) amends section 63B(7) of PACE to permit disclosure of the drug test results for the purpose of making a decision as to whether to give a conditional caution under Part 3 of the Criminal Justice Act 2003. Subsection (12) omits section 63B(9) of PACE. Subsection (13) provides that the notification condition is to be treated as being satisfied for the purposes of the charge condition in those areas in which section 63B(2) of PACE is in force on the day this section comes into force. Subsection (13) also provides that the notification condition is to be treated as being satisfied for the purposes of the age condition in those areas in which a notification has been given under section 63B(9) of PACE on the day this section comes into force.

Section 8: extended detention of suspected drug offenders

Some drug dealers will swallow drugs, suitably wrapped, upon arrest.

Section 8 will allow a court to remand a prisoner to the custody of a police officer where it is suspected that the prisoner has swallowed drugs to conceal evidence and avoid prosecution.

Currently the police may detain a person in police detention under the Police and Criminal Evidence Act 1984 for a maximum of 96 hours prior to charge. This is not necessarily a sufficient period of time for swallowed evidence to be recovered.

Section 152 of the Criminal Justice Act 1988, permits a magistrates' court to commit a person charged with an offence under section 5(2) of the Misuse of Drugs Act 1971 (possession of a controlled drug) or a drug trafficking offence into the custody of a Customs officer for a period of up to 192 hours to increase the likelihood of the evidence being recovered.

This section amends section 152 of the Criminal Justice Act 1998 to give magistrates similar powers to remand a person, upon charge, to the custody of a police officer, for a period of up to 192 hours.

PART 3: ASSESSMENT OF MISUSE OF DRUGS

Section 9: Initial assessment following testing for the presence of Class A drugs

Section 9 in subsections (1) and (2), introduces a new discretionary power for the police to require persons who have tested positive for a specified Class A drug under section 63B of PACE, as amended by section 7 of this Act, to attend an initial assessment of their drug misuse. Subsection (3) sets out the purposes of that initial assessment. This power is subject to the age condition and notification condition (as set out in subsections (4) to (6)) being met. Subsection (4) provides that a person can only be subject to the requirement if he has reached the age of 18 (or a different age, if the Secretary of State so specifies by order made by statutory instrument). Subsections (5) and (6) provide that a person can only be subject to the requirement where the relevant chief officer of police has been informed that the necessary arrangements for carrying out the assessments have been made for those who have been tested at the police station in which the person was detained. Such a notification can apply to a police area or to a single police station.

Section 10: Follow-up assessment

Section 10 in subsections (1) and (2), provides that a police officer must, when imposing a requirement to attend an initial assessment under section 9, also require the person to attend a follow-up assessment and must inform the person that this second requirement will cease to have effect if he is informed at the initial assessment that he is no longer required to attend the follow-up assessment. Subsections (3) and (4) set out the purposes of the follow-up assessment. The age and notification conditions which apply to follow-up assessments are similar to those which apply to initial assessments. Subsection (5) provides that the person concerned must have reached the age of 18, (or such different age as is specified by the Secretary of State by order). Subsections (6) and (7) provide that a person can only be subject to the requirement where the relevant chief officer of police has been informed that the necessary arrangements for carrying out the assessments have been made for those who have been tested at the police station in which the person was detained.

Section 11: Requirements under sections 9 and 10: supplemental

Section 11 imposes a number of obligations on police officers where they require a person to attend an initial assessment under section 9, or both an initial assessment under section 9 and a follow-up assessment under section 10. Subsection (2) requires a police officer to inform the person of the time and place of the initial assessment and subsection (3) requires a police officer to warn the person that he may be prosecuted if he fails, without good cause, to attend for the duration of the initial assessment. Subsection (4) requires a police officer to give a similar warning in the case of a person who is also required to attend a follow-up assessment. Subsection (5) requires a police officer to confirm the requirement to attend an initial assessment or both an initial assessment and a follow-up assessment (as the case may be) and the matters expressed verbally under subsections (2) and (3) and any warning given under subsection (4) in writing. Subsection (6) confirms that this information must be conveyed verbally and in writing before the person is released from police detention. Subsection (7) requires the provision of such information to be recorded in the person's custody record. Subsection (8) enables the police or a suitably qualified person to provide a further written notice to the person varying the time and/or place of the initial assessment and repeating the previous warning regarding threat of prosecution.

Section 12: Attendance at initial assessment

Section 12 in subsection (2), places a duty on the person conducting the initial assessment to inform the police if the person concerned fails to attend or remain for the duration of that assessment. Subsections (3) and (4) provide that a person is guilty of an offence and liable on summary conviction to a fine, imprisonment or both if they fail without good cause to attend and remain for the duration of the initial assessment. Subsection (5) provides that a person who fails to attend the initial assessment will no longer be required to attend a follow-up assessment.

Section 13: Arrangements for follow-up assessment

Section 13 sets out the arrangements for a follow-up assessment. Subsections (2) and (3) provide that the requirement for a person to attend a follow-up assessment ceases to have effect if the person is informed by the initial assessor that he is no longer required to attend that assessment. The initial assessor will do so where he considers that a follow-up assessment is not appropriate.

Subsections (4) and (5) require the initial assessor, where he considers a follow-up assessment to be appropriate, to inform the person of the time and place of that assessment and warn the person that a failure to attend for the duration of the assessment without good cause may render him liable to prosecution. Subsection (6) requires the initial assessor to confirm the requirement and the matters expressed verbally in subsections (4) and (5) in writing. Subsection (7) confirms that this information must be conveyed verbally and in writing before the end of initial assessment. Subsection (8) enables the initial assessor or another qualified person to provide a further written notice to the person varying the time and/or place of the follow up assessment and repeating the previous warning regarding threat of prosecution.

Section 14: Attendance at follow-up assessment

Section in subsection (2), places a duty on the person conducting the follow-up assessment to inform the police if the person concerned fails to attend or remain for the duration of that assessment. Subsections (3) and (4) provide that a person is guilty of an offence and liable on summary conviction to a fine, imprisonment or both if they fail without good cause to attend and remain for the duration of the follow-up assessment.

Section 15: Disclosure of information about assessments

Section 15 provides that information obtained as a result of the initial assessment or follow-up assessment may not be disclosed without the written consent of the person concerned except as provided for in subsections (1) and (2). Subsection (1) provides that information obtained as a result of an initial assessment may be disclosed to those involved in the conduct of the initial assessment and those who are or may be involved in the conduct of any follow-up assessment. Subsection (2) provides that information obtained as a result of a follow-up assessment may be disclosed to those who are involved in the conduct of that assessment.

Section 16: Samples submitted for further analysis

Section 16 in subsection (1) provides that a person will no longer be required to attend an initial or follow-up assessment if, before he attends that assessment, a further analysis of the sample taken reveals that it was negative. Subsections (4) and (5) provide that where a person has failed to attend or to attend for the duration of an assessment and the requirement subsequently ceases to have effect by virtue of subsection (1), no proceedings will be brought in respect of that failure and any ongoing proceedings in respect of that failure will be discontinued.

Section 17: Relationship with the Bail Act 1976 etc.

Section 17 in subsection (1) provides that a requirement to attend either an initial assessment or a follow-up assessment ceases to have effect if, before he has complied with the requirement in question, the person is charged with an offence which satisfied the arrest or charge condition in relation to the drug test (the related offence) and is granted bail in respect of that offence by a court on the condition that he undergo a relevant assessment and/or participate in follow-up under the Bail Act 1976.

Subsection (2) provides that a relevant assessment for the purposes of the Bail Act 1976 is to be treated as having been carried out where a person attends for the duration of an initial assessment and the initial assessor is satisfied that the assessment fulfilled the purposes of the relevant assessment.

Subsection (3) further provides that a person will be considered to have undergone such a relevant assessment in those circumstances.

Subsection (4) provides that an initial assessor may disclose information regarding the initial assessment to enable a court to determine whether those circumstances arise.

Section 18: Orders under this Part and guidance

Section 18 provides that an order made by the Secretary of State amending the age at which persons may be required to attend an initial assessment and a follow-up assessment may make provision where appropriate in respect of persons under the age of eighteen, may make different provision for different police areas and must be approved in draft by both Houses of Parliament. Subsection (3) provides that a police officer and a suitably qualified person must have regard to any guidance issued by the Secretary of State under this Part of the Act.

Section 19: Interpretation

Section 19 defines a number of terms that are used in Part 3 of the Act.

PART 4: MISCELLANEOUS AND GENERAL

Section 20: Anti-social behaviour orders: intervention orders

Section 20 amends the Crime and Disorder Act 1998 (the "CDA") in relation to Anti-social Behaviour Orders (ASBOs) and provides for a new order which can be made alongside an ASBO when drug misuse has been a cause of the behaviour that led to the ASBO being made.

New section 1G, subsections (1) and (2) set out when an application for an intervention order can be made. It provides that an intervention order can be applied for by a "relevant authority" (as defined in section 1(1A) of the CDA) when it makes an application for an ASBO under section 1 of the CDA or an order in the county court under section 1B of the CDA. The application for the intervention order should be preceded by an assessment and report of the defendant's behaviour where this relates to the misuse of controlled drugs together with consultation with persons prescribed by the Secretary of State to ensure that the appropriate activities to address such behaviour are available locally. There is a also a power for the Secretary of State to prescribe that an intervention order can be made when other factors are influencing the person's behaviour.

Subsection (3) provides that the court may make an order if it has made an ASBO and is satisfied that the relevant conditions relating to the intervention order are met.

Subsection (4) sets out the "relevant conditions". They are that an order is desirable in the interest of preventing a repetition of the behaviour that led to the order being made, that the appropriate activities to address the behaviour have been identified locally, that the defendant is not already subject to an intervention order or to any other treatment relating to the behaviour which led to the intervention order being made and that the Secretary of State has notified the courts that such orders are available in their area.

Subsection (5) states that the order should not exceed 6 months and requires the defendant to comply with the requirements of the order, and any directions that may be given under the order.

Subsection (6) sets out that the order or directions given under the order can require the defendant to participate in specified activities and require attendance at specific times.

Subsection (7) provides that the requirements of the order should avoid, as far as reasonably practicable, interfering with the defendant's religious belief and any work or educational commitments.

Subsection (8) provides that the person responsible for providing or supervising the activities must inform the relevant authority if the defendant fails to comply with the order.

Subsection (9) provides that the Secretary of State shall prescribe those persons who are responsible for the provision or supervision of the appropriate activities.

Subsection (10) sets out definitions.

Subsection (12) provides that an intervention order can be applied for if an ASBO has already been made on an earlier occasion, and the same conditions have been met.

Section 1H, subsection (1) provides that the court, before making the order, must make the defendant aware of the requirements of the order and the consequences of non- compliance, and allows the court on application by the defendant or the relevant authority to vary the order. The definition of a 'relevant authority' is the same as that given in section 1(1A) of the Crime and Disorder Act 1998, that is, the council for the local government area or any chief officer of police any part of whose police area lies within that area.

Subsection (2) sets out that the Secretary of State has power to prescribe cases when subsection (1) does not apply, or when the explanation can be made in the absence of the defendant and in written form.

Subsection (3) provides that if found guilty of a breach, the defendant is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Subsection (4) provides that the order will cease if the ASBO it was made with also ceases.

Subsection (5) provides that the defendant or the relevant authority can ask the court to vary or discharge the order by way of application.

Subsection (6) states that an application under subsection (5) made in the magistrates' court shall be an application by complaint.

Subsection (7) allows the court to vary the order if it is varying the accompanying ASBO.

Subsection (2) of this section amends section 114(2) of the Crime and Disorder Act 1998 to provide that an order made by the Secretary of State under new section 1G of that Act, as inserted by subsection (1) of this section, is subject to the negative resolution procedure.

The Drugs Act 2005 (Commencement No. 4) Order 2006 This Order brings section 20 of the Drugs Act 2005 into force on 1st October 2006. Comment: This relates to the power to make intervention orders as part of an ASBO.

The Crime and Disorder Act 1998 (Intervention Orders) Order 2006 This Order, which comes into force on 1st October 2006, prescribes certain matters for the purposes of intervention orders under section 1G of the Crime and Disorder Act 1998 (as inserted by section 20 of the Drugs Act 2005). Article 2 of the Order prescribes the persons to be consulted before applying for an intervention order. Article 3 prescribes the person responsible for the provision or supervision of "appropriate activities" under such an order, namely a trust or authority referred to in article 2 which provides or supervises, or arranges for the provision or supervision of, those activities. Article 4 prescribes those activities and who constitutes an "appropriately qualified person" to compile a report for the purposes of such an application. The National Treatment Agency was established by the Government in 2001 to improve the availability, capacity and effectiveness of treatment for drug misuse. The publication "Models of care for treatment of adult miss-users; Update 2006" can be obtained free of charge as a PDF on the National Treatment Agency's website at www.nta.nhs.uk or from the Department of Health publications order line, telephone number 0300 123 1002.

Section 21: Inclusion of mushrooms containing Psilocin etc. as Class A drugs

Section 21 inserts into Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 a fungus of any kind that contains the drug psilocin or an ester of that drug. This has the effect of making such a fungus, often referred to as 'magic mushrooms', a Class A drug for the purposes of the 1971 Act. Currently, such a fungus is only a Class A drug where it is in a form which constitutes a preparation or other product containing psilocin or an ester of psilocin for the purposes of paragraph 5 of Part 1 of Schedule 2 to the 1971 Act.

Section 22: Financial provision

Section 22 authorises additional expenditure incurred by the Secretary of State as a result of the provisions of the Act and increases in expenditure under existing Acts.

Section 23: Amendments and repeals

Section 23 gives effect to the Schedules which set out legislation to be amended and repealed.

Section 24]: Short title, commencement and extent

Section 24subsection (1) sets out the short title of the Act. Subsections (2) to (5) provide for commencement. Subsections (6) and (7) set out the extent of the Act.

SCHEDULE

Schedule 1:Amendments

Schedule 1:Amendments Paragraph 2 amends section 37 of the Police and Criminal Evidence Act 1984 ("PACE") to enable persons who would otherwise be released on bail without charge to be detained to allow a sample to be taken before release so long as that extended detention does not take the total period of continuous detention for that offence beyond twenty-four hours.

Paragraph 3 amends section 38(1)(a)(iiia) and section 38(6A) of PACE.

Paragraph 4 amends section 63B(7) of PACE to enable the results of drug tests obtained under that section to be disclosed for the purposes of an initial assessment or a follow-up assessment and for the purposes of proceedings in respect of a failure to attend for the duration of either.

Paragraph 5 omits subsection 57(5) of the Criminal Justice and Court Services Act 2000 which has been superseded by amendments made in section 7.

Paragraph 6 repeals section 38 of the Criminal Justice and Police Act 2001 (which has not been brought into force). Section 38 of the 2001 Act prospectively amended section 8 of the Misuse of Drugs Act 1971 by creating an offence of permitting the use of a controlled drug on premises. This section is being repealed because adequate powers to close premises where drugs are used unlawfully are now provided for in Part 1 of the Anti-social Behaviour Act 2003.

Paragraph 7 amends section 1 of the Anti-social Behaviour Act 2003. It provides that where a constable serves a closure notice under that section and fixes a copy of the notice to at least one prominent place on the premises he may enter any premises in question for the purposes of doing so (using reasonable force if necessary).

Paragraph 8 omits subsection 5(3)(a) of the Criminal Justice Act 2003 which has been superseded by amendments made in section 7.

Schedule 2: Repeals

LIST OF DRUGS CURRENTLY CONTROLLED UNDER THE MISUSE OF DRUGS LEGISLATION

The following is a list of the most commonly encountered drugs currently controlled under the Misuse of Drugs legislation showing their respective classifications under both the Misuse of Drugs Act 1971 and the Misuse of Drugs Regulations 2001. Please note that the list is not exhaustive and in the event of a substance not being listed below reference should also be made to the notes in Parts I, II, III and IV of Schedule 2 of the Misuse of Drugs Act 1971 and in Schedules 1 to 5 of The Misuse of Drugs Regulations 2001. Reference may also be made to Licensing Section who hold a more detailed list of drugs in Schedules 1 and 2 and to the Laboratory of the Government Chemist.

Controlled drugs list

The Misuse of Drugs Act 1971 (Amendment) Order 2005 "Ketamine"

Guidelines for field mycologists: the practical interpretation of Section 21 of the Drugs Act 2005

Overview
Section 21 of the Drugs Act 2005 amends the Misuse of Drugs Act 1971 to provide that all psilocybe magic mushrooms1, regardless of whether they constitute a preparation or a product, constitute a Class A drug. This was achieved by inserting ‘Fungus (of any kind) which contains psilocin or an ester of psilocin’ into Part 1 of Schedule 2 to the 1971 Act.

Thus, as of 18th July 2005, it is 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.

COMMENCEMENT

Section 24 of the Act provides for commencement. Section 24 came into force on Royal Assent. Section 22 also came into force on Royal Assent. The remaining provisions come into force on such dates as the Secretary of State by order appoints.

The following commencement orders have been made:

The Drugs Act 2005 (Commencement No. 5) Order 2007 Statutory Instrument 2007 No. 562 (C. 23)

This Order brings into force provisions in the Drugs Act 2005 ("the 2005 Act"). The provisions specified in Article 2(1) are brought into force on 1st April 2007 and the provisions specified in Article 2(2) are brought into force on the same date to the extent they are not already in force.

Section 10 of the 2005 Act introduces a requirement on a police officer to require a person from whom a sample has been taken under section 63B of the Police and Criminal Evidence Act 1984 which reveals that a specified Class A drug may be present in that person's body, and whom he requires to attend an initial assessment, to also attend a follow-up assessment. This requirement does not apply unless the relevant chief officer has been notified by the Secretary of State that arrangements for conducting follow-up assessments have been made at the police station in which the person is detained, and the notice has not been withdrawn.

UK Statute Law Database
Drugs Act 2005 (Commencement No. 5) Order 2007 No. 562

EXPLANATORY MEMORANDUM TO THE MISUSE OF DRUGS (AMENDMENT No.3) REGULATIONS 2006

The Misuse of Drugs (Amendment) Regulations 2006 Statutory Instrument 2006 No. 986.
Home Office circular: 20/2006 THE MISUSE OF DRUGS (AMENDMENT No.2) REGULATIONS 2006.
Home Office Circular 42/2005 Controlled drugs: unlawful use on premises
The Misuse of Drugs (Amendment No. 2) Regulations 2006 Statutory Instrument 2006 No. 1450.
The Misuse of Drugs Regulations 2001 Statutory Instrument 2001 No. 3998.

Blackstone’s B20.22 Misuse of Drugs Regulations 2001
The Misuse of Drugs (Amendment) Regulations 2006 (SI 2006 No. 986) amends the Misuse of Drugs Regulations 2001 (SI 2001 No. 3998). Regulations 2 to 7 amend regulations 2, 6B and 7 to 10 of the 2001 Regulations to replace references to 'extended formulary nurse prescribers' with references to 'nurse independent prescribers'. Regulations 3(c) to (e) and 6(b) amend regulations 6B and 9 of the 2001 Regulations to allow nurse independent prescribers to prescribe and supply diazepam, lorazepam and midazolam for the treatment of tonic-clonic seizures. Blackstone’s

Case law

Blackstone’s B20.108 Sentencing Guidelines: Class C Drugs
The increase in the maximum penalty for the illegal production, importation, etc, of Class C drugs from 5 years' imprisonment to 14 years is equally applicable to all such drugs, and there is nothing to suggest that Parliament intended heavier sentences to be imposed only in cases involving the former class B drug, cannabis: see Parekh [2006] All ER (D) 225 (Apr). A custodial sentence of five years imposed in a case involving the illegal commercial importation of diazepam tablets was accordingly upheld, even though the appellant was not alleged to be the ringleader and had pleaded guilty. Blackstone’s

Additional information

Guidelines for field mycologists: the practical interpretation of Section 21 of the Drugs Act 2005.

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