Challenging a classification under the Misuse of Drugs Act ?

Jasbird jasbird#deletethis# at
Tue Jul 22 09:40:09 EST 2003

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Rudi Fortson wrote this in the 2nd edition of "The Law on the Misuse
of Drugs and Drug Trafficking Offences" - 2nd Edition. Pages 5-8.
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The Oxford English Dictionary defines a "drug" as being:

"An original, simple, medicinal substance organic or inorganic, used
by itself, or as an ingredient in medicine ... a narcotic or opiate

The word "narcotic," by contrast has a much narrower meaning:

"... a substance which when swallowed, inhaled or injected into the
system induces drowsiness, sleep, stupefaction or insensibility ...."

Oddly, the Misuse of Drugs Act 1971 does not define the word "drug,"
preferring instead to merely list those "substances" which are
"controlled" in their use. Clearly all medicines are drugs but not all
drugs are medicines. Scientists generally access a drug's level of
safety by reference to its therapeutic index., being the ratio between
the median effective dose as against the median toxic dose.
For present purposes drugs can be loosely grouped as follows:
(i)    substances either organic or inorganic, which are used in
(ii)   drugs present in naturally occurring substances, e.g. caffeine
in tea
and coffee, alcohol, nicotine in tobacco, T.H.C. in cannabis; 
(iii) narcotics contained in substances not naturally occurring, e.g.
solvent glues, nail varnishes, butane fuels; 
(iv) substances cultivated, extracted or created principally for
narcotic abuse, e.g. LSD, psilocybin (the "magic mushroom").

The Preamble to the M.D.A. reads as follows:

"An Act to make provision with respect to dangerous or otherwise
harmful drugs...."

Hence certain drugs are "controlled" and listed as Class A, B or C
type drugs depending on the magnitude of danger or harm attached to
them: see section 2(1) M.D.A. While it is not difficult to predict
substances which would fall into the dangerous drugs category, being
dangerous to one's health, physically or mentally, it is apparent that
Parliament had in mind yet another category of drug which it sought to
control, namely, those drugs that are described by the M.D.A. as being
"otherwise harmful." The problem is identifying those drugs which are
liable to fall into this latter category. An indication is given in
section 1(2) which imposes a duty on the Advisory Council to keep
under review drugs "likely to be misused and of which the misuse is
... capable of having harmful effects to constitute a social problem
..." What then is meant by the phrase "a harmful effect" in the
context of section 1(2) M.D.A.? Also what type of problem is a
"social" one?
(a)	Harmful effects

The first point to note is that, unlike the Preamble to the Act,
section 1(2) does not distinguish between "dangerous" drugs and those
that are "otherwise harmful." Instead the legislature preferred to
rely on the phrase "harmful effects" as being all-embracing. Secondly,
Parliament clearly intended to include drugs that were not only
capable of causing physical or mental "harm" to the user, directly or
indirectly, but also drugs which are capable of producing harmful
results, or consequences, amounting to a "social problem."
Accordingly, in this wider context, the "harm" encompasses
sociological "damage," e.g. delinquency, or the emergence of a social
group of users who are in danger of acquiring no more than
psychological dependence to a certain drug, e.g. barbiturates.

(b)	Defining what is a social problem

Any irregular activity in the pattern of human behaviour in which some
action is required to be carried out by and on behalf of the community
in order to maintain harmonious co-existence, or to maintain the
reciprocation of benefits, may be said to give rise to a social
problem. Accordingly, drugs that cause an unacceptably high level of
addiction and which place significant demands on the resources of the
medical profession and the social sciences create a social problem.
But suppose the taking of a certain drug does no more than mark
adolescent rebellion and causes no physical or psychological harm at
all. Such behaviour may be delinquent and therefore a "social problem"
but it is also likely to be seen as a harmful effect of the drug
misuse and the drug is liable to be controlled.

With the emphasis therefore being placed on the recognition of any
drug-linked social problem (which need not be based on delinquency),
it is evident that all drugs are capable of being controlled by the
M.D.A. even if they may not produce any physical or psychological harm
(medically speaking). The consequential sociological problem is, in
itself, one "harmful effect" of the abuse.

The classes of controlled drugs are not closed, and consequently
substances may be added to, or removed from Schedule 2 by an Order in
Council: section 2(2). A draft of that order must be laid before
Parliament and approved by a resolution of each House: section 2(5).
This is designed to give Parliament the opportunity of vetting any
proposed changes to the law. It is also the probable reason why any
radical alteration to Schedule 2 is unlikely to occur lest it should
spark off a politically-damaging response.


(a) Flexibility

It is clearly desirable that the classes of controlled drugs should be
kept open and that any alterations made to them are based on sound
empirical research. Both the Advisory Council and the Secretary of
State may initiate their own research to that end, but the Secretary
of State cannot lay a draft order before Parliament without first
consulting the Advisory Council: see section 2(5). Determining just
how flexible the law really is can best be measured by noting the rate
at which the law changes in response to the prevailing conditions and
state of scientific opinion.

Since 1971 no less than ten "Modification Orders" have been approved,
the latest being S.I. 1990 No. 2589. (See also S.I. 1973 No. 771, S.I.
1975 No. 421, S.I. 1977 No. 1243, S.I. 1979 No. 299, S.I. 1983 No.
765, S.I. 1984 No. 859, S.I. 1985 No. 1995, S.I. 1986 No. 2230, S.I.
1989 No. 1340.) In the majority of cases, the changes have not been
particularly startling. But more sweeping changes have taken place in
the last two years, including (after much pressure), controlling
certain barbiturates and tranquillisers which have been deliberately
abused or taken to excess for a considerable number of years. For the
moment the trend is to select, with one hand, an increasing number of
drugs for the purposes of classification so as to bring them within
the scrutiny of the law but, using the other hand, to grant an
extension of the general authority to possess and supply, a limited
number of them; as well as making a number of other concessions.
Laudable though it is for the law to be flexible, and to be seen to be
so, three other factors must be put into the equation. First, the law
must strive to be certain. From the moment of manufacture, until the
moment of consumption, a drug will change hands countless times. It
may be imported or exported. It will be used for different purposes.
Different considerations will inevitably apply at different stages,
but the manufacturer and every other party in the chain must make his
arrangements in accordance with the law, and he can only do so if he
knows where he stands. Secondly, the law does not exist to make
criminals out of people unnecessarily. The wider the net of the M.D.A.
is cast, the more likely it is that individuals and companies will
fall foul of the law. Thirdly, consideration must also be given to the
impact that such a restriction will have on innocent parties,
including the drug manufacturers themselves who can suddenly
experience much administrative inconvenience, loss of income and
possible legal action. The manufacturer may also be forced to
litigate, at much expense, and challenge the classification of his
drug as a "controlled" drug.

(b) Classification should not be arbitrary

This is particularly important where drugs are controlled on the basis
that their misuse may have harmful effects sufficient to constitute a
social problem. Drugs may or may not be fashionable to misuse. Those
which are fashionable and meet the criteria, one would expect to see
added to the list, and those ceasing to be so, deleted. Furthermore,
it was presumably not the intention of the legislature to control
drugs that demonstrably appealed only to an eccentric few and was
likely to remain so. In those circumstances the abuse is contained and
limited to an isolated group and therefore not likely to constitute a
social problem. If flexibility is not maintained so that drugs are
classified in keeping with current social and scientific opinion, then
the courts are placed at a considerable disadvantage, at least on the
question of sentence, believing the drugs in question to be more or
less harmful than they really are.

(c) Challenging the classifications

Most people recognise certain drugs by their "brand name" but the
government designates a controlled drug by its chemical address, as it
must do for clarity. Since drugs are controlled in this way it follows
that many different brands can be affected even if it is, in truth,
one brand name that seems to be the target of misuse. Furthermore, a
drug which produces an effect similar to the misused drug might also
find itself being controlled for that reason, even though the
comparable substance is differently chemically constituted and has no
history of having been misused at all. The drug may also be
controlled, not because it is inherently dangerous, but because its
harmful effect is said to be rooted in a social problem.

What, then, can a company do about it? Its only recourse is to attempt
to go behind the making of the Order in Council by ascertaining that
the Secretary of State acted ultra vires and the designation was made
on a misconceived basis. It goes without saying that such a company
sets itself a most formidable task.

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