Temporary Class Drug Order – legal highs’ bubble to be ‘burst’

10 April 2015

From today, 10 April 2015, the government brings into force a Temporary Class Drug Order making it illegal for anyone to make, supply or import five novel psychoactive substances (otherwise known as ‘legal highs’). Anyone convicted of doing so will face a sentence of up to 14 years’ imprisonment and an unlimited fine.

The move comes after the government acted upon such advice from the independent Advisory Council on the Misuse of Drugs. Among the drugs the Council recommended to be banned is Ethylphenidate, marketed as an alternative to cocaine and known colloquially as ‘Gogaine’ or ‘Burst’. The others are 3,4-Dichloromethylphenidate (‘3,4-DCMP’), Methylnaphthidate, Isopropylphenidate and Propylphenidate. The order will be in place for up to 12 months whilst the Council decides if the substances should be permanently made illegal and reclassified as Class A, B or C drugs.

The surge in recent deaths amongst young people using drugs advertised as legal, with consequential connotations of harmlessness, is the rationale behind the change. The government’s stance remains that anyone found in simple possession of these drugs will not be prosecuted. Its aim is to attack unscrupulous drug dealers seeking to evade the law whilst avoiding the unnecessary criminalisation of the young. However the change should be noted widely as ‘supplying’ does not represent acts only attributable to dealers of the highest level. A contemporary passing drugs to a friend at a house party will be deemed a ‘supply’ and thus equally punishable.

The criminalisation of those involved in novel psychoactive substances is nothing new. Deemed the “next battle” in the fight against drugs, the government has previously taken measures to ban other ‘legal highs’. In April 2010 Mephedrone, known as ‘Meow Meow’ and marketed as ‘plant food’, was banned when it was reclassified as a Class B drug after being linked to a number of deaths. On 13 June 2012, the government made active ingredients in ‘Ivory Wave’ – Meow Meow’s purported successor – illegal by reclassifying them as Class B drugs. Marketed as a ‘bath salt’, ‘Ivory Wave’ was found by a coroner to be a potentially “strong contributory factor” to the death of 24 year old Michael Bishton in 2010. The effects are felt globally too, with President Barack Obama taking action in 2012 by banning more than 24 of the most common ‘bath salt’ drugs.

The malleability of ‘legal highs’ means they can embody an indeterminate variety of chemical compounds pulled together in a potent mix by amateur chemists. This often causes the government to be playing ‘catch up’ by introducing bans and reclassifications on a case-by-case basis after wide circulation of the drug has been effected. Locally, efforts have been made to curb the new trend without relying on the introduction of central government statutory instruments. In February 2015 the City of Lincoln, deemed to be suffering from ‘legal high tourism’, was the first place in the country to introduce a Public Space Protection Order specifically designed to prevent the use of such intoxicating substances in the city centre. Such orders, if breached, will prompt a Fixed Penalty Notice or fine upon conviction. Portsmouth has since indicated it intends to follow suit.

Whilst in many ways a game of cat and mouse, the government may choose to take heed of the Irish approach and place a Britain-wide ban on such psychoactive substances. However like Ireland, which outlawed the advertisement, selling, supplying, importation or exportation of these drugs in 2010, the UK would have to specifically set out substances falling (strictly) under that category but not subject to the criminal law (such as tea, coffee and energy drinks). A decision essentially political and inextricably linked to the decriminalisation of already existing classified drugs, the approach going forward is uncertain. However, the decisions taken thus far indicate a consistently negative view of novel psychoactive substances and a desire to incrementally increase illegal classifications. The ‘legal high’ bubble is slowly but surely being ‘Burst’.

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