April 26, 2011
I write this from Mexico, where the ‘War on Drugs’ and clashing drug cartels have claimed thousands of lives. The billions of dollars worth of aid being pumped in countries in South America, Afghanistan and elsewhere have resulted in, at best, the ‘balloon effect’, where production is pushed down in one area only to pop up in another. In the fifty years since the 1961 UN Single Convention on Narcotic Drugs, the ‘War on Drugs’ has morphed from a figurative battle to a literal one. The fog of war has driven politicians to go beyond the bounds of law in their lust for battle: the Single Convention allows for the medical and scientific use of controlled drugs and yet, many countries interpret it as prohibiting all use of all Schedule I drugs, hindering potentially life changing research.
Domestic law has also been trampled upon in the rush to act tough on drugs. The UK’s 1971 Misuse of Drugs Act [MDAct] was designed to remove decision-making about drugs from the party politics of parliament to minimise the risk that short term party interests might lead to bad laws. The MDAct classified drugs in three levels – A B C – based on their relative harms of drugs, which were decided upon by an expert group, the ACMD [Advisory Council on the Misuse of Drugs]. This worked well for the first 30 years and even Margaret Thatcher accepted its recommendations on needle-exchange to limit HIV spread. Though this went against her political philosophy, she accepted that it was logical to be guided by experts and was rewarded by the UK leading the world in terms of slowing the rate of HIV spread from intravenous drug use.
In the last decade under Tony Blair’s government, things began to change. It decided it knew better than experts and hunted for evidence to support its policy decisions rather than the other way round. In late 2004, Blair decided to wage a different type of war – this time on drugs. For unknown reasons – at least not explained in his autobiography – he decided to ignore the MDAct (i.e. break the law) and make decisions on drugs without consulting the experts on ACMD. He convened a special meeting of senior police, military and customs officials, from which the war was initiated.
The first salvo was aimed at magic mushrooms. These were legal at the time but the government decided that they had to be hard on head-shops selling freeze-dried preparations so they made them a Class A drug without consulting the ACMD. The well known adage “the first casualty of war is the truth” certainly applied to the mushroom decision as by no metric are mushrooms as harmful as the real Class A drugs such as crack cocaine and heroin.
The mushrooms were an easy battle to win and perhaps this rewarding feeling of success fueled the next campaign against cannabis. In 2004, all preparations of cannabis had been made Class C (they had been either Class A or Class B previously). This downgrading was made after an extensive review of the evidence by the ACMD, yet was viciously opposed by parts of the media and many politicians. From that date a concerted war was waged against cannabis users justified by statements that cannabis, particularly the new variant skunk, was more harmful than its Class C status would indicate.
Gordon Brown continued the war when he took over as Prime Minister. Within weeks of coming to power, he made the absurd claim that “skunk was lethal” when in reality cannabis, in contrast to alcohol and controlled drugs, has never killed anyone by direct toxicity/poisoning. He oversaw a new Home Office war policy of increasing convictions for cannabis users in an attempt to deter use. This doubled the number of people convicted for cannabis possession from 88,000 in 2004/5 to 158,000 in 2007/8. Police with sniffer dogs became a common site on London tube stations where young men were searched and prosecuted if cannabis was found. That this behaviour almost certainly breached their human rights was ignored; rights have a lesser place when at war. Predictably an even greater injustice was seen by the ethnic bias in convictions with Asian and Afro-Caribbean men being significantly overrepresented.
Worse, the war extended to those using cannabis for medicinal purposes such a people with multiple sclerosis or spasticity. Police would conduct dawn raids on possible users, smashing down their front doors just in case they might leap from their wheelchairs and abseil out the window! Why? Because violence is what wars allow, if not demand.
The war on medicinal cannabis became more aggressive in 2005 when the Law Lords seriously aggravated the situation of those using cannabis for medicinal purposes. They colluded with the government by changing the law to disallow the centuries old “Defense of Necessity” for medicinal cannabis use. This common law allows users to plead that their use of a drug was simply and solely to ameliorate a medical condition for which other treatments had not worked. The Law Lords decided that since the government had decreed that cannabis was sufficiently harmful to be a Class B drug, patients should be deterred from using it by removing this defense. A truly cruel and inhumane piece of legislation that brings shame on those who enacted it and great distress to those prosecuted because of it. However it was predictable as the corruption of the law is a recognized element of war.
The final battle before my sacking was on MDMA (ecstasy). This had been classified alongside cocaine and heroin as a Class A drug ever since it was made illegal. This was patently absurd from any evidence-based perspective but the government had actively resisted any attempts to review the evidence on which ecstasy was classified until ordered to do so by a Select Committee report. When the ACMD with the help of a NICE health technology assessment unit reported that its harms had been overestimated and were commensurate with a Class B status, the government refused to reclassify.
My response to both the cannabis and ecstasy decisions was to point out how they undermined the scientific integrity of the MDAct and, by allowing longer than appropriate prison sentences, were bound to lead to injustice. Moreover, I believed that these decisions could increase the harms from legal drugs particularly alcohol; by scaring people from ecstasy and cannabis they might be increasing use of alcohol, a more harmful drug. By fighting battles on mushrooms, cannabis and ecstasy the government was deflecting attention away from the rising tide of deaths from alcohol.
Military wars are evaluated through public enquiries – surely it is time to seek the truth about the war on drugs and make good the damage done to drug users, their families and the scientific process caused by this unhappy example of political lust for wars.
In this guest post, Dr Les King and Rudi Fortson Q.C. highlight how the last government’s meddling in legislation regarding cathinones, including mephedrone, at this time last year has generated confusion for forensic scientists and legal practitioners regarding the precise placing of some cathinones within Class B. It is a problem that is only now being addressed.
Instead of accepting the generic definitions of cathinones drafted by members of the ACMD that would cover all the various types of cathinones, the Home Office took the unusual step of changing the legislation to specifically mention mephedrone to ‘send a message’ to the public, presumably in response to the (unfounded) hysteria over mephedrone use by young people. In taking this course, one variant of methylmethcathinone (mephedrone) was listed in one sub-paragraph of Part 2 of Schedule 2 to the MDA, while other variants of methylmethcathinone were listed in another sub-paragraph, thereby generating confusion. Logically, all variants of that substance ought to have been classified as a single group. To understand how this came about requires a little more understanding of the chemistry of cathinones.
Dr King explains: The crux of the problem is peculiarly technical, but rests on the existence of mephedrone isomers. While mephedrone is 4-methylmethcathinone , both 2- and 3-methylmethcathinone can also exist. To distinguish those different isomers is a challenging task for a laboratory, and certainly cannot be done by the routine methods used in drug analysis. That is where well-crafted generic control is so useful: all three isomers can be controlled without ever mentioning them by name in the Act or needing to be analytically-specific about which one has been found in a questioned sample.
That advantage was lost following Home Office tinkering. Eventually, following many discussions between the forensic science community and the CPS, a legally acceptable work-around was concocted. Yet that legal fudge could only be a temporary measure, which is why the Government has announced that the original clauses in the Modification Order of 2010 will now be replaced with what should have been there in the first place. This is a clear case of government acting without a clear understanding of the issues. Instead of supposedly protecting the public from harm with the controlling of mephedrone, the previous government unnecessarily weakened legislation for political gain.
However, whilst recognising the advantages of generic descriptions from a technical point of view, Rudi Fortson has expressed a note of caution. For him, the law should not only be precise but it should also be clear and capable of being understood by lawyers and non-lawyers alike. There is a risk that various substances, readily identifiable by their popular name (such as “mephedrone”), will be lost in the language of chemistry, making it difficult for non-chemists to identify, when reading the MDA, which drugs are controlled and which are not.