Law Makers Lab Technicians & Section 28 of the MDA 1971
I recently dealt with a case concerning compounds derived from cathinone, which although used as plant food, were also marketed on the internet as ‘legal highs’. The defence raised Section 28 of the Misuse of Drugs Act 1971 and also questioned whether the compounds in question were actually controlled substances. My research led me to discover how complicated the law on these compounds actually is, which in turn presents real problems when prosecuting.
The two compounds we were concerned with were methylethylcathinone (known as “NRG-2”) and methylmethcathinone, (known as ‘mephedrone’) These so called ‘designer drugs’ are derived from a compound called cathinone, The problem that has confronted the legislators with these compounds is, that as soon as one is classified by name, those who manufacture them wil slightly alter the molecular structure, thereby creating a distinct new compound which would not, therefore be covered by the legislation and therefore not be il egal: of course it may not necessarily be safe either.
At first glance the relevant Acts of Parliament and Statutory Instruments wil easily lead you to conclude, erroneously, two things; firstly NRG-2 is not actually a controlled substance, because the chemical name does not appear in the legislation at all (the closest thing you wil find is ‘methcathinone’), and, secondly that mephedrone was classified then de-classified. I can assure you however that both compounds are controlled drugs of Class B.
The key to this is the technical language of the Statutory Instruments, in which the legislators, in an attempt to keep one step ahead of the lab technicians, have classified the ‘core’ compounds and specified derivatives thereof. In effect therefore, they made il egal
compounds which may not have existed when they were classified. This is all well and good and, no doubt, makes strategic sense in combating this area of drug abuse, but unless you have a working knowledge of organic chemistry, you wil not easily know if what you are dealing with is a controlled substance. This is the sort language to which I am referring:
any compound (not being bupropion, cathinone, diethylpropion, pyrovalerone or a
compound for the time being specified in sub–paragraph (a) above) structurally derived from 2–amino–1–phenyl–1–propanone by modification in any of the following ways, that is to say,
by substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy,
haloalkyl or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents;
by substitution at the 3–position with an alkyl substituent; (i i)
the nitrogen atom with alkyl or dialkyl groups, or by inclusion of the nitrogen atom in a cyclic structure;”
all clear ?
It should also be noted that the apparent ‘de-classification’ of NRG-2was simply correcting a ‘double classification’ as there was no point in having the compound specifical y named and also covered by the paragraphs above.
Whilst any forensic scientist worth their salt can easily explain to you and the jury that both NRG-2 and Mephedrone are covered by the above paragraphs, there is stil the issue of the defence under section 28.
It is perhaps worth setting out the relevant part of this section in full:
Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but shal be acquitted thereof if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug;
So, a person who wanted to try a ‘legal high’, particularly the two compounds we have been discussing, who wanted to assure themselves that what they were doing was legal, who went to the legislation and looked for the compounds concerned, could easily, but wrongly, conclude that they were not in fact controlled substances. Coupling this with the fact that a search on the internet wil reveal sites of suppliers who proclaim their legality, it is perhaps small wonder that in my case the jury acquitted.
This leaves the prosecution authorities at a disadvantage: perhaps the way forward is to publicise more widely the compounds by name - this would go some way to remedy the problem, but very often these compounds are not sold by their chemical name but by their street names, which change frequently.
Whilst the strategy of banning derivative compounds cannot be faulted, the lack of clarity and publicity over such compounds stil give the lab technicians, and more particularly their customers, a lead over the law makers.
Chambers of Michael Hubbard Q.C. and Karim Khail Q.C.
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