Theresa May delights drug dealers
The ban on legal highs results from a moral panic with potentially fatal consequences, warns Eddie Ford
A particularly foolish and irresponsible piece of legislation came into force on May 26: the Psychoactive Substances Act, which bans legal highs. This was originally meant to become law on April 6, but was delayed due to concerns about the law’s enforceability - or even basic rationality. What indeed is its justification or logic?
Previously, exploiting a legal loophole, clever chemists in back-street or ‘grey market’ laboratories were able produce legal versions of popular drugs like cannabis, magic mushrooms, ketamine, ecstasy, etc. They did this by altering the chemical signature of these substances, so that they were different to the ‘real thing’: cannabis, yet not cannabis. Going by names such as Annihilation, Insane, Clockwork Orange and Black Mamba (but often referred to generically as ‘spice’), these novel psychoactive substances (NPSs) were sold in ‘head shops’ and, of course, the internet - some of which could be bought for as little as £10 per 1g packet. Needless to say, the head shops did a roaring trade - as shown by the fact that in 2013, legal highs had been tried at least once by 670,000 15-to-24-year-olds in Britain. A lot of these drugs were extremely potent - it being claimed that some synthesised cannabinoids were 100 times more powerful than traditional strains, even described as being “worse than heroin”.
Now, the production, supply and movement of NPSs for human consumption has been prohibited - the government saying they were “linked” to the deaths of at least 140 people in 2014. Dealers will face up to seven years in prison and people found possessing them with ‘intent to supply’ up to two years - the same as a custodial penalty for possession of a ‘class C’ drug like Benzphetamine and Dextropropoxyphene.1 New powers will also be handed to the police to “seize and destroy” the substances (or keep for themselves).
Undermining the government’s own figures though, the Office for National Statistics found that in 60% of the fatalities between 2004 and 2013, the deceased had also ingested another drug or alcohol (or both) - making it near impossible to determine whether the death was actually caused by the legal high. According to professor David Nutt, a leading psychiatrist and neuropsychopharmacologist, only five people died last year as a direct result of taking legal highs. Figures released under a freedom of information request by Public Health England show that 334 young people aged 18 and under were treated for addictions to NPSs in 2014-15 across England - a 176% rise from the 121 treated in 2013-14. It cannot be denied that legal highs presented a problem - mainly the high toxicity levels - but nothing that will be resolved by a blunderbuss blanket ban. Quite the opposite: the new act will only make things worse.
But the legislation was fatally flawed and illogical from its very inception, as proven by its absurdly broad definition of ‘psychoactive substances’: ie, anything which “by stimulating or depressing the person’s central nervous system … affects the person’s mental functioning or emotional state”.2 This will strike most people as a fairly reasonable description of the thoroughly legal drugs, alcohol, nicotine and even caffeine - and maybe plenty of others too. Since no-one wanted to make criminals of virtually the entire nation, the aforementioned substances were exempted from the bill, along with any substance which is “ordinarily consumed as food and drink”, medicinal products and any drug that is already regulated under the Misuse of Drugs Act 1971.
At one stage, it looked like alkyl nitrates (‘poppers’) would be banned too - enraging regular popper-user and Tory MP for Reigate, Crispin Blunt, who in parliament attacked the government’s “fantastically stupid” proposals to ban the drug. In the end, the Advisory Council on the Misuse of Drugs (ACMD) deemed - with no particular logical consistency - that popper use (or misuse) was “not seen to be capable of having harmful effects sufficient to constitute a societal problem”. However, showing the incoherent nature of the legislation, it should be noted that poppers are not actually listed as exempted substances in schedule 1 of the act - doubtlessly making a field day for lawyers and a headache for the police.3 Crazily, ‘laughing gas’ (nitrous oxide) is now banned - one of the safest drugs around and which for nearly 200 years has been used for pain control. So we have a Kafkaesque situation where potentially very dangerous drugs are legal yet some of the least harmful have been banned - with their very illegality generating increased danger, and in some cases creating new risks.
Naturally, the government has ignored all the advice to the effect that the new legislation is “unworkable” and “unenforceable”, and that the only people who will really benefit will be drug dealers - who must have pin-ups of Theresa May on their walls, delighted at the effort she has made to boost their returns. Making the whole situation even more perverse, the government surreptitiously published on May 20 the ‘forensic strategy’ outlining the testing regime underpinning the entire act - which was less than reassuring. Forensics experts, pharmacologists, lawyers, etc have lined up to say the ban will be “fraught with difficulty” and capable of challenge by “any self-respecting barrister”.
Atholl Johnston, a clinical pharmacology professor at Queen Mary University of London - after consulting the London Toxicology Group and the home office’s Centre for Applied Science and Technology - declared that “we are just not sure how this is going to work” - securing a criminal conviction under the new ban would be “not easy at all”. Of particular concern, he said, was whether the two in-vitro (test-tube-based) tests outlined in the government’s ‘strategy’ would be enough to a prove a substance was capable of producing a psychoactive effect to the criminal court standard of “beyond reasonable doubt”.
Similar anxieties had already been expressed by the ACMD’s chair, professor Les Iversen, in a July 2 2015 letter to Theresa May. He noted that the “psychoactivity of a substance cannot be unequivocally proven”, since the “only definitive way of determining psychoactivity is via human experience”. Therefore “such proxy measures” (ie, in-vitro tests) may not stand up in a court of law. Echoing the ACMD’s concerns about in-vitro testing, professor Johnston said:
Lots of things happen in the body that just don’t happen in a nice clean test-tube system. Lots of things might interact with the drug before it can get to receptors [in the brain]. For a start, the substance might not be absorbed into the blood properly. And will it cross the blood-brain barrier?
Backing up his view, Dr Stephanie Sharp - a forensic pharmacologist and the co-founder of the Glasgow Expert Witness Service - told The Independent that there are “many instances of apparently active substances in-vitro that have no, or a different, effect in man” (May 25). Yet the government has refused to listen to any evidence or facts that interfere with its ideologically-driven ‘war on drugs’ - legal highs being low-hanging fruit politically.
Inevitably, the new law will force users - often among the most vulnerable in society - to turn from head shops to street dealers and the criminal underworld. In other words, legal highs will just become street drugs - with all that implies. Dealers, it almost goes without saying, will exercise even less quality control than head shops - who want people to come back to their shop and buy more products, not die in a gutter. More importantly still, when the drugs were legally purchased from a shop, the ingredients were printed on the back of the packet - so at least the paramedics or doctors knew what someone had taken if they collapsed, substantially increasing their chances of recovery.
But, thanks to the Psychoactive Substances Act, everything is now completely unregulated - you could be taking anything. As sure as night follows day, organised criminals will move in to take over the lucrative new market created by the government - not hesitating to adulterate the drugs if that means they get a mark-up on their competitors. Making a killing is all that matters, not the health or well-being of the users. Indeed, many street dealers want to get you onto heroin and crack, as they are more addictive - hence repeat customers and a higher turnover (on average). If there are more drugs-related deaths thanks to the ban, so what? Users in Manchester, for example, have reported that less than 24 hours after the act came into effect, ‘class A’ dealers already had NPSs for sale, even if they had not yet managed to completely fill the gap left by the ban. Give it time, give it time.
By contrast, look at the Netherlands. New drugs mimicking cannabis are almost non-existent there, because coffee shops can legally sell cannabis - why would you use synthetic crap when you can buy the genuine article across the counter in a safe environment? Unfortunately, if not tragically, the effects of the UK law seem set to follow that of Ireland - which banned legal highs in 2010. There was a transient reduction in use, but then usage went back to where it was before - if not higher. Deaths went up. In December, Ireland’s National Drug-Related Deaths Index showed drug poisoning deaths involving NPSs increased from six in 2010 to 28 in 2013. The European Commission has said that between 2011 and 2014, Ireland experienced Europe’s second largest increase in NPS use among 15-to-24-year-olds. Showing us the possible future, one Irish user told the BBC that, after the ban closed head shops, “People started selling it on every street. It was even easier to get.”
With new legal highs now hitting European cities at an estimated rate of at least 100 a year, it is highly doubtful that the new legislation will be able to keep pace. Yes, like the UK government, you can introduce a simple blanket ban on anything capable of producing a psychoactive effect. But in practice any new drug not already in the UK’s ‘library’ of Certified Drug Reference Standards would have to be tested before a criminal court could accept it was psychoactive, which will be very time-consuming - only to do it all over again with the next new drug. A task of Sisyphus.
No wonder David Nutt has said that the government’s strategy was “pathologically negative and thoughtless” and “not based on reducing harm.”
Legal highs have become victim to a new moral panic reminiscent of the media scare in the 1960s about ‘purple hearts’. This was a combination of amphetamine and barbiturate, first introduced in 1950 and originally marketed as an anti-depressant medication and also as a diet drug. Along with French Blues and Black Bombers, purple hearts (actually triangular blue tablets) were associated with ‘tired housewives’ and the Mod scene, as seen in the film Quadrophenia, where the main character takes purple hearts at a party and then appears to suffer a psychotic episode. After a media campaign about the evils of drugs, unauthorised possession (or non-medical use) of amphetamines was banned in 1964.
Talking of the 1960s, heroin was regularly prescribed by doctors for common ailments, such as coughs, colds and diarrhoea, as well as simply as a pain killer - sometimes in large amounts. In fact it was such a popular medicine, or drug, that The Times on June 14 1955 ran a leader column entitled, “The case for heroin” - something that would now be unthinkable for a mainstream newspaper.4 The editorial noted that there were only 317 addicts to “manufactured” drugs in the whole of Britain, of which just 15% were dependent on heroin - making a “national total of 47.5 heroin addicts”. By contrast, the editorial pointed out, heroin addiction in the US - where it was outlawed in 1925 - is a “major social problem”. As we know, heroin was eventually banned in the UK and it is now roughly estimated that around 200,000 people between 16 and 59 have tried heroin at some point in their life (0.6% of the population), with 596 “heroin and morphine deaths” recorded in England and Wales for 2014.5
Obviously, all the new act will do is drive people towards illegal drugs and alcohol - the most harmful substance of all in terms of addiction. Given that tobacco is responsible for more than 80,000 premature deaths a year and alcohol for about 25,000 - whilst heroin and other opioids account for some 1,500 - rationality would dictate that the first two drugs should become be the main focus or target for the government’s ‘anti-drugs’ policy. But rationality is complete absent from the government’s thinking. Rather, instead, they went for the easy political gesture of closing down head shops and appeasing the rightwing media.
Banning drugs magnifies the problems, never solves them. Some of us take legal drugs, some take illegal drugs - most people like something to get them through the day. Communists want all drugs to be legalised - not further restricted or criminalised. We would much prefer it if even a giant tobacco conglomerate like Philip Morris ran the marijuana industry rather than some underground, criminal organisation - then, at least, the trade would be regulated and all products would be clearly labelled to show their strength or potency, as with alcohol today - you walk into a pub and you know what you are getting.
Drugs should be socialised, not regarded as a matter for the criminal justice system.