Correspondence

Circular 001/2022: Reclassification of GHB and related substances

Published 13 April 2022

A change to the Misuse of Drugs Act 1971: reclassification of Gamma-Hydroxybutyric Acid (GHB), Gamma-Butyrolactone (GBL) and 1,4-Butanediol (1,4-BD) from Class C to Class B.

1. Introduction

This circular draws attention to the contents of the below Statutory Instrument (SI), S.I. 2022/322 which will come into force at 00.01 on 13 April 2022:

• The Misuse of Drugs Act 1971 (Amendment) Order 2022 (S.I. 2022/322)

The Misuse of Drugs Act 1971 (Amendment) Order 2022 reclassifies GHB, GBL and 1,4-BD as Class B drugs under paragraph 1(a) of Part 2 of Schedule 2 to the Misuse of Drugs Act 1971 (“the 1971 Act”).

The SI is available at www.legislation.gov.uk, as follows:

• S.I. 2022/322 - The Misuse of Drugs Act 1971 (Amendment) Order 2022 (legislation.gov.uk)

The SI is also published by the Stationery Office. Telephone orders and general enquiries: 033 202 5070 or online at www.tso.co.uk.

2. Background to reclassification

The 1971 Act controls drugs that are “dangerous or otherwise harmful” when misused, primarily under a three-tier system of classification (Classes A, B and C). This provides a framework within which criminal penalties are set with reference to the harm a drug has, or is capable of having, when misused and the type of illegal activity undertaken in regard to that drug.

The reclassification of GHB, GBL and 1,4-BD, collectively known as GHBRS, under Class B of the 1971 Act is predicated on an assessment of their respective harms and is made in accordance with a recommendation of the Advisory Council on the Misuse of Drugs (ACMD).

The ACMD’s report, “Assessment of the harms of gamma-hydroxybutyric acid, gamma-butyrolactone, and closely related compounds”, said (paragraph 9.4): “In the UK in recent years, GHBRS have been used to facilitate serious crimes, including murder, rape, sexual assault and robbery. Some of these crimes occur in a chemsex context, however this is not exclusively the case.” The report describes criminal cases, which, it says “demonstrate the extreme harm that can be inflicted on others by predators using GHBRS”. The ACMD found that in terms of the use of GHBRS to facilitate crime: “…there is strong new evidence of significant criminal harm from GHBRS, including murder, drug-facilitated sexual assault and robbery.”

The ACMD also found that GHBRS use is associated with a wide range of health harms, including “a marked increase in deaths between 2008 and 2018, and that “there is a strong base of new evidence about the mental health harms caused by GHBRS since the Advisory Council on the Misuse of Drugs last considered their harms.” The ACMD concluded: “There is increasing evidence of physical, mental and social health harms related to GHBRS. Of particular note are the new harms identified since the ACMD last considered GHBRS - severe harm from crimes facilitated by GHBRS and mental health harms associated with GHBRS use.”

The ACMD made eight recommendations in its report. These include that GHBRS be moved from Class C to Class B. The full report, An assessment of the harms of gamma-hydroxybutyric acid (GHB), gamma-butyrolactone (GBL), and closely related compounds, is available.

3. The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2021 (S.I. 2021/1427): rescheduling

The Misuse of Drugs Regulations 2001 (S.I. 2001/3998) (“the 2001 Regulations”) regulate the legitimate access to drugs controlled under the 1971 Act. Such drugs are placed in one of five Schedules to the 2001 Regulations. The Schedule into which a drug is placed is based on an assessment of its medicinal or therapeutic usefulness, the need for legitimate access and the potential harm when misused. Scheduling primarily dictates the extent to which it is lawful to import, export, produce, possess, supply and administer the drugs concerned and imposes requirements around prescribing, record-keeping, labelling, destruction, disposal and safe custody.

The ACMD recommended that GBL and 1,4-BD be placed in Schedule 1 to the 2001 Regulations and further recommended the removal of an exemption from the 2001 Regulations that makes it lawful to possess, produce, supply, import and export GBL and 1,4-BD in certain circumstances, meaning that legitimate industrial users would require a controlled drugs licence. These changes were reflected in The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2021 (S.I. 2021/1427) (“the 2021 Regulations”) which is due to come into force on the 15 June 2022. However, because evidence has emerged that the impact on legitimate business will be larger than had been estimated in the impact assessment accompanying the 2021 Regulations, the government is now exploring ways to mitigate the impact on industry.

4. Annex: Offence recording codes

The codes for recording offences by the police and the courts for statistical purposes within the Home Office Recorded Crime and Ministry of Justice Court Appearance Database (CAD), which includes cautions, are set out below.

GHB, GBL and 1,4-BD should be placed under existing codes relating to “Other Class B” drugs as follows:

• 09225 - Production of or being concerned in production of a controlled drug – Class B - other
• 09245 - Supplying or offering to supply or being concerned in supplying or offering to supply a controlled drug – Class B - other
• 09265 - Possession of a controlled drug – Class B - other
• 09285 - Possession of a controlled drug with intent to supply – Class B - other
• 09325 - Permitting premises to be used for unlawful purposes – Class B - other

Offences under s. 19(2)(a) and 19(2)(b) of the Criminal Justice (International Co-operation) Act 1990 will fall under the appropriate sub-classification code for either Class A, B or C drugs. For GHB, GBL and 1,4-BD the applicable codes are 07754 (possession on a ship of a controlled drug intended for trafficking - Class B), and 07757 (carrying or concealing on a ship a controlled drug intended for trafficking - Class B).

Importation and exportation offences under s. 50(2), (3) & (5) and s. 68(2) & (4)) and s. 170 (1), (2), (3) & (4) of the Customs and Excise Management Act 1979 will fall under the appropriate sub-classification code for either Class A, B or C drugs. Codes 09204 (unlawful import) and 09207 (unlawful export) relate to Class B Drugs.

Forces are required to record seizures of controlled drugs for the National Statistics Drug Seizures publication. The relevant drug code to record GHB, GBL and 1,4-BD seizures is 5900.