- Broad Subject: Crime and Disorder
- Sub Category: Drug offences
- Issue Date: 22/02/2013
- Implementation Date: 26/02/2013
- From: Crime and Policing Group (CPG), Crime Directorate
‘* For more info contact: Cyrille Marcel 0207 035 0618 or email Cyrille.Marcel2@homeoffice.gsi.gov.uk
- Addressed to: Chief Officers of Police (England and Wales),Chief Officer of Police (Northern Ireland), Chief Officers of Police (Scotland)
This circular draws attention to the contents of the above Statutory Instruments (SIs), S.I. 2013/239, S.I. 2013/176 and S.I. 2013/177 which come into force at 00:01 on 26 February 2013.
The Misuse of Drugs Act 1971 (Amendment) Order 2013:
amends the 2009 generic definition of controlled synthetic cannabinoid receptor agonists (‘synthetic cannabinoids’).
classifies: methoxetamine and other related compounds, as well as O-desmethyltramadol, as Class B drugs under Schedule 2 to the Misuse of Drugs Act 1971 (‘the 1971 Act’).
This circular updates the previous Home Office Circular 021/2009 in respect of the synthetic cannabinoids. Methoxetamine and other related compounds are also subject to control as Class B drugs under Part II of that Schedule by way of a generic definition. O-desmethyltramadol is listed under its chemical name, to be subject to control as a Class B drug, in Part II of that Schedule.
The Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2013 amends the Misuse of Drugs (Designation) Order 2001 which “designates” controlled drugs to which section 7(4) of 1971 Act applies, because they have no recognised medicinal or legitimate use. This means it is unlawful to possess, supply, produce, import or export the drugs except under the required Home Office licence for research or other special purposes.
The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2013 amend Schedule 1 to the Misuse of Drugs Regulations 2001 (the ‘2001 Regulations’) where the designated drugs are listed.
The codes for recording drug offences relating to these substances 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 in Annex A.
The SIs together with explanatory memoranda They are also published by The Stationery Office. Telephone orders/General enquiries 0870 600 5522 or Stationery Office online.
The Misuse of Drugs Act 1971 controls drugs that are ‘dangerous or otherwise harmful’, primarily under a 3-tier system of classification (Classes A, B and C) which 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 2001 Regulations regulate the availability of those controlled drugs according to the legitimate uses that are recognised, as applicable, by placing them in 1 of 5 schedules to the Regulations. Drugs which have no legitimate uses are “designated” and placed in Schedule 1 to the 2001 Regulations which means they are subject to the strictest levels of control.
The new control, classification and scheduling of synthetic cannabinoids, methoxetamine and other related compounds by generic definitions, as well as O-desmethyltramadol under its chemical name, are predicated on an assessment of the respective harms that these drugs pose. These are in accordance with recommendations of the Advisory Council on the Misuse of Drugs (ACMD) published in its 2012 reports ‘Further consideration of the synthetic cannabinoids’, ‘Methoxetamine report’ and ‘ACMD advice on O-desmethyltramadol’.
These drugs have been sold as new psychoactive substances (NPS), usually in branded products which often contain a range of compounds (including drugs listed in this circular as well as other drugs which are already subject to control under the 1971 Act). It should be noted that the police can take action where they suspect that branded products contain controlled drugs. Police Forces should refer to the operational guidance published by the Association of Chief Police Officers (ACPO) on policing NPS.
The new range of synthetic cannabinoids
Synthetic cannabinoids are harmful and dangerous NPS. A range of synthetic cannabinoids were first brought under control in December 2009 (see Home Office Circular 021/2009). The harms of the new synthetic cannabinoids have been assessed as broadly similar to those controlled since 2009 being controlled as Class B drugs.
The synthetic cannabinoids captured by the new generic definition are also ‘designated’ and inserted into Schedule 1 to the 2001 Regulations.
On 5 April 2012, methoxetamine (2-(ethylamino)-2-(3-methoxyphenyl)cyclohexanone) became a temporary class drug (see Home Office Circular 008/2012) within the provisions of section 2A of the 1971 Act, pending the ACMD’s advice in relation to permanent control. The ACMD provided full advice in October 2012 confirming that the harms are commensurate with other Class B drugs.
The ACMD has also identified similarly harmful compounds related to controlled drugs ketamine (Class C) and phencyclidine (Class A) sold by ‘legal high’ suppliers. The ACMD has therefore provided a generic definition to capture methoxetamine as well as the other compounds for control as Class B drugs under the 1971 Act, as ‘designated’ drugs and drugs listed in Schedule 1 to the 2001 Regulations.
Methoxetamine will cease to be subject to temporary control (SI 2012/980) when it becomes a controlled Class B drug listed in Part 2 of Schedule 2 to the 1971 Act. This means that all offences and penalties apply in accordance with the 1971 Act, including the simple possession offence, from 26 February 2013.
O-desmethyltramadol (2-((dimethylamino)methyl)-1-(3-hydroxyphenyl)cyclohexanol) is an active metabolite of the prescription only medicine ‘tramadol’. The ACMD has identified that O-desmethyltramadol has been sold as a ‘legal high’ and as an undeclared active ingredient in samples of the ‘legal high’ branded product ‘Krypton’ which has been linked to a number of deaths in Sweden but has not been seen in the UK to date. The harms associated with O-desmethyltramadol are commensurate with those of controlled Class B drugs. This compound is also ‘designated’ and listed in Schedule 1 to the 2001 Regulations, having no recognised legitimate use.
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 as follows:
The new range of synthetic cannabinoids
The additional compounds captured by the new generic definitions of synthetic cannabinoids should be recorded under the existing offence codes for controlled ‘synthetic cannabinoid receptor agonists’ as follows:
- 92/22 - Production of or being concerned in the production of synthetic cannabinoid receptor agonists - Class B 92/42 - Supplying or offering to supply or being concerned in supplying or offering to supply synthetic cannabinoid receptor agonists - Class B
- 92/62 - Possession of synthetic cannabinoid receptor agonists - Class B
- 92/82 - Possession of synthetic cannabinoid receptor agonists with intent to supply - Class B
- 93/22 - Permitting premises to be used for unlawful purposes - synthetic cannabinoid receptor agonists - Class B
Methoxetamine and other related compounds and O-desmethyltramadol
These are to be placed under existing codes relating to ‘Other Class B’ controlled drugs as follows:
- 92/25 - Production of or being concerned in production of a controlled drug - Class B
- 92/45 - Supplying or offering to supply or being concerned in supplying or offering to supply a controlled drug - Class B
- 92/65 - Possession of a controlled drug - Class B
- 92/85 - Possession of a controlled drug with intent to supply - Class B
- 92/91 - Incite another to supply a controlled drug - Class B
- 93/25 - Permitting premises to be used for unlawful purposes - Class B
NB. Temporary class drug offence codes (see annex A of the Home Office Circular 008/2012) should still be used in relation to methoxetamine where the offence occurred before the drug becomes subject to Class B control on 26 February.
Offences under s. 19(a) and 19(b) of the Criminal Justice (International Co-operation) Act 1990 will fall under the appropriate sub-classification code for Class B drugs. Codes 77/54 and 77/57 refer.
Importation and exportation offences under s. 50(2), (3) & (5), 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 Class B drugs. Codes 92/04 and 92/07 refer.