Circular 008/2013: temporary class drug order on NBOMe and benzofuran
This draws attention to the contents of the above Statutory Instrument (SI), S.I. 2013/1294, which comes into force on Monday 10 June 2013.
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- broad subject: Crime and disorder
- issue date: Tues 4 June
- from: Crime and Policing Group (CPG) - Drugs and Alcohol Unit
- sub category: Drug offences
- implementation date: Mon 10 June
- for more info contact: Joseph Ponan 0207 035 6069
Copies sent to:
- The Association of Police and Crime Commissioners
- Association of Chief Police Officers (England, Wales and Northern Ireland)
- Association of Chief Police Officers in Scotland
- Judicial College
- Magistrates’ Association
- National Bench Chairmen’s Forum
- Chief Officers of Police (England and Wales)
- Chief Officer of Police (Northern Ireland)
- Chief Officers of Police (Scotland)
- Clerks to the Police Authorities
- Chief Executive of Her Majesty’s Courts & Tribunals Service
- Director of Crime
- Delivery Directors
- Heads of Crime
- Cluster Managers
- Regional Support Units
- Crown Court staff
- Magistrates’ Court staff
- Clerks to the Justices
- Royal Courts of Justice - Court of Appeal (Criminal Division) staff
- Lord Chief Justice
- President of the Queen’s Bench Division
- Senior Presiding Judge for England and Wales
- Lords Justices of Appeal
- Presiding Judges
- High Court Judges
- Queen’s Bench Division
- Crown Court Judges
- Resident Judges
- District Judges (Magistrates’ Courts)
- Chairmen of the Justices
- Council of Circuit Judges
Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2013 (S.I. 2013/1294)
This circular draws attention to the contents of the above Statutory Instrument (SI), S.I. 2013/1294, which comes into force at 00:00 on Monday 10 June. The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2013 subjects 25I-NBOMe and 5- and 6-APB and their related substances, including some of their simple derivatives (except esters and/or ethers), to temporary control under the Misuse of Drugs Act 1971.
These substances (including specified simple derivatives) have no recognised medicinal use, therefore the Order applies the Misuse of Drugs Regulations 2001 to these drugs as if they were controlled drugs to which Schedule 1 of the Misuse of Drugs Regulations 2001 and the Misuse of Drugs (Safe Custody) Regulations 1973 applied. This means that it will be unlawful to supply, possess with intent to supply, produce, and import or export these substances except under licence. The Order further applies the Misuse of Drugs Regulations (Northern Ireland) 2002 and the Misuse of Drugs (Safe Custody) (Northern Ireland) 1973 to these substances in the same manner.
A temporary class drug order expires at the end of twelve months unless the substance is earlier brought under the permanent control of the 1971 Act by virtue of an Order in Council under section 2(2) of the 1971 Act, or if the temporary class drug order is varied or revoked.
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 – for the NBOMe and benzofuran substances (and their specified simple derivatives), are set out in Annex A. The SI together with explanatory memoranda can found at http://www.legislation.gov.uk. They are also published by The Stationery Office. Telephone orders/General enquiries 0870 600 5522 or online at http://www.tsoshop.co.uk/. A copy of this circular can be found at: https://www.gov.uk/government/organisations/home-office/series/home-office-circulars-2013.
The Misuse of Drugs Act 1971 (“the 1971 Act”) controls drugs that are “dangerous or otherwise harmful” primarily under a 3-tier system of classification (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.
Section 2A and 2B of the 1971 Act provides that the Secretary of State may make an order (a “temporary class drug order”) if two conditions are met. The first condition is that the substance is not a Class A, B or C drug. The second condition is that the Secretary of State has either consulted with the Advisory Council on the Misuse of Drugs (“the ACMD”) and has determined that the temporary class drug order should be made, or otherwise has received a recommendation to that effect from the ACMD. After carrying out such consultation the Secretary of State can only proceed to make the order if it appears that the drug is one that is being, or is likely to be, misused, and that misuse is having, or is capable of having, harmful effects. A corresponding requirement applies before the ACMD may make a recommendation.
A framework of criminal offences similar to those under the 3-tier classification, but excluding the offence of simple possession, applies to drugs that are subject to temporary control. The maximum penalties for supply, production or importation/exportation of temporary class drugs are, on indictment, fourteen years’ imprisonment and/or an unlimited fine, and on summary conviction, six months’ imprisonment and/or a prescribed fine (including, for the latter offences, a fine determined by the value of the drugs if greater than the prescribed amount).
Specific temporary class drugs
The NBOMe substances
25I-NBOMe (2-(4-Iodo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine) and other related substances (the NBOMe substances) are variants of the 2C-X series of the psychoactive phenethylamines, which are currently controlled as Class A drugs under the 1971 Act, by generic definition. The ACMD’s assessment indicates that these substances are highly potent hallucinogens and are probably regarded as alternatives to LSD. The ACMD recommends urgent action because of the high risk of overdose in powder or liquid form, and a report from the Serious Organised Crime Agency of large quantities entering the UK. The ACMD have highlighted that to avoid the risk of overdose by users, some suppliers have sold the NBOMe substances in the form of perforated pre-loaded paper doses (‘blotters’ and ‘tabs’).
The benzofuran substances
The benzofuran substances, 5- and 6- APB (1-(benzofuran-5-yl)-propan-2-amine and 1-(benzofuran-6-yl)-propan-2-amine) and other related substances including 5-IT and 6-IT (2-(1H-indol-5-yl)-1-methylethylamine and 2-(1H-indol-6-yl)-1-methylethylamine), are phenethylamine-type materials related to Class A drugs ecstasy (MDMA) and 3,4-methylenedioxyamphetamine (MDA). They are commonly sold under the brand name ‘Benzofury’ and marketed as a legal form of MDMA, available in the form of powders or tablet (although the latter is referred to as “pellets” to avoid overt suggestions that it is for human use). The ACMD advise that some users experience adverse effects, including MDMA like symptoms. Several deaths and hospitalisations in the UK have been associated with these compounds, albeit mostly with other drugs.
The ACMD advises that the harms associated with these two groups of substances are significant enough to warrant to temporary control. The ACMD’s advice on the two groups of substances can be found at https://www.gov.uk/government/publications?departments%5B%5D=advisory-council-on-the-misuse-of-drugs.
As the Order also applies the Misuse of Drugs Regulations 2001 and Misuse of Drugs Regulations (Northern Ireland) 2002 as if these substances were controlled drugs specified in Schedule 1 to these Regulations, the effect is that the supply of these substances can only take place under a licence.