HOC 36/2005 Controlled Drugs: Magic Mushrooms

The Circular describes changes to the Misuse of Drugs Act 1971 and to secondary legislation made under that Act which were made by the introduction of Section 21 of the Drugs Act 2005 (see SI 1650/2005) and the introduction of The Misuse of Drugs (Amendment) (No. 2) Regulations 2005 (see SI 1653/2005) and The Misuse of Drugs (Designation) (Amendment) Order 2005 (see SI 1652/2005), all of which came into force on July 18, 2005.

Section 21 amends the Misuse of Drugs Act 1971 by inserting “Fungus (of any kind) which contains psilocin or an ester of psilocin” into Par t I of Schedule 2 to the 1971 Act. This means that the fungi commonly known as magic mushrooms are now Class A drugs. Previously, under the 1971 Act, only psilocin and magic mushrooms which were prepared (for example, dried) or in the form of a product were controlled as a Class A drug. It is therefore now an offence to import, export, produce, supply, possess or possess with intent to supply magic mushrooms whatever form they are in, whether prepared or fresh.

The Misuse of Drugs (Amendment) (No. 2) Regulations 2005 amend the Misuse of Drugs Regulations 2001 and apply to the United Kingdom. The 2005 Regulations provide exceptions from the offence of possession of magic mushrooms with effect from July 18, 2005. The exceptions are:

? Where the magic mushrooms are growing uncultivated. This ensures that persons who have magic mushrooms growing on their land uncultivated will not be acting unlawfully by possessing them in this way (should those persons intend to supply those magic mushrooms they will, however, be committing the offence of possession with intent to supply controlled drugs).

? Where the magic mushrooms are picked by a person, who possesses them lawfully (for example, because they are growing uncultivated on premises they own or occupy) in order to deliver them as soon as is reasonably practicable into the custody of a person lawfully entitled to take custody of them and they remain in that person’s possession for and in accordance with that objective. This ensures, for example, that landowners can pick magic mushrooms growing on their land for the purpose of delivery and, so long as they hold the mushrooms for and in accordance with that purpose, will not be acting unlawfully.

? Where the magic mushrooms are picked in order to either destroy them as soon as is reasonably practicable (purpose of destruction) or deliver them as soon as is reasonably practicable to a person (including a police officer) lawfully entitled to take custody of them (purpose of delivery) and are then held, whether by the person who picked them or by another person, for and in accordance with the purpose of destruction.

? Where the magic mushrooms are picked in order to destroy them as soon as is reasonably practicable (purpose of destruction) and then held, whether by the person who picked them or by another person, for and in accordance with the purpose of delivering them as soon as is reasonably practicable to a person lawfully entitled to take custody of them (purpose of delivery).

In addition to these exceptions the already existing defences provided by the Misuse of Drugs Act 1971, Sections 5(4)(a), 5(4)(b), and 28 still apply. Section 5(4)(a) provides the defence for those who, having fungi in their possession, can prove that they took possession of the fungi knowing or suspecting the fungi to be a controlled drug for the purpose of preventing another from committing or continuing to commit an offence in connection with the fungi and that as soon as possible after taking possession of the fungi they had taken all such steps as were reasonably open to them to destroy the fungi or to deliver them into the custody of a person lawfully entitled to take custody of them. Section 5(4)(b) provides a defence to the offence of possession of a controlled drug where a person shows that they took possession of that drug for the purpose of delivering it into the custody of a person lawful