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Chapter Three: Classes and Schedules

Introduction

1 The division of controlled drugs into three Classes is a central feature of the Misuse of Drugs Act 1971 (MDA). The Classes are linked to maximum penalties in a descending order of severity, from A to C. The three-tier classification was designed to make it possible to control particular drugs according to their comparative harmfulness either to individuals or to society at large when they were misused. This was a new departure. In introducing the legislation in 1970, the Home Secretary, Mr. Callaghan, said: [1]

'The object here is to make, so far as possible, a more sensible differentiation between drugs. It will divide them according to their accepted dangers and harmfulness in the light of current knowledge and it will provide for changes to be made in the classification in the light of new scientific knowledge.'

We have given considerable attention to this area because of the importance of getting it right if the law is to be credible, proportionate and just and if it is to be able to support accurate education in the harmfulness of drugs.

-------------------------------------------------------------------------------------------------- The main drugs in Classes A, B and C

Class A
Includes cannabinol and cannabinol derivatives [1], cocaine (including 'crack'), dipipanone, ecstasy and related compounds [2], heroin, LSD, magic mushrooms, methadone, morphine, opium, pethidine and phenylcyclidine.

Class B drugs which are prepared for injection are classed as Class A.

Class B
Includes amphetamines, barbiturates, cannabis (herbal), cannabis (resin), codeine, dihydrocodeine and methylamphetamine.

Class C
Includes anabolic steroids, benzodiazepines, buprenorphine, diethylpropion, mazindol, pemoline and phentermine.

Notes:
1 These include a variety of natural and synthetic cannabinoids, a family of substances based on the same core chemical structure. The most active and potent of these is d9-tetrahydrocannabinol (d9THC), which is the main psychoactive ingredient of all forms of cannabis, although a number of other cannabinoids are also psychoactive.
2 Ecstasy is a synthetic amphetamine derivative, methylenedioxymethylamphetamine (MDMA). It is often confused with related compounds such as ethylenedioxymetamphetamine (EVE) and dioxymethylamphetamine (DMA).
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Penalties

2 The Classes are related to the maximum penalties set out for each MDA offence in Schedule 4. They are therefore central to the MDA's aim of differentiating offences according to the particular drug involved. Maximum penalties are not the standard or average penalty to which offenders are liable in all cases: rather they allow the courts discretion when dealing with individual cases. Very few offences should or do attract the maximum penalty. Nevertheless these penalties must have an influence on the courts. Moreover in the case of trafficking offences involving Class A drugs, there is under the Crime Sentences Act 1997, a mandatory minimum sentence of seven years custody for the third such offence. Putting a drug in a higher Class must therefore tend to result in higher sentences for offences related to it. It is important that a drug's place in its Class is fully justified. We have sought to establish criteria for classification that are as far as possible objective and clear.

Developments since 1971

3 When the United Nations Convention on Psychotropic Drugs was adopted in 1971, the main drugs brought under international control were already listed in the MDA. They had been controlled under United Kingdom legislation since the passage of the Drugs (Prevention of Misuse) Act 1964. Nevertheless numerous additions have been made to the Classes over the years by order. Among these are the inclusion of ecstasy in Class A in 1977, barbiturates in Class B in 1984, certain tranquillisers, particularly the benzodiazepines (temazepam is probably the most often used illicitly) in Class C in 1985 and anabolic steroids in Class C in 1996.

4 Transfers between Classes on the other hand have occurred only twice. The first occasion was the transfer of nicodicodine from Class A to Class B in 1973. The second followed the only full review of the Classes carried out since 1971 by the Advisory Council on the Misuse of Drugs [2]. The Council was broadly satisfied with the classification of controlled drugs. It made only two recommendations: that cannabis and cannabis resin be transferred from Class B to Class C, which was not implemented, and that methaqualone (a sedative) be moved from Class C to Class B, which was.

Criteria for classifying drugs

5 The explicit criteria in section 1 (2) of the MDA are (1) whether the drug is being misused or (2) whether it is likely to be misused and (3) whether the misuse in either case is having or could have harmful effects sufficient to constitute a social problem. There appears to be no explicit criterion for deciding which drugs are more harmful than others and so should go in Class A rather than B or C. The Council, however, deduced that the nature of the mischief to which misuse might give rise was a criterion implicit in the threefold classification and its link to penalties As it said,

'The classification of drugs under Schedule 2 exists solely to determine which scale of penalties shall be applicable to the various offences involving individual drugs. Schedules 2 and 4 together serve as an indication to the police and the courts of the importance which Parliament attaches to dealing with the mischief caused by the misuse of a particular drug’. [3]

Other European countries

6. Although not required by the international conventions, most other European countries divide illicit drugs into Classes but none use the precise division found in the MDA and only three (Italy, the Netherlands and Portugal) relate the Classes to maximum penalties. It seems that it is usually left to the courts to reflect the relative harm of the drug in the sentences passed. In such cases the main purpose served by the classification seems more akin to that of the Schedules to the Misuse of Drugs Regulations 1985, which we discuss below.

--------------------------------------------------------------------
Classification systems in other European countries

Austria, Belgium, Luxembourg - No formal legal classes.

Denmark - Five Classes. A   cannabis, heroin, prepared opium
                                        B   cocaine, ecstasy, amphetamines, methadone
                                        C   codeine
                                        D   barbiturates
                                        E   tranquillisers

Finland - Ten Classes.     Narcotics
                                        I    heroin, cannabis, methadone, morphine, etc.
                                       II    propiram, codeine, etc.
                                      III   preparations containing drugs.
                                      IV   drugs in Class I with no medical uses

                                       Psychotropic substances
                                        I   MDA, LSD, MDMA, etc.
                                       II   amphetamines, THC, etc.
                                      III    barbiturates
                                      IV   benzodiazepines etc.

                                        Precursors
                                        I    ephedrine, lysergic acid
                                       II    acetone, piperidine.

France - Four Classes.     I    hallucinogens
                                       II    amphetamines
                                      III    barbiturates and buprenorphine
                                      IV    benzodiazepines and phenobarbitol

Germany - Three Classes. I    Not for medical or industrial use: heroin, cannabis,
                                              LSD
                                         II    For industrial use but not available on prescription:
                                              coca leaves
                                        III    For industrial and medical use on special prescription:
                                              morphine, methadone.

Greece - Four Classes.     I   cannabis, heroin, LSD and other hallucinogen
                                        II    cocaine, methadone, opium
                                       III    amphetamines
                                       IV    barbiturates, tranquillisers

Ireland - Five Classes.      I    cannabis, LSD, mescaline, opium
                                        II    cocaine, heroin, methadone, morphine
                                       III & IV    other psychotropic substances
                                        V    specific preparations of drugs

Italy - Six Classes.            I    opium, cocaine, hallucinogens, some amphetamines
                                        II    cannabis
                                       III    barbiturates
                                       IV    medicinal substances
                                        V    preparations of substances mentioned at I to III
                                       VI    antidepressants, stimulants

The Netherlands - Two main Classes.
                                         I    Drugs which pose unacceptable risks
                                              opiates, coca derivatives, cannabis oil, codeine,
                                              ecstasy, amphetamine, LSD, etc.
                                        II    Other drugs
                                               cannabis, barbiturates, tranquillisers

Portugal - Six main Classes.
                                         I    opiates, coca and derivatives, cannabis and
                                              derivatives
                                        II    hallucinogens, amphetamines, barbiturates
                                       III    specific preparations
                                       IV    tranquillisers and analgesics
                                        V & VI    precursors

Spain - Drugs placed under control as in UN Conventions

Sweden - Five Classes.    I    narcotics with no medical uses
                                       II    narcotics with medical uses
                                      III    codeine
                                      IV    barbiturates, benzodiazepines
                                       V    narcotics as defined by Swedish law but not restricted
                                              by international convent

Source: ‘Annual Report on the State of the Drugs Problem in the European Union 1997’, European Monitoring Centre for Drugs and Drug Addiction, Luxembourg 1997.
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7 We believe that the present classification of drugs in the MDA should be reviewed to take account of modern developments in medical, scientific and sociological knowledge. The main criterion should continue to be that of dangerousness but the criteria should be made clear. The relative dangerousness of drugs determined by a number of factors, some applying to the individual, others to society. The main justification for controlling drugs lies in the harm that their use causes to society. However, we should make it clear that, as a matter of principle, it is right for the law to take into account harm that drugs cause to users themselves, as well as to other people affected by users or to the community at large. It is widely agreed that there are cases in which the law may properly try to protect people from harming themselves. These are cases - seatbelts and motorcyclists' helmets are examples - in which the damage is serious, almost always comes about unintentionally, and is hard to reverse. This is the kind of risk that is associated in varying degrees with dangerous drugs, and the case is even stronger to the extent that they take away the power of choice. For these reasons, we think, as most people do, that the law should take into account the harms that drugs do to the people who use them. In any case, it is impossible in fact to separate harms to users from harms to others; self-inflicted damage usually results in costs to others. The harm to the individual as a consequence of the pharmacological effects of a drug lends itself best to objective evaluation. Initially at least, this harm is likely to be the best indicator of how strictly a drug needs to be controlled.

8 Personal harm may be assessed on the basis of four factors:

i) risks of the drug itself: acute (short-term) and chronic (long-term) toxicity;

ii) risks due to the route of use;

iii) extent to which the drug controls behaviour (addictiveness/dependency);

iv) ease of stopping.

The relative dangers of each factor vary from drug to drug. For example, heroin is highly toxic acutely but may cause little chronic toxicity provided it is used in a sterile fashion. The benzodiazepines have relatively little acute toxicity but may be difficult to stop taking after long-term use.

Acute toxicity

9 The acute toxicity of a drug determines the risk of death or severe and immediate symptoms following an overdose. Data on the lethal dose that kills 50% of individuals exposed to it (LD50) is available for all illicit drugs expressed as units the drug per kilogram of body weight on the basis of experiments on animals. It is obviously more difficult to estimate the absolute value of the LD50 dose for humans. In terms of units of drug per kilogram of body weight it is probably much lower in humans than in animals, although the same rank order of lethality probably applies as with animals. On the basis of such data it is clear that the risk of overdose is highest for heroin, other opiates and cocaine - all more dangerous than alcohol in this respect. It is lowest for cannabis. Amphetamines, ecstasy, psychedelic drugs and benzodiazepines come somewhere in between.

10 It is also possible to evaluate the safety of drugs indirectly through estimates of mortality rates in the population of users. Although the results are subject to considerable measurement errors, particularly in estimating the number of users, they can give an idea of the relative risks of dying after drug use. We discuss the implications for ecstasy in particular in paragraphs 29 and 30 below.

Chronic health risks

11 This is harder to gauge, especially with drugs that have only recently become popular. More objective measures include mortality and morbidity statistics; less objective ones are clinical expert opinions. The safety approach used by drug regulatory authorities before licensing drugs for clinical use relies on the detection of pathological changes found after chronic administration in animals. Such studies have been done for many of the drugs controlled by the MDA, though not to our knowledge for cocaine, LSD or other psychedelics. On the basis of present knowledge, cannabis may lead in the long term to respiratory diseases in the same way as tobacco. Benzodiazepines present the lowest risks of long-term health damage and the stimulant drugs the highest. The emerging evidence about ecstasy is that it may cause more long-term damage than once supposed. The long-term risks of alcohol and tobacco, however, are also as high as from some illicit drugs. The psychedelic drugs (other than ecstasy) on present (limited) evidence carry fewer chronic health risks. This is an area that needs to be kept under continuing review in order to take account of advances in medical and scientific knowledge as they are made.

Route of use

12 The route of use predicts the nature and severity of the physical damage that a drug can cause as well as its addictiveness. Intravenous use (injecting) dramatically increases the risk of infections when sterile needles and syringes are not available. Many regular intravenous drug users are hepatitis C positive and up to 20% of them will develop progressive destructive cirrhosis of the liver. A variable proportion are HIV positive and will be at high risk of developing AIDS. The exceptional speed of access that injecting gives to many body organs also results in increased risks of acute toxicity and overdose.

13 Drugs which are readily injected are therefore more dangerous than others. They fall into four groups. The first of these comprises opiates, the second stimulants in liquid forms, including ampoules. Third are highly soluble drugs like buprenorphine that can easily be made into solutions from tablets. Finally there are less soluble drugs that are dissolved in solvents (as temazepam in gel capsule form) or temazepam and other benzodiazepines crushed and mixed with water.

14 Other ways of taking drugs have their own risks if taken over a prolonged period. Smoking can lead to lung and heart disease, snorting and chewing to nose and mouth cancer. Even drugs that are swallowed (usually the safest method) may cause stomach cancer.

Dependence and addiction

15 These terms overlap and are difficult to define. Both include a wide range of experiences and phenomena associated with problem drug use. Among them is the process of adaptation to drug use, known as tolerance, which results in the need to take ever larger doses of the drug to achieve the same effect. There may also be unpleasant and sometimes dangerous physical symptoms once the drug is stopped. These withdrawal symptoms are alleviated by taking the drug again. This relief use is a major reason for the continued use of certain drugs. The cycle of dependence becomes stronger the longer the use of the drug goes on.

16 These forms of dependence are known as physical dependence and are associated with all the drugs controlled by the MDA with the possible exception of LSD, other psychedelics and ecstasy. Physical dependence may arise without tolerance and without increasing the dosage. This has been called normal dose dependence and is found particularly in the benzodiazepines. It is, however, hard to measure the severity of the withdrawal symptoms in such cases since they are often confused with the re-emergence of the symptoms of the disorders for which the drug was prescribed.

17 Perhaps what most people understand by addiction is the need to keep on taking the drug for its pleasurable effects. The pleasure that a drug produces leads to the desire to use it again; the effect is called reinforcement. The degree of pleasure relates to the action of the drug on the brain's chemical systems and varies with the chemical structure of drugs even within the same family. This is why heroin gives more pleasure than other opiates such as codeine or buprenorphine. The process by which drug dependence is achieved in this way is termed psychological dependence and in its extreme form is called craving.

18 Physical and psychological dependence are both likely to be present to some extent in the careers of drug users. Research evidence suggests that early in a drug user's career pleasure-seeking is the main motivation for continued use whereas later on the wish to avoid withdrawal symptoms predominates. The propensity of a drug to cause craving and the difficulty that users find in stopping are both therefore important indicators of risk. So is the ease with which the symptoms concerned are re-established if the drug is taken again after a period of abstinence.

Social risks

19 Some forms of social harm are a direct consequence of intoxication, for example road traffic accidents. Others come from addiction and dependence: the drug controls behaviour to an extent that has detrimental effects on all aspects of social functioning. In severe cases this can lead to complete personal collapse with loss of job, family and ability to look after oneself It may also lead to acquisitive crime in order to obtain the funds to buy further supplies of the drug. A third area relates to the medical complications and the costs of treating drug use and dependence.

20 Social harm is hard to quantify. The health care impact is difficult to estimate because the costs of treating addiction are fixed arbitrarily by the availability of treatment resources. Also they are only a fraction of the full medical costs. Unknown extra costs include those due to accidents, infections and mental illness. Other social costs, for example from crime, are hard to measure because it may not always be the drug use that leads to the commission of criminal offences [4]. It is, however, possible to reach a reasoned assessment of relative social harm without precisely quantified estimates. The addictive and dependency potential of a drug can be used to a large extent as a proxy for the social risks - a highly addictive drug will lead to a great deal of social harm.

21 Such evidence as there is suggests that the health and other social costs attributable to illicit drugs are small compared with the health and social costs of tobacco. A recent French study [5] has estimated that 6% of the costs of responding to social problems caused by drugs are attributable to illicit drugs as compared with 40% to tobacco and 54% to alcohol.

Our assessment of the relative harms of drugs

22 We have sought to rank controlled drugs on the basis of the available
pharmacological and other evidence of each drug's likelihood of causing the following physical and social problems:

i) acute (i.e. immediate) physical harm, including the risk of overdose;

ii) physical harm from chronic (i.e. longer-term) use;

iii) ease with which drug may be injected;

iv) likelihood of drug leading to dependence and addiction;

v) physical withdrawal symptoms;

vi) psychological withdrawal symptoms;

vii) risk of social harm through intoxication;

viii) risk of causing other social problems;

ix) risk of medical costs arising.

23 We consulted the members of the Royal College of Psychiatrists' Faculty of Substance Misuse about the relative harmfulness of controlled drugs. We received replies from 29 out of 77 of them. Although we did not ask them specifically how they would classify the drugs concerned, their replies showed a high degree of consensus over the ranking of drugs by harmfulness. No-one disputes the position of heroin and cocaine at the top of the list. Methadone, amphetamines, barbiturates and temazepam when used intravenously are, in the consensus view of those whom we consulted, in the top seven (as is alcohol). Ecstasy, LSD and cannabis come in the last five (below tobacco). Buprenorphine, codeine and benzodiazepines other than temazepam are in-between.

24 Assessing our results in the light of these responses seems to us to point to the following implications for the present Classes. To put things in perspective, we show in square brackets where alcohol and tobacco might come in the Classes if they were drugs controlled under the MDA.
 

Main drugs and their Classes

Class A

cocaine
heroin
methadone
other opiates in pure form amphetamines in injectable form
[alcohol]

Class B

amphetamines other than injectable
barbiturates
buprenorphine
codeine
ecstasy and ecstasy-type drugs
LSD
[tobacco]

Class C

cannabinol and cannabinol derivatives
benzodiazepines
cannabis

Our conclusions on classification

Number of Classes

25 We have considered whether three Classes of drug are still appropriate. One advantage of doing away with Classes altogether would be that attention would focus on the offences themselves irrespective of the drug concerned. Reducing the number of Classes to two on the other hand would enable a clear division to be opened up between the seriously dangerous and the less harmful drugs. This is the approach of the Netherlands, where heroin, cocaine, amphetamines, ecstasy and other drugs described as posing unacceptable risks are on one list while a second list contains cannabis, most barbiturates and most tranquillisers.

26 We are not inclined to abolish the Classes altogether. We consider that the differences between drugs are important, and need to be credibly reflected in our law if penalties are to be proportionate to a drug's harm. We are impressed with the Netherlands' determination to draw a clear and meaningful distinction between dangerous and less harmful drugs; but we doubt whether it accurately reflects the complexity of the situation. The Netherlands claims, with considerable justification, to have created clear blue water between cannabis and heroin. We doubt whether they can make the same claim in respect of other drugs, especially ecstasy, which are widely used in the Netherlands. These seem to us to be in a position intermediate between the highly dangerous and addictive drugs like heroin and the less harmful ones like cannabis. The model of three Classes offered by the MDA enables this to be reflected and we therefore believe that it should be retained.

27 In recommending the retention of three Classes, we also recommend the transfer of certain drugs between Classes in accordance with the analysis in paragraphs 7 to 24 above. We further propose clear criteria for the future to govern additions to and transfers between the Classes.

Transfers of drugs between Classes

28 The analysis above demonstrates in our view the extent to which the MDA's Classes fail to reflect the most up-to-date medical and scientific knowledge. Drugs which seem clearly to be in too high a Class include ecstasy (as suggested to us by the Association of Chief Police Officers (ACPO)), LSD, cannabinol and its derivatives such as d-9 THC, and cannabis. The risks associated with buprenorphine, on the other hand, seem to us to make it appropriate to Class B rather than Class C.

29 We recognise that there will be concern over the prospect of ecstasy being moved to Class B. We understand this. Overall, however, the best estimates of the toxicity of ecstasy and related compounds suggest that they are considerably less dangerous in both acute and chronic use than Class A drugs of the opiate or cocaine type. Although deaths from ecstasy are highly publicised, it probably kills fewer than 10 people each year which, though deeply distressing for the surviving relatives and friends, is a small percentage of the many thousands of people who use it each week. Nor is it always clear whether the deaths are caused by ecstasy itself, another substance taken by mistake for it or in combination with it, or the circumstances surrounding its use - overexertion followed by hyperthermia, dehydration or excessive rehydration. Although ecstasy in high doses can cause such effects directly, in many cases they are due to environmental aspects of the dance club scene, particularly overcrowding, overheating, poor availability of cool-out rooms, and restrictions on or the high cost of drinks.

30 Population safety comparisons suggest that ecstasy may be several thousand times less dangerous than heroin, although the exact figure cannot be established with certainty. There is little evidence of craving or withdrawal compared with opiates and cocaine. Ecstasy and its related compounds do not therefore seem to be as addictive in the same sense as these other more dangerous Class A drugs. These observations coupled with other evidence across the range of factors set out in paragraph 22 persuade us that ecstasy and related compounds are significantly less harmful than the other Class A drugs. We therefore recommend that they be transferred to Class B. We are particularly concerned that having them in the same Class as heroin and cocaine gives a message paradoxically opposite to that intended: regular ecstasy users, knowing that it causes them few ill effects, may make similar assumptions about the other Class A drugs.

31 We have also considered in detail the position in the Classes of cannabinols and their derivatives as distinct from the cannabis plant in its natural state. A variety of substances appears to be covered: there are over 60 cannabinoids identified as unique to the cannabis plant and, in addition, several synthetic cannabinoids are available. There is, however, no evidence of widespread illicit use nor of significant harm stemming from use. The British Medical Association state

'The acute toxicity of cannabinoids is extremely low: they are very safe drugs and no deaths have been directly attributed to their recreational or therapeutic use' [6]

32 The position of benzodiazepines is also problematic. Their intravenous use is one of the more worrying developments in illicit drug use over the past decade or more. Liquid filled or wax capsules are not now easily available in the United Kingdom. But the habit of injecting benzodiazepines remains relatively common, with crushed tablets of temazepam and diazepam in water being the most popular. Efforts should be made to limit the intravenous use of these drugs. Progress has already been made in this direction by the transfer of temazepam to Schedule 3 of the Regulations (see paragraph 44). We wish to await evidence of the effect of this change before recommending further amendments to the classification or scheduling of benzodiazepines. In the meantime, we recommend that the Government encourage the development and manufacture of benzodiazepines in combination with an antagonist, such as flumazenil. This would block the ‘high' when used intravenously but would not affect the therapeutic response when taken orally. We further recommend that doctors are encouraged to prescribe the less abused benzodiazepines and non-benzodiazepine alternatives.

33 We also draw attention to the need for a more appropriate classification of buprenorphine. This is a synthetic opiate painkiller that is less addictive and less likely to lead to overdose than strong opiates such as heroin and morphine. The drug was originally used in low dose tablets for severe pain but higher dose tablets are now available as an alternative to methadone. Buprenorphine tablets can be dissolved in water and injected. For this reason, and because high strength tablets are likely to become more common, we recommend moving buprenorphine from Class C to Class B. However, when buprenorphine is prepared in combination with an antagonist, naloxone, the risk of intravenous use is markedly reduced. We would encourage the use of this combination in preference to the pure tablets and recommend that it remain in Class C when in this form.

34 Given the ranking that alcohol and tobacco have in the order of dangerous drugs, it is an obvious question why they and drugs controlled under the MDA should not be treated similarly: either alcohol and tobacco should be added to the appropriate Classes under the MDA or drugs that are no more dangerous than they should be treated as alcohol and tobacco are now treated. We resist this argument. In the first place, it is simply a fact that the use of alcohol and tobacco is so widespread and familiar that an attempt to prohibit their supply by law would lead to widespread resentment and law-breaking (as happened with the Prohibition experiment in the United States from 1920-33). Conversely, the present law against the drugs controlled by the MDA enjoys widespread public acceptance, with the exception of certain aspects of its operation against cannabis.

35 The cases of alcohol and tobacco are in any case not the same. Smoking tobacco is widely regarded as a bad and dangerous habit. Many who smoke wish they could stop and measures are taken to prevent smoking in public places, to limit advertising and so on. It is a reasonable social aim that the use of tobacco should eventually disappear, even though that aim cannot appropriately be pursued by legal prohibition. Alcohol is a more complicated case. Although it is a dangerous drug and causes enormous social costs and harm, it is also used by many people moderately and non-destructively. It is strictly the misuse of alcohol that needs to be prevented, and while the ways in which this can best be done may be debated, control under the MDA is not one of them.

36 In summary, therefore, we recommend:

i) the transfer of ecstasy and related compounds from Class A to Class B;

ii) the transfer of LSD from Class A to Class B;

iii) the transfer of cannabinols such as d-9 THC from Class A to Class C;

iv) the transfer of buprenorphine from Class C to Class B [7];

v) the transfer of herbal cannabis and cannabis resin from Class B to Class C.

Future criteria

37 The MDA itself indicates certain criteria for classifying drugs in section 1 (2), namely whether a particular drug is subject or likely to be subject to misuse sufficient to cause a social problem. Since misuse is in effect defined as the taking of a drug by an individual, both individual and social harm are involved. The existence of three Classes linked to penalties suggests that the nature and seriousness of the individual and social harm concerned are important criteria for determining whether a particular drug is placed in Class A, B or C. But the Act is not specific on how individual or social harm should be measured or on how the cut-off points between Classes should be determined. The Advisory Council were unable to be more specific in their 1979 report [8], nor did they explain on what basis they concluded that the then Classes were broadly acceptable.

38 The assessment of some features must remain subjective but we believe that it is possible to reach an objective estimate of relative harmfulness by assessing drugs against the following factors (discussed in detail above):

i) their potential for leading to dependency and addiction;

ii) toxicity;

iii) risk of overdose;

iv) risk to life and health in longer term;

v) injectability;

vi) association with crime;

vii) association with problems for communities;

viii) public health costs.

39 Class A drugs will normally demonstrate most (not necessarily all) the above factors to a high degree. The benchmark drugs are heroin and cocaine and if comparison with other drugs suggests that they pose equivalent risks then there should be no hesitation in putting them in Class A. Class A should be seen as containing the most dangerous and harmful drugs.

40 Class B drugs will also display one or more of the factors listed above but not as many nor to the same degree. The benchmark drugs are the amphetamines and the barbiturates. These drugs are all harmful but not to the extent of the drugs to be found in Class A. To put the risks in context, if alcohol and tobacco were assessed for control under the MDA using these criteria, alcohol would be classed as B bordering on A, while cigarettes would probably be on the borderline between B and C.

41 The drugs in Class C will score relatively low on the factors listed and demonstrate fewer of them. That is not to say that they are harmless, but on any reasonable scale of risk they must rank lower than other drugs. While controls are justified, offences involving them should not attract penalties as high as the drugs in Classes A and B.

Relationship of Classes to Schedules in the Misuse of Drugs Regulations 1985

42 The Classes in Schedule 2 to the MDA are often confused with the Schedules to the Regulations made under section 7. There are indeed interactions but the main purpose of the Schedules is quite different. They are part of Regulations whose intention is to ensure that the appropriate exemptions are made from the offence provisions of the Act. The Regulations therefore:

(i) identify those who may handle particular drugs (e.g. doctors, pharmacists, police officers, patients, and in some cases anyone);

(ii) describe the circumstances in which drugs may be handled (e.g. possession on prescription, general authority to supply);

(iii) control the purposes for which a particular drug may be applied (e.g. retail pharmacy, laboratory use, treatment);

(iv) regulate where a drug may be produced or supplied (e.g. a laboratory or a nursing home).

In these ways the Regulations ensure that legitimate activities are exempted from the relevant offence provisions of the MDA. What the Act prohibits, the Regulations allow.

43 The Schedules to the 1985 Regulations work as follows:

Schedule 1 lists drugs that may only be used under licence for medical or scientific research. The drugs in this Schedule include ecstasy, LSD, raw opium, psilocin, cannabis and cannabis resin.

These drugs, which come from both Class A and Class B, are also designated separately by order under section 7 (4) as drugs whose production, supply and possession is unlawful except for purposes of research or other special purposes.

The drugs in this Schedule, irrespective of whether they are in Class A or Class B, are not available on prescription. Except under licence their importation, exportation, production, possession and supply are offences.

Schedule 2 specifies the drugs to which a number of controls over prescription, secure storage, and record keeping apply. It is the longest Schedule in the Regulations. The drugs contained in it are a mixture of Class A and Class B drugs but the requirements are the same regardless of Class.

The drugs in this Schedule include amphetamine, cocaine, heroin, methadone, morphine, pethidine and quinalbarbitone.

The drugs in this Schedule may be prescribed and lawfully supplied and possessed
when on prescription. Otherwise supply and possession, together with importation, exportation and production, are offences except under licence.

Schedule 3 lists drugs to which a less elaborate range of controls applies. More paperwork and tighter security precautions are needed for Schedule 2 drugs than for those in Schedule 3. The drugs contained in this Schedule include most barbiturates, buprenorphine, diethylpropion, mazindol, phentermine and temazepam.

These drugs can only be possessed lawfully by a person with a prescription. Uniquely, the prescription requirements for temazepam are less stringent than for the other drugs in the Schedule. Because it is exempted from Regulation 15, the same prescribing requirements apply to it as when it was a drug in Schedule 4.

Schedule 4 lists drugs which may be lawfully possessed by anyone, even without a prescription, provided they are in the form of medicinal products. They are subject to far fewer administrative controls or criminal sanctions.

The Schedule is in two parts. Part I includes anabolic steroids. Part II includes the benzodiazepines (except temazepam) and pemoline.

Schedule 4 drugs may be lawfully possessed by anyone, even without a prescription, provided they are in the form of medicinal products. The drugs in Part I may also be lawfully imported or exported if they are in the form of such products for self-administration. The drugs in Part II may be freely imported or exported whether they are in the form of medicinal products or not.

Schedule 5 contains very weak preparations or products which may be freely imported, exported or possessed. Authority is, however, needed for production or supply.

44 Moving a drug from one Schedule to another may have the effect of making possession of that drug a criminal offence when previously it was not, or vice versa. Thus for example the unauthorised possession of temazepam is now a criminal offence under section 5 of the Act by virtue of its transfer from Schedule 4 to Schedule 3 of the Regulations. At the same time it was exempted from Regulation 15, which meant that the relatively tight prescription requirements of the MDA were inapplicable. Temazepam was and remains obtainable only on prescription but the rules that apply are those of the Medicines Act 1968 not the MDA. Had the MDA requirements applied, an unacceptable extra burden would have been placed on doctors, who prescribe substantial amounts of temazepam. When flunitrazepam was similarly transferred from Schedule 4 to Schedule 3 in 1998, there was no similar exemption made from Regulation 15.

45 It is also possible to transfer by regulation a drug from a more to a less restrictive Schedule. This was done with dronabinol (synthetic THC in sesame oil), which can alleviate some of the adverse effects of chemotherapy. It used to be treated as a cannabinol derivative, a Class A drug that appeared in Schedule 1 of the Misuse of Drugs Regulations 1985. It therefore could not be prescribed by doctors - its only possible legitimate use was in research licensed by the Secretary of State. Following the advice of the World Health Organisation, the United Nations Commission on Narcotic Drugs amended the 1971 convention in such a way that the United Kingdom Government was able to move dronabinol to Schedule 2 of the Regulations. This means that doctors can prescribe dronabinol on a tightly controlled basis. If other cannabinols are to be made available for therapeutic use, a similar process will need to be followed. Herbal cannabis and cannabis resin, however, could be moved from Schedule 1 to Schedule 2 without prior action by the World Health Organisation and United Nations because they are less rigorously controlled under the 1961 convention [9].

Early warning and monitoring

46 We envisage that the Advisory Council for the Misuse of Drugs will continue to be the body that has the statutory responsibility for considering and making recommendations to Ministers on the classification of new drugs and for keeping the existing Classes under review. It is not clear how much attention it has given to the latter since 1979. Nor is it clear from its 1979 report [10] whether it considered the factors we have discussed above and if so what weight it gave them. We recommend that future reports from the Council should clearly state its methods and findings on such matters.

47 We have seen no evidence of effective early warning arrangements in the United Kingdom. Nor do they appear to feature in the national strategy. There seems to have even been a step backwards: information from the Department of Health's regional data bases reaches the centre with greater delay than used to be the case with notifications to the Chief Medical Officer at the Home Office. A reliable and fast-working system is badly needed to identify new drugs that may be causing problems and need to be brought under control, perhaps through special arrangements for emergency scheduling. The latter need arises particularly from the speed and ease with which new synthetic or 'designer' drugs can be manufactured and marketed. Good early warning systems are also required to keep track of changing trends in the use of existing drugs [11], particularly the emergence or re-emergence of prescription drugs on a scale that may lead to serious health and social problems and so possibly to a need to reconsider their classification under the MDA.

48 Effective early warning arrangements exist in the Netherlands (where the arrangements for pill testing help early identification of substances that may pose risks) and in the United States. The main systems of drug warning and monitoring in the United States are:

i) The Drug Abuse Warning Network (DAWN), sponsored by the Department of Health and Human Services. Using reports from representative hospital emergency departments and coroner's offices, it monitors trends in drug-related episodes and deaths, the health consequences of drug use, and changes in its nature and extent.

ii) Arrestee Drug Abuse Monitoring (ADAM), funded by the United States National Institute of Justice. This provides information on the extent of drug
use in the offender population and on the relationship between drug use and crime.

iii) The twice-yearly Pulse Check reports on national trends in illicit drug use and markets issued by the White House Office of National Drug Control Policy. These are based on information from a variety of people working in the drugs field and aim to provide timely information about changes and trends as they develop.

49 We recommend that the Government study the United States and Dutch systems with a view to establishing an early warning system in this country that:

i) comes under the responsibility of a single national body;

ii) collects and collates information speedily from the relevant national and local agencies, including the police, health services, drug advisory and treatment agencies, and the Drug Action Teams;

iii) incorporates a network of local and regional bodies responsible for identifying emerging trends in drug use in their areas and for reporting them to the national body. This role might well be performed by the Drug Action Teams.

We recognise that a start has been made in the new arrangements for drug testing of persons arrested by the police. But we do not believe that an early warning system that relies solely or mainly on information about drug use among offenders can be comprehensive or fully effective. And there remains the need to bring information from a variety of sources under one central body.
 

Footnotes:
1. ‘Hansard’, House of Commons, 25th March 1970.

2. ‘Report on a Review of toe Classification of Controlled Drugs and of Penalties under Schedules 2 and 4 of the Misuse of Drugs Act 1971’, London, Home Office 1979.

3. See paragraph 3.7 of the report cited in the preceding note.

4. The evidence for the association between drugs and crime is assembled in ‘Drug-driven Crime: A factual and statistical analysis’. London, NACRO 1999, and discussed further in this report in Chapters Two (paragraphs 5 and 6), Seven (paragraph 19) and Eight (paragraphs 2 to 9 and 14).

5. P. Kopp, ‘Le Cout Social des Drogues Licites (Alcool et Tabac) et Illicites’, Paris, OFDT and MILDT 1999.

6. ‘Therapeutic use of cannabis’, Amsterdam, Harwood Academic Publishers 1997, page 65.

7. We understand that buprenorphine may become available in combination with naloxone, making it safer to use. We would be content to see that combination included in Class C.

8. See paragraph 4.

9. See Chapter Seven, paragraphs 62 to 64.

10. See paragraph 4.

11. See H. Parker, C. Bury, R. Egginton ‘New Heroin Outbreaks Amongst Young People in England & Wales’, Police Research Group Crime Detection and Prevention Series Paper 92, London, Home Office 1998, pages 9-11