In this guest post, Dr Les King and Rudi Fortson Q.C. highlight how the last government’s meddling in legislation regarding cathinones, including mephedrone, at this time last year has generated confusion for forensic scientists and legal practitioners regarding the precise placing of some cathinones within Class B. It is a problem that is only now being addressed.
Instead of accepting the generic definitions of cathinones drafted by members of the ACMD that would cover all the various types of cathinones, the Home Office took the unusual step of changing the legislation to specifically mention mephedrone to ‘send a message’ to the public, presumably in response to the (unfounded) hysteria over mephedrone use by young people. In taking this course, one variant of methylmethcathinone (mephedrone) was listed in one sub-paragraph of Part 2 of Schedule 2 to the MDA, while other variants of methylmethcathinone were listed in another sub-paragraph, thereby generating confusion. Logically, all variants of that substance ought to have been classified as a single group. To understandhow this came about requires a little more understanding of the chemistry of cathinones.
Dr King explains: The crux of the problem is peculiarly technical, but rests on the existence of mephedrone isomers. While mephedrone is 4-methylmethcathinone , both 2- and 3-methylmethcathinonecan also exist. To distinguish those different isomers is a challenging task for a laboratory, and certainly cannot be done by the routine methods used in drug analysis. That is where well-crafted generic control is so useful: all three isomers can be controlled without ever mentioning them by name in the Act or needing to be analytically-specific about which one has been found in a questioned sample.
That advantage was lost following Home Office tinkering. Eventually, following many discussions between the forensic science community and the CPS, a legally acceptable work-around was concocted. Yet that legal fudge could only be a temporary measure, which is why the Government has announced that the original clauses in the Modification Order of 2010 will now be replaced with what should have been there in the first place. This is a clear case of government acting without a clear understanding of the issues. Instead of supposedly protecting the public from harm with the controlling of mephedrone, the previous government unnecessarily weakened legislation for political gain.
However, whilst recognising the advantages of generic descriptions from a technical point of view, Rudi Fortson has expressed a note of caution. For him, the law should not only be precise but it should also be clear and capable of being understood by lawyers and non-lawyers alike. There is a risk that various substances, readily identifiable by their popular name (such as “mephedrone”), will be lost in the language of chemistry, making it difficult for non-chemists to identify, when reading the MDA, which drugs are controlled and which are not.