This Circular draws attention to the contents of the above Statutory Instrument (SI), S.I. 2015/1396, which came into force at 00:01 on Saturday 27 June 2015.
The Misuse of Drugs Act 1971 (Temporary Class Drug) (No. 2) Order 2015 subjects ethylphenidate, 3,4-dichloromethylphenidate (‘3,4-DCMP’), methylnaphthidate (‘HDMP-28’), isopropylphenidate (‘IPP’ or ‘IPPD’), 4-methylmethylphenidate, ethylnaphthidate and propylphenidate, and their simple derivatives, to a temporary class drug order under the Misuse of Drugs Act 1971.
The listed methylphenidate based compounds (and their simple derivatives) have no recognised medicinal use, therefore the Order also 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 ethylphenidate, 3,4-dichloromethylphenidate (‘3,4-DCMP’), methylnaphthidate (‘HDMP-28’), isopropylphenidate (‘IPP’ or ‘IPPD’), 4-methylmethylphenidate, ethylnaphthidate and propylphenidate, and their simple derivatives, except under licence issued by the Home Office.
A temporary class drug order expires at the end of twelve months unless, if earlier, the substance is 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 listed drugs (and their simple derivatives), are set out in Annex A.
1. Background 1.1 Summary Overview 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. Under section 7A of the 1971 Act, the Secretary of State may also make provision (which may take the form of applying any provision made under sections 7(1), 10 or 22 of the 1971 Act) so as to allow for the lawful production and supply of a temporary class drug and provision for preventing misuse including safe custody.
A framework of criminal penalties 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 offences relating to temporary class drugs are - on indictment for supply, production or importation/exportation fourteen years’ imprisonment and/or an unlimited fine; on summary conviction, for supply, production or importation/exportation, six months’ imprisonment and/or a prescribed fine (including, for the latter, one determined by the value of the drugs if greater than the specified amount).
Ethylphenidate, 3,4-dichloromethylphenidate (‘3,4-DCMP’), methylnaphthidate (‘HDMP-28’), isopropylphenidate (‘IPP’ or ‘IPPD’), 4-methylmethylphenidate, ethylnaphthidate and propylphenidate are closely related to the Class B controlled drug methylphenidate. The AMD’s assessment is that these drugs are harmful and dangerous. The pattern of harmful effects reported include anxiety, paranoia, visual disturbance, chest pain, a strong urge to re-dose, bizarre and violent behaviour, loss of fine motor control, a high risk of bacterial infection and local tissue damage. Ethylphenidate has also been reported in 5 post mortem reports between 2013 and 2014, and implicated in two other deaths in the same period.
The ACMD advises that the harms associated with the misuse of ethylphenidate and the other methylphenidate-based compounds are significant enough to warrant temporary control. The ACMD also reports that these compounds have no legitimate industrial or medicinal uses, though there may be some limited use for research purposes. As the Order also applies the Misuse of Drugs Regulations 2001 as if these compounds were controlled drug to which Schedule 1 of the 2001 Regulations applied, the effect is that the use of these compounds for research can only take place under a Home Office licence.