Why amendment to the 1971 Act was considered necessary: Magic mushrooms are a powerful hallucinogen and can cause real harm, especially to vulnerable people and those with mental health problems. Estimates indicated that over 400 establishments in this country had been supplying magic mushrooms (mostly imported). The very substantial increase in the commercial sale of magic mushrooms in the UK raised concerns regarding public health, which the Government is fully entitled to address.
The amended legislation: Section 21 of the Drugs Act 2005: amends the 1971 Act to provide that all psilocybe magic mushrooms, regardless of whether they constitute a preparation or a product, constitute a Class A drug. This was achieved by inserting
‘Fungus (of any kind) which contains psilocin or an ester of psilocin’
into Part 1 of Schedule 2 to the 1971 Act. It came into force on 18th July 2005.
It is therefore 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.
When is it not unlawful to possess magic mushrooms? The Misuse of Drugs (Amendment) (No. 2) Regulations 2005 (the 2005 Regulations) outline four situations when it is not unlawful to possess magic mushrooms.
Regulation 2(2) inserts a new regulation 4A (Exceptions for drugs in Schedule 1) into the Misuse of Drugs Regulations 2001 (the 2001 Regulations) to ensure that magic mushrooms are excepted from the offence of possession under section 5(1) of the Misuse of Drugs Act 1971:
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 an 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;
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 (for purposes 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; and
where the magic mushrooms are picked in order to destroy them as soon as is reasonable 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 the above four scenarios, section 5(4)(b) of the 1971 Act already 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 lawfully entitled to take custody of it