Class A for ayahuasca: looking for loopholes leads to UK’s first ayahuasca supply conviction

By Darryl Bickler – Solicitor and founder member of the Drug Equality Alliance, darryl@drugequality.org* written especially for this site Bristol Crown Court, 2^nd September 2011: Peter Aziz, a self-proclaimed experienced healer and shaman, was sentenced to 15 months in prison for producing and supplying a class A drug. The drug concerned was DMT, which is a key component of traditional ayahuasca. Peter Aziz used his homemade version of the sacrament in healing ceremonies for paying members of the public. Peter said that he spent four years in the jungles of Peru learning the art of making it, and he provided his own preparation of the brew during a week-long retreat in Somerset in 2007. He is now the first person convicted in connection with ayahuasca production and supply in the UK.Peter Aziz was secretly filmed by the BBC through the involvement of an undercover doctor, Charles Shepherd, who attended a ceremony. Aziz was recorded as he told a participant that they could direct their energies to target cancers whilst experiencing the effects of the brew (http://www.bbc.co.uk/news/uk-england-bristol-14762782). I was informed by a close friend of Peter that he took the required precautions, instructing participants in advance to avoid alcohol and other drugs, and to follow a suitable dietary regime. The idea of sacredness was said to be imbued throughout, and contra-indications with medications explained. Participants were said to be either experienced drinkers or invitees under the wing of an experienced drinker.The fallout of this case has revealed some concerns about Peter’s practice, methods, and claims from some in the wider community itself, perhaps from practitioners determined to distinguish their own actions from his. There appears to be little concern from the wider public about persons using the sacrament. This essay will not critique the claims or methods Peter Aziz employed; I do not consider we need first to judge the man, but rather to judge the administration of law that brought him to trial in the first place. When I met Peter less than a week before he was imprisoned, I found him sincere and modest; I do not profess to know anymore than that about the truth of his alleged skills and abilities. What I consider we ought to be open to, however, is the possibility that there is truth in his art. To a cynical observer, all religions require a belief in the impossible. What we must appreciate now is that what is believed by some to be the giving of the sacred incarnation of Mestre Irineu in a drink for Santo Daime followers is the illegal supply of a class A drug in the eyes of others.Aziz was tried with unquestioning deference to what many consider to be a biased and unenlightened administration of the drug misuse law by the UK government, and his fate may now await others. Our quest must now be to radically raise our understanding of the relationship between religious belief & practice, human rights, and the law to rescue vital freedoms from the clutches of ignorant politicians.Aziz may have been pretty much in the same situation no matter what his level of qualification, sincerity of belief or claims were. There is no “religious defence” as such to supply drugs; it’s going to be tough to argue for one in the UK. Perhaps it was unhelpful to Aziz that he was inferred to be a charlatan, and he was reported to be inconsistent when giving evidence. I’m told that he was kept for hours in uncomfortable conditions before his police interview, and that he was under considerable duress. Aziz first argued that he didn’t know his brew contained DMT; later he agreed that it did, but argued that what he was doing was legal anyway. In my experience, defendants are frequently cajoled by circumstance and their lawyers to contrive to present their conduct in a fashion that might excuse them, but at worst this negates almost any possibility of a court actually believing them. We should now focus on the point that Aziz was on trial for allegedly producing and supplying DMT, not for concerns that he might be fraudulently holding himself out as a therapist or shaman. While the details of his activities strike some as questionable, foolish or exploitative, the core of the matter is that he was convicted of producing and supplying DMT because the court, rightly or wrongly, found that he did supply it, in the form of ayahuasca. There are no current legal justifications whatsoever for individuals to produce or supply DMT in the UK, except for licensed activities of approved scientific and medical researchers stringently administered via the Home Office. These categories of potentially exempt groups, as a matter of policy (not primary law), do not extend to any personal research or self-experimentation. Religious rights have not to my knowledge yet been acknowledged as bona fide grounds for exemption, though the Home Office has the power to issue a licence for sacramental ceremonial use.At trial, Peter through his counsel, raised preliminary legal arguments concerning the uncertainty of the law concerning what are “preparations” of drugs/plants. He questioned if ayahuasca could ever be a controlled substance. He also sought to argue that his human rights to freedom of religion under Article 9 of the European Convention of Human Rights were violated. He argued that Section 28 of the Misuse of Drugs Act ought to be interpreted to allow Article 9 defences (as otherwise it seeks to curtail the defences available to defendants). These points were argued in a pre-trial Abuse of Process argument, and written submissions were made in advance. Various legal cases and letters were submitted to support this claim of legal uncertainty. The hope was to reveal the ambiguity of the law, and this was supported by personally addressed replies from the Home Office that revealed their ambivalence about the actual legal status of preparing ayahuasca (http://www.bialabate.net/wp-content/uploads/2008/08/Home_Office_Letter_Aziz_2007.pdf). The judge refused outright to consider the details of any technical legal argument. While I cannot agree with the judge’s ruling, future defendants might consider other options if they want to risk maintaining a not-guilty plea based on these arguments, which the court can so readily dismiss. I am introducing ideas here to work towards a new strategy. This argument seeks to tell the whole story as to why people find themselves in this unsatisfactory situation.If there is no legal argument, then perhaps at this point the final outcome of any trial will be a foregone conclusion: A perverse verdict from a jury is a very unlikely outcome given the control that judges have over trials. The judge said he was sorry to have to imprison him, but that Aziz knew that what he was doing was “wrong,” and his hands were effectively tied: small consolation for Peter, his family and friends. The accusation of criminality took well over three years to result in conviction, and this makes his imprisonment this month seem even more unjust.Some defence approaches seem to be flying in the face of common sense; I can see why, from the jury’s perspective, they would consider the “preparation” argument to be vexatious. What is a true preparation of a controlled substance, and whether preparing Psychotria viridis into a concentrated solution with other plants could ever truly be a “preparation” of DMT, or just a simple extraction of a non-controlled plant, have been dealt with at length in courts before. The precedents are not generally helpful, but there is certainly ambiguity. We should, of course, know the limits at the edge of legality: The edge of legality is the interesting bit! Perhaps Mr Aziz should have walked free on the grounds of uncertainty alone, but the Court’s swift dismissal of these arguments in this case was perhaps a turning point, and an opportunity to evaluate approaches for future trials, such as the imminent cases against members of the Santo Daime Church in the UK (https://web.archive.org/web/20110909092029/http://www.thisissouthdevon.co.uk:80/Police-quiz-following-sacred-drugs-swoop/story-11707657-detail/story.html). The question for the few Santo Daime defendants now awaiting trial is whether their credentials of having a demonstrable membership of a recognised religion will be accepted as being protected under Article 9, thus presenting a novel defence of “religious necessity.”There is another particularly insidious and tediously lengthy prosecution in progress for the supposed offence of incitement to produce a class A drug (DMT) by a person unconnected with Santo Daime. The offence supposedly being committed is the supplying of non-controlled plant material (Mimosa hostilis root bark) while concurrently posting instructions for making extractions online for others. This incitement charge seems far fetched, and, of course, Mimosa hostilis is not a controlled substance in itself; yet some people seem determined to expand the law to curtail even the most eclectic and peaceful of interests with entheogenic plants. There is a danger that entheogen dealers will be depicted as sly drug dealers circumnavigating detection and the law. Perhaps even Santo Daime will be portrayed as a drug trafficking, drug pushing cult and may become the target of a witch-hunt and thus be destroyed in Britain. The stakes are very high, and I consider that there is danger in relying on the sincerity of religious practice as a solid approach to allow the courts to excuse what otherwise would be serious criminal matters.While Aziz’s conviction creates a persuasive (not binding) precedent that is unhelpful to anyone arguing on broadly the same grounds again, his legal team have already applied to overturn it at the Court of Appeal. There was some expectation that they might await the outcome of other cases, but there is a very tight deadline for the appeal court to receive applications (28 days from conviction, not sentence). Someone else might raise a challenge in another case in one of the higher courts and strike a blow for the recognition of Article 9 rights. I would encourage defendants to use incisive arguments criticising the administration of law by a government who made it absolutely impossible for them to have even the possibility of being a licensed practitioners. Perhaps this will change soon. Perhaps the government will realise that what they are doing is unsustainable, but I doubt it, unless we get to grips with the underlying principles of administration of the primary law.I think a whole new defence argument with greater depth and understanding is required. We need to show how we came to be in this mess in the first place by explaining what the government has done with our noble Misuse of Drugs Act. Why are peaceful activities being targeted while the most harmful are being ignored? Prosecuting persons for drinking sacrament is targeting the most peaceful of “drug users” while concurrently ignoring completely the monumental harms caused by other forms of tolerated drug misuse, all this under an “outcome-based” neutral law. There must be some equality of treatment based upon rational criteria. This comment isn’t leading to a philosophical or even a political discussion; it is a demand for the Rule of Law to address the scourge of all drug misuse, by all persons, and to respect the privacy of the peaceful users of all drugs.Aziz, in effect, argued for an interpretation of law that would exclude the supply of a potent brew containing DMT. In this case, the court adopted an ordinary dictionary definition to the terms “preparation” and “product”, and while it may be legally argued that this is incorrect (a preparation of a drug is arguably distinct from a preparation of plants), the judge refused to listen. The message is that persons hoping to benefit from a claim to a legal uncertainty will have only themselves to blame if they find they are on the wrong side in a court of law. Perhaps the hope that many drinkers hold is the entheogenic equivalent of distinguishing tax avoidance from tax evasion, the former being an everyday acceptable practice; the latter, criminal. My concern is that the loopholes afforded to creative accountancy will not be mirrored in the unregulated business of production, importation, and distribution of what are deemed to be class A drugs.The court imagines that the law is there to stop the use of the drug (actually using ayahuasca is a legal act in itself, the drug law controls only property rights in controlled substances). It simply seems unconscionable that a prosecution should fail on technical arguments alone, and defeat the perceived essential objective of the law. It is actually the wider understanding of the entire drug law and it’s objectives that must be confronted in my view. I consider these perceptions about the purpose of the law to be incorrect, and only a true reflection of policy, not the will of parliament; more about that later.In one narrow sense I agree with the court in Aziz’s case; that arguing about the uncertainty of meaning of a “preparation” of a drug is a reactive excuse for the predicament of being caught, and being accused of such extreme criminality. It can clearly be shown that the law, as it is currently administered, aims to address all supply of DMT no matter how peaceful, and to that extent it is a knowing risk that many are taking. When the worst fear becomes real, and a person is arrested, many defendants find themselves powerless and easily manipulated by lawyers. They are cajoled into participating in a courtroom charade. This is simply because they see no other way out of their vile predicament. Who benefits? Only the lawyers do, making more money from this perpetual war on persons who wish to use some drugs. The best that lawyers seem able to achieve in virtually every drug case in the UK are some mitigating points. Many are sincerely doing their best, but few seem to understand the issue of liberty, and few are prepared to argue for equality of administration and application of the law (that is to say equivalence with the rights of users of other drugs such as pharmaceuticals and alcohol, tobacco, etc). Few really seem to have a clue about the true nature of cognitive liberty and the rights to freedom of thought, conscience, and religion. Few lawyers seem to have any understanding of sacred plant entheogens and what they represent. To my mind, none of these legal arguments, save “cognitive liberty,” (http://www.cognitiveliberty.org/) and the associated religious freedoms have any semblance of actual truth or integrity. I agree we should define our freedoms and seek certainty by drawing lines between legal and illegal actions, but the lines we are trying to negotiate (and it is barely a negotiation on equal terms) are artificial, and in truth are an affront to any legitimate concern about controlling the misuse of potentially harmful drugs.But how did we get to this state of affairs? What sane system would force defendants to put their lives in the hands of lawyers who have little or no knowledge, other than the rules of a stacked game that they cannot expect to win? We should caution against being drawn into playing the role of canny defendant in these witch-hunt trials. Persons with interests in entheogenic plants at court are being led into a convoluted deception that ultimately achieves what the police and government are trying to achieve: to make them look like shady drug dealers who will contrive anything to escape responsibility. Ayahuasca drinkers often claim there is little DMT in their sacrament, and perhaps think that this is a fair defence (Aziz did not argue this point), but weak brew is likely to be a weak legal argument, as the de minimis principle would not apply if DMT could be detected in anything more than trace amounts. It just doesn’t strike me as appropriate to argue that the sacrament brewed is weak, akin to a bottled shandy drink that can be sold in sweet shops as it contains infinitesimal amounts of alcohol. Ayahuasca is psychoactive!Human rights arguments have enabled some organisations to make progress on their own terms overseas, yet my view remains that seeking exemptions to the law based upon the level of sincerity of recognised religious practice alone is an ultimately ill-conceived defence approach from a libertarian perspective. What is it that precedes belief? How does a person come to want to be a devotee of Santo Daime? Is it not the thought that precedes the belief; a thought that was triggered by closing the loop between the physical and the spiritual dimensions by the sacred use of DMT?I distinguish the criminal defence discussion from the discussion regarding seeking of a licence to use DMT, as in this case the licence is a pro-active approach aimed at satisfying the authorities that there is no unworthiness on the part of the licence applicants, or justification for refusal. However, drawing lines between what are the worthy and unworthy uses of sacramental drugs as a means of voiding criminal liability retrospectively arises out of the civil failure of government to make reasonable and fair provisions in the first place. Now, defendants are compelled to argue for an unequal application of criminal law based upon entitlement, and this on the questionable scale of religious formality and sincerity. Yet, these issues are not rooted in divisive entitlements that apply to the few, but as rights that are universal in character. While we can agree to sensible regulation, this is not the same as determining entheogenic formal privileges as criminal defences to charges that for others would be very serious crimes. The question should always be what justification is there for the denial of rights, not how do persons justify an entitlement to rights.The same narrow issues as claims for medical uses and religious exemptions are mirrored in countess cannabis cases and appeals; trying to draw lines between the activities of some as legitimate and necessary. Is this not the same misguided and limited form of thinking that the authorities try to achieve through their view that only recognised religions, or recognised medical uses, can be tolerated? But recognised by whom? In truth, probably almost any use of cannabis can be construed to be medical, spiritual, religious or whatever. The boundaries of what is genuinely religious are only legally objectified through evidence of structure and formality, and such constructs may be an anathema to individual devotees engaged in personal study and growth. What is acceptable “medical use” to a doctor may be narrowly defined and finite; it likely does not take cognisance of the sum total of human experience with healing. Medicine is as much about belief and self-determination and choice of treatment as it is about any submission to western methodology. Sadly, the doctor who infiltrated Aziz’s ceremony commented to the press after Aziz’s imprisonment that he was pleased at the result. Perhaps the medical profession would be better to continue to embrace research and new ideas, as these practitioners boldly declare.(http://www.guardian.co.uk/politics/2011/sep/05/psychedelic-therapy-war-on-drugs).The failures of some special case (entitlement) arguments are rooted in the principle that the court recognises that adjudicating the legitimacy or illegitimacy of subjective claimed justifications is in itself an impossible line to uphold. While the credentials of an organisation such as Santo Daime are fairly easy to discover, for others, qualification for exemption would be almost entirely dependent upon what a group or individual says about themselves; they are not presenting truly objectively identifiable parameters. Yet, many seeking entheogenic freedom have been drawn into accepting arbitration between supposedly legitimate and illegitimate cases where these distinctions are in truth fluid and elusive to map. It’s likely that “religious use” of drugs will be deemed to be a worthy exception to a legitimate wider ban at some point, and that qualification for exemptions is fairly determined by being part of recognised groups, so yes, devotees may win a special dispensation one day. What would be real progress, however, would be if these recognitions would embrace at least some universal principles of liberty. Do we want to run an argument for the few that implies that there is no such thing as a legitimate private activity for a lone shaman or small discrete groups of psychonauts?Personally, I am concerned about “thin end of the wedge” special cases approach to securing entheogenic freedom. Certainly, I am against elitism and privilege before the law; in my view we should focus on universal rights and principles. United we stand, divided we fall. We don’t want to be adopting a “holier than thou” or a “needier than thou” approach to pushing our interests ahead of the general populace. This is not a mandate for a free-for-all with all psychoactive substances. We should argue for equality for all potentially harmful drugs, and that means persons ought to be treated with proportionate interference with respect to their activities. The threshold for interference ought to be social harm, and indeed this is the criterion specified in the Misuse of Drugs Act.The law actually sets up all the apparatus for a properly licensed system of manufacture, distribution, and selling of all drugs. Indeed, contrary to government policy, the law enables the Home Office to make separate regulations and licence options for different classes of persons (not organisations) with respect to different types of drugs for different purposes. It does require that the designation of DMT under section 7(4) of the Act be revoked, but that is all part of the ongoing administrative duty of government to make provisions to target drug misuse, not all use. These distinctions for acceptable use are not limited to specific medical and scientific purposes as the government claim. Of course, the government doesn’t actually want to admit they should issue these licences to the public for interests in controlled drugs; they claim to be tied to international treaties, even though the INCB has exempted ayahuasca from the 1971 Convention on Psychotropic Substances. When one organisation of drinkers approached the Home Office, they got short shrift and were denied even the possibility of acceptance. Refusal of a licence should not be the end of the matter, we usually expect he government to say “no.” The government is, after all, fettering themselves to a policy of prohibition. These refusal decisions should be challenged properly through the courts. They are the unhappy outcome of legal misconstruction and rigid adherence to non-incorporated treaties (eg the UN Single Convention on Narcotic Drugs 1961) that the government agreed to tie themselves to. Such treaties do not bind the courts, nor do they bind parliament. The resultant prohibitionist policy is submitted to be contradictory to the object of the Misuse of Drugs Act itself, and contrary to the principles of lawful administration under common law and human rights.As far as the rights of persons wishing to conduct and participate in ayahuasca ceremonies are concerned, substances which are currently unregulated (officially) are subject to the same absence of consumer protection problems as concern the sale of all entheogens, “controlled drugs,”, and the so-called “legal highs” (psychoactive plants and drugs that have not yet been scheduled). Yes, many people stay under the radar and want to keep it that way, but I don’t see this as a sustainable position: The genie is out of the bottle and we live in a free-market economy that perhaps is not suited to control such sacred and important matters neutrally. This is not a problem caused by the persons concerned with entheogens, for they are responding to a war declared on them via a policy that seeks to quash their full existence. Persons are compelled to adopt a secretive or deceptive policy to try and avoid any criminal liability, and this applies to the most noble and sincere ceremony as much as it does to the more questionable activities such as selling non-controlled ecstasy substitutes. The problem is that secrecy, “discrete packaging,” and improper labelling are anathema to accurate and essential product information and consumer protections. Selling plants as fabric dyes, incenses, smudging materials, and “not for human consumption” to avoid any incitement charges concerning production of a controlled drug, or civil liability following a misadventure, may be a necessary evil to enable access to otherwise unobtainable commodities, yet it is also madness. Even allowing what are fringe religious groups a free reign has clear potential for abuse. It is a well-documented irony of prohibition that there is a paradox of consequences concerning harms related to drug misuse caused by the inability to deal with these activities properly and openly. In the case currently being prosecuted for incitement to produce "class A" drugs, the prosecution argue that the very giving of information on how to use the Mimosa hostilis actually creates the offence. This absurdity makes the entire practice of “keeping below the radar” potentially unconscionable. We need reform, and we need it now.Government recognises that there is a problem, and we see their knee-jerk responses with these adventurous prosecutions trying to curb hitherto presumed lawful activities. Unless there is real progress to rescue some due process and personal liberty in all of this, the outlook is bleak. Real progress will not come from arguing the finer points about what stage a plant becomes a drug, whether it is a preparation, a decoction or an infusion; we all know that ayahuasca is a serious undertaking. Lawyers seem to prefer these narrow arguments rather than to approach the subject in a broad fashion, yet there is something rotten at the core of the administration of drug user law, something that cannot be addressed by articulating arguments for special case exemptions.It is my view that the Act of Parliament we have in the UK is actually a pretty decent law. It seeks to adapt to expert evidence and make all kinds of regulations that sensibly differentiate between the activities of misusing drugs that cause social problems from those activities that do not. The law is used as a tool of prohibition in its current incarnation, and that is the political mandate transposed into law, yet this tool of outright exclusion for some drug users is at odds with what parliament legislated for (the addressing of social harms caused by all drug misuse). It is for this reason that I believe that there must be a possibility of a legal challenge highlighting the dubious administration of the law, as distinct from challenging the primary law head on or looking for loopholes.My preferred approach is to work with the true spirit of the Drug Equality Alliance (http://www.drugequality.org). We aim to squarely address the legal errors inherent within the government’s administration. This is not perhaps the time to detail our legal arguments, but, in outline only, we consider that the regulatory apparatus in the Act is being ignored through errors of law. Their error is to flip the subject and object of control under the Act with the result that persons have the status of illegality because they are effectively akin to an illicit drug by their association with it. There is no such thing as an unlawful or even a controlled object: This is how they mislead us all and deny our rights. We are slaves to a policy that believes it controls drugs, when, in truth, the law is only engaged when a threshold is crossed via drug misuse. Such misuse must be demonstrably an antisocial human activity. Without a negative outcome, there is no proportionality of interference (or equality) to justify any criminality, or even suspicion of criminality.I think it is time to take stock: The choices we make now are of perhaps historic importance for the liberty of humanity. The right to a religious belief and practice vests in the ability to have free thought, and that is not a divisible commodity. We cannot, in truth, regulate ayahuasca; we can only regulate persons with respect to it. We can only achieve sensible regulation once we free ourselves from the illusion that the law can create illegal or illicit substances. Such upside-down ideas negate the possibility of ayahuasca drinkers having human rights. In the eyes of the law, drinkers’ rights are entirely negated by their status before the law by being linked to absolute illicitness. This is a denial of all civil rights for drinkers because the self as a legal entity is reduced to property, and the “property” is the subject of prohibition. It is why I compare this plight to slavery. I say to all supporters of freedom for the peaceful use of entheogens: Let our integrity, and our truth become the light to lead others from their dim view of humans who choose this peaceful and different path.