R v Aziz [2012] EWCA Crim 1063

An application for leave to appeal against a conviction of producing a controlled class A drug and supplying it to another.

The defendant, a qualified practitioner in alternative treatment techniques (a shaman) invited clients to a disused hotel on payment of a fee and there, amongst other processes, he served them with a brew called ayahuasca. The purpose of the ceremony was enlightenment and to provide those present with an opportunity for self-development and the purging of hidden and forgotten difficulties that might have limited their personal development. Ayahuasca is the name of a vine naturally occurring in the Amazon regions of South America. Its botanical name is in shortened form B-Caapi. B-Caapi does not contain the substance which was the centre of this case which is abbreviated to DMT, dimethyltriptamine. However, ayahuasca is also in the context of Amazonian culture a word applied to a brew made from the B-Caapi vine plus other additives. One of the frequent other additives is a naturally occurring substance called charuna. Chacruna does contain DMT. DMT is a class A prohibited drug with hallucinogenic properties akin to LSD.

The applicant sought to raise three questions before the court. The first, was there in law any production? Production is defined in section 37 of the Misuse of Drugs Act and it means “producing by manufacture, cultivation or by any other method.” It is clearly intended to be a non-technical expression and that has been held to be the law in Thornton [2003] EWCA Crim. 3477 and Williams and McCallum [2011] EWCA Crim. 232, the first of them involved naturally occurring mushrooms which had been powdered in order to produce a preparation of psilocybin and the latter concerned diluting a class A drug with a cutting agent, both of which processes were held to be production. The court had not the slightest doubt that making an infusion out of the B-Caapi and the Chacruna amounted to producing by making a preparation. It did in any ordinary language and it did in law. It is not a question of altering the chemical make-up of DMT. It is a question of putting it into a form in which it can be consumed, which is in any ordinary language preparation. So the first contention was unarguable.

The second argument was that the judge was wrong to rule that section 28 of the Misuse of Drugs Act could not be read down in reliance on Article 9 of the European Convention on Human Rights, in order to provide for a defendant a religious exemption from the offence of possessing a class A drug. Article 9 is a qualified right. It contains in paragraph 2 the customary exception: “freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety for the protection of public order health or morals or for the protection of the rights and freedoms of others.” The prohibition on the possession and supply of a dangerous drug, whether class A or otherwise, but certainly class A, is clearly necessary in a democratic society for the interests of public safety, public order and health. The provision to which Mr Aziz was subject was as prescribed by law. The court found the judge was quite right to say that it was impossible to read section 28 in such a way as to provide for a religious exemption. That also followed from the decision of the court in Taylor [2002] 1 Cr.App.R 519 [2001] EWCA Crim. 2263, in which a Rastafarian gentleman asserted a similar exemption in relation to the use of cannabis.

Thirdly, it was submitted to the judge that the prosecution of Mr Aziz was an abuse of process because it would infringe Article 9. The court found that application to be misconceived. Once there was no way of construing the Misuse of Drugs Act so as to contain a religious exemption then it could not possibly be an abuse of process for the court to be asked to apply the law of the land which is all that it was being asked to do. If a religious group, however well established, adopts as part of its rituals a deliberately unlawful act, the fact that it is a religious ceremony does not provide it with legal authorisation. There was not, in any event, in this case any particularly clear evidence that the DMT part of the ayahuasca brew was a necessary part of any religious ritual. That was particularly so since when first interviewed about it the defendant asserted that it could be done perfectly well without the Chacruna and indeed asserted, untruthfully, that he had made it without the Chacruna.

The application was refused

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