Trip over?
“The law is madness,” says Labour MP Paul Flynn. “It seems to have been written by somebody who was on a hallucinogenic drug.” The law he is describing is the 1971 Misuse of Drugs Act as it applies to magic mushrooms, the naturally occurring fungi whose legal status is about to be tested in a series of court cases. The Home Office has suddenly decided to get tough and a business that has, well, mushroomed in the past two years will soon find out whether it has a legitimate future.
Mushroom sellers are confused. Two years ago, the Home Office sent out a letter advising them of their legal position. “The growing of psilocybe mushrooms and the gathering and possession of them do not contravene the Misuse of Drugs Act 1971,” stated the letter unequivocally. “It is not illegal to sell or give away a growing kit as the mushrooms themselves are not controlled. It is not illegal to sell or give away a freshly picked mushroom provided that it has not been prepared in any way.” Recipients of the letter took it as a green light to sell fresh mushrooms and there are now an estimated 400 “shroom shops” in the UK.
The distinction between a fresh mushroom and one that has been prepared is crucial. A psilocybe mushroom is one that contains the hallucinogen psilocin and its byproduct psilocybin, both of which are deemed to be Class A drugs under the 1971 Act. It is not an offence to possess or consume a mushroom because it occurs naturally, but any “preparation” or any attempt to turn the mushroom into a “product” (the pending cases will hinge on the definition of those words) could constitute the supply of a Class A drug. Maximum sentence: life imprisonment. The most common effect of taking magic mushrooms is an extended fit of the giggles, but for sellers it is no longer a laughing matter.
The Home Office has been steadily rowing back from the position it laid out in that letter in May 2002. Paul Galbraith, a director of Psyche Deli, one of the biggest companies in the market, says the letter’s signatory, Ian Breadmore, “was never heard from again – he seems to have been banished to the South Pole.” But the latest guidelines make especially stark reading for retailers: “If fresh magic mushrooms are packaged as a product and are offered for sale, that is unlawful and those who are selling the mushrooms are unlawfully supplying a product containing psilocin and/or psilocybin. The Home Office judges that a mushroom that has been cultivated, transported to the marketplace, packaged, weighed and labelled constitutes a product and therefore its sale is unlawful.”
Applied literally, that would in effect rule out all trade in magic mushrooms, which at present are being commercially cultivated, transported by wholesalers all over the UK, weighed and bagged up for sale, and sold openly in shops and on market stalls. Even grow-kits, which allow you to grow your own mushrooms, appear to be ruled out under the Home Office advice – a grow-kit, by definition, means cultivation. All that would leave is the picking of naturally occurring mushrooms for personal use.
“The Home Office don’t make the law,” points out Psyche Deli spokesman Chris Territt. “Just because they say it is illegal doesn’t mean it is illegal.” But the tougher guidelines have led to a rash of arrests by police force across the country, and at least half a dozen cases involving magic mushroom sellers are pending – three in Birmingham, one in Gloucester, one in Canterbury, another in Redhill, Surrey. The first is scheduled to come to court next month.
One retailer who fell foul of the law – though the case was eventually dropped – is Andy Burgess, who runs the Headz “alternative gift shop” in Folkestone. Burgess, a former builder, is 61 and admits to being “the oldest swinger in town”. His shop, with its blue and purple frontage, is an exotic exception to the drabness of the rest of the town. It smells of incense, has a large reclining Buddha in the window (a snip at £650) and is plastered with leaflets for psychic fayres, hypnosis, spiritual healing, clairvoyance, Indian head massage and medieval fencing. Strangely, there is also an advertisement for a model railway exhibition.
In late September, Burgess had a visit from the local police – and they hadn’t come for details of the Indian head massage. “When I arrived here in the morning, there were two vans and a policeman hovering around my door,” he recalls. “I said, ‘Do you want to speak to me?’ He said ‘I’m afraid so.’ With that, they came in after me as if I was some sort of crook trying to hide things away somewhere. There were at least eight policemen – they were like a SWAT team. Two or three of them had plastic gloves on and they went through everything.
“I said, ‘What do you want?’ He said, ‘I want your mushrooms. Where are they?’ I said they’re in the fridge. They ended up taking my fridge, all my invoices, all my paraphernalia regarding mushroom selling. He gave me a dressing down and said they were trying to change the law. I said, ‘The law hasn’t been changed so why are you doing this?’ He said, ‘It’s all procedure, we’re working for the Crown Prosecution Service.’ ”
Burgess was arrested on suspicion of supplying a class A drug and spent the rest of the day in the cells. He was interviewed, then bailed, but a few days later he was told that the case had been dropped. No explanation or apology was offered. “I can’t understand it,” he says. “I can’t understand why they’re hassling people.” Burgess sells a range of replica firearms in his shop. These do not seem to have excited the interest of the police, who were solely interested in the small bags of shrivelled-looking mushrooms in his fridge. “I want your mushrooms” is a splendidly bathetic opening line for any policeman.
Burgess has been selling magic mushrooms for seven or eight months. He sells to a wide range of users (is that a loaded term?). “I get teachers, even policemen coming in to buy them,” he says. “Most people don’t buy them in large quantities; they buy a small amount and share them with their friends to have a giggle. I sell them in 30-gram bags, which is the maximum dose for any one person, but if you do half of it you just get a giggle out of it basically. It’s a laugh. Things may look a bit surreal, but that’s as far as it goes. It’s quite harmless.”
Not everyone agrees. “Magic mushrooms are potentially dangerous,” insists Professor John Henry, an expert in toxicology at Imperial College and St Mary’s Hospital, London. “They clearly cause hallucinations. The hallucinations are usually short term, but there is a danger of flashbacks.” Professor Henry says mushrooms have contributed to several deaths, with people suffering hallucinations being killed in accidents, and argues that flashbacks can be disastrous if they occur when a person is driving or operating machinery.
There are also physical effects. “They can make you sick, get very scared and make your blood pressure go up,” he says. “I advise people never to take magic mushrooms as a form of escape. I tell them your hang-ups will always chase you. You’ll feel persecuted. The effects vary according to your mood and how experienced you are in taking them. Experienced users might just feel a bit trippy, but naive users may feel sick, spacy, quite ill. It is also frightening if they are fed to you without you knowing. That can be very scary.”
Mushroom sellers refuse to accept that mushrooms can do long-term damage. Psyche Deli, for example, was started by people who enjoyed taking mushrooms and decided to turn their hobby into a business. They quote a Dutch scientific report that claims mushrooms are safe, and are annoyed that the government appears, over the past two years, to have changed their mind about allowing mushroom selling to develop commercially. “We never set out to do anything illegal,” says Galbraith. “We asked all the requisite authorities what we able to do, and it looks like many other traders did the same. Over the past two years, although nothing has actually changed in the law, the Home Office’s interpretation appears to have changed. Why have they changed their interpretation when the law hasn’t changed?”
Territt is baffled that it appears to be the increased size and organisation of the business – the Home Office is especially exercised by the growing volume of imports, mainly from Holland – that has triggered the clampdown. “That’s the insane thing,” he says. “Why take action now that it is starting to get regulated and people are taking a responsible attitude to ensuring that there’s good-quality product and that people don’t take too much?”
Paul Flynn, Labour MP for Newport West, is critical of the tightening of the rules – and of the government’s drug policy generally. In May, he wrote to Home Office minister Caroline Flint asking for a clarification of the law on magic mushrooms. Her reply showed how far the Home Office had moved away from its original view that “preparation” meant a change in the physical nature of the mushroom – turning it into a tea, a paste or a powder, for example, to make the effect of the psilocin more concentrated.
“In the Home Office’s view,” Flint told Flynn in a letter dated 3 June 2004, “a form of preparation and production has occurred by the sale of magic mushrooms in marketplaces and shops or at other sale points. Accordingly, those selling, or seeking to sell, the mushrooms at such premises are unlawfully supplying a product containing psilocin and/or psilocybin. My officials are in contact with the enforcement agencies about how the law can be more effectively enforced.”
In other words, the very act of selling them constitutes “preparation”, though the news does yet appear to have penetrated the Metropolitan police, who have so far taken no action in London, where magic mushrooms are sold openly in street markets. When I visited a stall in Portobello Road, business was fairly brisk, with family groups clustered round the stall choosing from among the mushroom varieties – Mexican, Colombian, Hawaiian, Thai. Christmas is a busy time, apparently, with grow-kits rivalling iPods as the must-have present last year.
Flynn is scathing about the government’s handling of the issue. “It’s crazy: if you pick them, that’s legal; if you keep them overnight, that’s illegal because they dry out. The effect of magic mushrooms is minor compared with other drugs. There is a market for them and it would be better to allow it to operate. There are plenty of medicinal drugs that cause far more damage than magic mushrooms. But there are no signs of any intelligence in drug policy from the government. When they say the word ‘drugs’, you can be sure that the word ‘tough’ won’t be far behind.”
Though coming at the question from a position diametrically opposed to Flynn and supporting a ban on their cultivation, Professor Henry, too, believes the law has become hopelessly confused. “They’re not a food – VAT has to be paid on them – so what are they? They’re in some other category, but nobody seems to know what.”
The VAT issue is vexing to mushroom retailers. In February, one wrote to Customs and Excise to ask whether he should be charging VAT. They said he should and were then embarrassed when he made the letter public. It appeared that they were levying a tax on a “product” which the Home Office wanted to ban. Joined-up government it wasn’t.
“We did state that fresh mushrooms were subject to VAT,” says Customs and Excise spokesman Paul Matthews, “but we are also aware of the Home Office view that their packaging for sale is illegal. We take the view that magic mushrooms are not a food, they’re a drug, but we are really waiting for case law on this.” Mushroom retailers argue that, if VAT is being levied, the product per se cannot be illegal, but Matthews’ assessment will come as a rude shock to them. “Just because something is illegal doesn’t mean that it can’t be taxed,” he explains.
The mushroom industry is irritated that the Home Office has refused to countenance a change in the law, and is instead trying to nudge police forces into action and then waiting to see what the judges decide. It wants to outlaw the sale of magic mushrooms by precedent in the courts rather than by discussion in parliament.
“If someone was going to make policy on this, then there would be a debate,” says Territt. “Even if it was a government that wasn’t sympathetic, there would be a debate, but currently there is no debate. There is the crown prosecution service, but the crown prosecution service is not a relevant authority to be making health and safety and drugs policy. That’s not how these things should be handled. No political party can touch the 1971 Misuse of Drugs Act because it would take more than four years to reform. That basically means we will never have a sensible drug policy in this country, and as someone for whom drugs have been a positive part of their life for their entire life, that’s incredibly frustrating.”
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