Ayahuasca has a rich and complex history and is recognized as part of Peru’s national cultural heritage but recently, the juggernaut of globalization has spurred an expanding international interest. Religions using it ritually have established worldwide branches, while a larger and more diverse public is encountering ayahuasca through ceremonies offered by both traditional healers and Westerners.
Although it is impossible to acquire accurate figures, ayahuasca has been used within the UK since at least 1998, with several active groups and perhaps thousands of drinkers (Lawn et al., 2017; Harvey, 2014). However, Western attitudes toward ayahuasca are frequently decontextualized from the generations of human wisdom from which it emerged.
Regulation of plant psychedelics is complexly interwoven with the legacy of pharmaco-centric legislation and existing structures of social power and control (Tupper, 2017). The use of indigenous sacraments in nations dominated by modern medical orthodoxy presents several challenges, and the reality of the legal situation is fraught with uncertainty. While ayahuasca is technically not subject to international control, lately, the number of related arrests and prosecutions has rapidly escalated, particularly in the UK and other European countries.
This chapter aims to trace a path through the competing and culturally-informed constellation of laws, legal cases, appeals, and debates that, in conjunction, inform how ayahuasca has arrived at its present legal position, as well as what the future potentially holds.
The Misuse of Drugs Act 1971 (MDA) is the UK’s primary drug control legislation, and divides all controlled substances into three schedules; ostensibly, according to their harmfulness (Section 1.2). Since the MDA’s inception, N,N-dimethyltryptamine (DMT)—the main psychoactive chemical in ayahuasca—and other controlled psychedelics have been listed in Class A. Hence, they attract the most severe penalties, despite the absence of a scientific evidence base to justify this classification.
The MDA has been frequently criticized and was labeled as “unfit for purpose” in an excoriating report from the House of Commons Science and Technology Select Committee (2006). In fact, two ex-members of the Advisory Council on the Misuse of Drugs (ACMD) co-authored a well-cited paper showing a lack of correlation between drugs’ harms and their classification within the MDA, highlighting “especially striking” discrepancies in relation to psychedelics (Nutt, King, Saulsbury & Blakemore, 2007, p. 1052). The law has been further undermined by recent politicized amendments criminalizing substances directly against government-commissioned expert advice (Global Drug Policy Observatory, 2014; Klein, Metaal, & Jelsma, 2012). Regardless, the MDA is, de facto, the primary instrument for determining the legal status of ayahuasca.
In Schedule 2, the MDA lists purified freebase compounds. Paragraphs 2–4 control other chemical forms, including isomers, esters, ethers, and salts, while paragraph 5 covers “any preparation or other product containing a listed substance” (so that tablets or solutions are covered). Neither “preparation” or “product” are defined in the MDA, but the international conventions that it ratifies give the following meanings: “one or more psychotropic substances in dosage form,” “a mixture, solid or liquid, containing a drug,” or “separation of [controlled substances] from the plants from which they are obtained” (Single Convention on Narcotic Drugs, 1961, 1961, Article 1; Convention on Psychotropic Substances, 1971, 1971, Article 1).
Although DMT is found naturally in a staggering variety of organisms, there is no mention of ayahuasca, Banisteriopsis caapi, Psychotria viridis, or any other common admixture plants in the MDA. Furthermore, the International Narcotics Control Board (INCB) has confirmed that there are no international controls for ayahuasca, nor any plants or fungi that contain controlled substances (Schaepe, 2001). Despite this, prosecutors have attempted to argue that organisms that contain traces of Class A substances are controlled drugs, due to falling under paragraph 5’s “preparation” or “product.” While legal definitions do not exist in societal isolation, this “definition creep” (Walsh, 2017) has expanded the reach of this statute far beyond its original intention: “Those with power have the privilege of making their labels stick” (Beckford, quoted in Sandberg & Catto, 2010).
It is valuable to review some of the case law pertinent to ayahuasca from Walsh’s (2015, 2017) perspicacious summaries in the previous volume and elsewhere. DPP v Goodchild (1978, paragraph 582) ruled that plants containing listed substances are not controlled under the MDA unless explicitly listed. However, R v Stevens (1981) held that, once powdered, Psilocybe “magic mushrooms” had been “altered by the hand of man to make them into a condition in which they could be used.” Since they contain psilocin, a controlled Class A drug, they were deemed a “preparation” and therefore a controlled substance. In R v Cunliffe (1986) and Hodder & Matthews v DPP (1990), dried mushrooms and packaged frozen mushrooms were also deemed a “preparation.”
However, following a 2003 Home Office circular (Breadmore) that clarified “it is not illegal to sell or give away a freshly picked mushroom,” British vendors began openly selling vast quantities of magic mushrooms, resulting in an industry with 250,000 yearly users (Breadmore, 2003 “Magic mushrooms ban becomes law”, 2005). Mainstream media were quick to sensationalize the unregulated sale of psychedelic fungi, pressuring police forces into taking action despite the Home Office advice. From 2004, there were several raids of mushroom sellers after the government suggested they were “unlawfully supplying a product containing psilocin and/or psilocybin” (Bishi, 2004).
In a later-replicated trend, there was little consistency in the actions taken against mushroom sellers; some cases were quickly dropped, while others were vigorously pursued in the criminal courts (Verkaik, 2004). Due to the conflict with the official guidance, and the fact the government was collecting £1 million in taxes each year, (Hansard, 2005a, c1542), the resulting criminal cases ended with mass acquittals.
In R v Mardle & Evans (2004), Recorder Miskin stayed the indictment saying, “somebody should not be jailed on an ambiguity.” At Canterbury Crown Court, Judge Williams held that “there is something fundamentally unfair” in prosecuting people while also collecting revenue from imports. She concluded, “What is ultimately fatal to this prosecution is that there was no clear exposition that unprepared mushrooms of this type were illegal” (R v Francis & Francis, 2005). In a third case, the judge at Birmingham Crown Court was “abundantly satisfied” that the law was too unclear and stayed the proceedings (R v Harrison, Ibrar & Page, 2005).
Berridge (2003, p. 519) has shown how “much drug control legislation [is] the result of wide power politics,” while Chomsky (Smith 2002, para. 9) claims, “the criminalization of certain substances is a technique of social control.” It is instructive to note that following the acquittals, it was argued in Parliament that mushroom sellers had been “exploiting a loophole” (Hansard, 2005b). As a remedy, legislation was swiftly enacted prohibiting “Fungus (of any kind) which contains psilocin or an ester of psilocin” (Drugs Act, 2005, 2005, section 21). In a common law jurisdiction like the UK, understanding the existing case law is essential to a meaningful appreciation of any legal situation. By retracing the arguments used in the mushroom prosecutions, we can see how the legal fate of ayahuasca is inseparable from that of other natural psychedelics.
Shortly after magic mushrooms were scheduled, there were further legal battles along parallel frontlines that hinged on how “preparation” and “product” are defined. One of the most influential cases followed after 4.69 kg of dried and chipped Trichocereus peruvianus cactus were seized in a 2006 raid and criminal charges were brought after the Crown claimed that it was a controlled “preparation” or “product” of mescaline. At Kingston Crown Court, the defense barrister made three points: that the dried cactus had merely been preserved, and therefore did not constitute a “preparation”; that the government could only levy VAT on licit sales; and that advice from the Home Office had been misleading. Making reference to the mushroom cases, Recorder Wood stayed the proceedings as an abuse of process, stating, “it is my view that the law is not sufficiently clear or certain” (R v S, 2007). After a lengthy ordeal, the defendant was finally exonerated. His treatment might also seem somewhat unfair considering there were hundreds of shops openly selling mescaline-containing cacti in the UK at the time. I was able to contact others who faced raids and arrests and the resultant criminal proceedings were far from consistent.
In one case, an individual was remanded in custody after being found in possession of 150 g of San Pedro cactus. He spent seven months on remand before his lawyers discovered the Kingston judgment. After they used the same arguments, all charges were dropped. In another case, two students who had ordered 900 g of powdered peyote were raided and charged with importing a Class A drug. It took over a year for the case to be heard, but the judge swiftly dismissed the prosecution saying, “in my judgment this particular law is not clear or unequivocal at all, rather the reverse” (R v Smith & Tate, 2011, p. 3).
In Bristol, police intercepted powdered San Pedro cactus sent by a Peruvian vendor. The suspect had his passport, mobile phone, and computers seized, and was advised to expect a seven-year custodial sentence. However, upon presenting a Home Office Drugs Licensing and Compliance Unit email that stated San Pedro was not controlled, all charges were dropped, with the police saying, “case law has been consulted and no offence has been committed” (anonymous source, personal communication, 2010).
In what has become a familiar motif, I have also found numerous instances in which legal enforcement of natural entheogens has been unpredictable and inconsistent. The following cases regarding the DMT-containing shrub Mimosa hostilis (frequently used as an alternative ingredient in so-called “ayahuasca analogs”) expose disparities in state responses to those working with ayahuasca-related plants.
One Mimosa seller in Manchester was kept under surveillance before being raided but, eventually, Chief Inspector McLachlan took no criminal action, admitting that the plant itself is not controlled and that “there is no straightforward legislation to affect the sale of the products of this company” (“Boss of Doctor Herman’s,” 2010). Instead, police resorted to the unorthodox means of acquiring a civil order to prohibit the continued sale of DMT-containing plants.
In 2006, a raid discovered two kilograms of mescaline cacti, along with sophisticated laboratory equipment and chemicals. The police arrested a suspect but decided against bringing charges. The next year, a raid unearthed Mimosa decoctions as well as DMT extraction solvents, but the suspect was not charged with any offenses.
The following two examples are particularly instructive due to the contrasting actions taken despite the factual similarities. Two businesses had imported quantities of powdered Mimosa root bark from the same Brazilian wholesaler for several years without issue. However, on the same day in October 2010, their orders were seized by customs.
The Border Agency originally told the first retailer that the goods were Class A drugs before determining that, in its natural state, Mimosa “is not subject to the provisions of the Misuse of Drugs Act” (Niall Murphy, personal communication, 2011). No criminal action was ever taken, and the retailer continued to have shipments processed through customs.
In contrast, the other addressee was put under police surveillance in Sussex before being arrested by undercover officers and raided. The suspect was charged with importation of a Class A drug, and the indictment stated that the shipment was purified DMT rather than Mimosa bark with a minute alkaloid content. A Home Office press release (2010) valued it at over £3 million (but was later silently deleted). When the defendant was remanded in prison with a confiscated passport and frozen assets, police stated that they anticipated a custodial sentence of over ten years.
After several months, the case was heard at Lewes Crown Court, where the judge stated, “the law is very far from being clear on the subject in question.” Influenced by the mushroom and cactus cases, he ruled that the Mimosa had not been “altered by the hand of man” to put it in a usable condition, and, therefore, as it was not a controlled “preparation” or “product,” the charges were dropped (R v H, 2011).
Having spent considerable time and resources pursuing the case, the police instructed their barrister to appeal the decision to the second highest court in the country, but the Royal Court of Justice reaffirmed the not-guilty verdict (R v H, 2012). Finally, more than 16 months after the raid, this set the first legally binding precedent regarding plant psychedelics.
The incongruous consequences in these two cases underlines the legal uncertainty as even police forces entrusted with upholding drug laws are unsure about the status of DMT‑containing plants. While the majority of people working with natural psychedelics are never indicted, in practice, avoiding lengthy legal repercussions is a lottery, and this is as true for ayahuasca as it is for other plant psychedelics.
There are several commonalities between the cases discussed previously and the only two ayahuasca prosecutions, so far, in the UK. Since Britain is a common law jurisdiction, the MDA is interpreted through judicial precedent and, in the absence of references to ayahuasca in statutes, the legal uncertainty arguments used in other plant psychedelic cases are essential for understanding where it stands under British drugs legislation. Again, Walsh (2017) has contributed a comprehensive analysis of the legal points made in these two prosecutions. The first involved Peter Aziz, who conducted ayahuasca ceremonies in Somerset, England. In 2007, after a BBC television program covertly filmed one of his ceremonies, he was arrested and charged with production and supply of a controlled drug (“Jail for voodoo priest,” 2011).
Aziz’s defense had two limbs: firstly, that the same legal uncertainty arguments used in the mushroom, cactus, and Mimosa cases meant that it would be an abuse of process to try him; and secondly, that Article 9 of the European Convention of Human Rights (ECHR) afforded him the religious right to use ayahuasca (R v Aziz, 2011).
In support of the first point, a Home Office letter was exhibited, stating, “I cannot say with any degree of certainty whether or not anyone would be prosecuted for possessing a plant containing DMT which is in its natural state, as there is a great deal of uncertainty around the issue,” but the judge rejected this argument (Edwards, 2007). The second limb of Aziz’s argument—his right to freedom of thought, conscience, and religion—also failed in court. Even though this right is enshrined in law, the existing legal precedents suggest that the freedoms granted by Article 9 must be qualified by its second part, which states:
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.
(European Convention on Human Rights, Article 9.2)
Other jurisdictions have sought to balance the harm caused by religious use of otherwise-controlled substances against the violation of the fundamental rights afforded by Article 9. However, British courts have taken a less nuanced view. In R v Taylor, the judge stated that the UK’s obligations under international drug conventions demonstrate a necessity to limit religious freedoms due to a “pressing social need.” This was confirmed when the Court of Appeal ruled that a religious defense was “wholly at odds” with the aims of the MDA, and thus there was “proportionate, necessary, justification” for the conviction (R v Taylor, 2001). This sort of “blank law” is almost tautological: by unquestioningly deeming a contingent law sacrosanct, there is no genuine opportunity for challenging its legitimacy (López-Pavillard & de las Casas, 2011). A later case was dismissed with direct reference to the Taylor case (R v Andrews, 2004).
Sandberg (2011) argues that judges ought to focus on the relative importance of these limitations; but in Aziz’s case, the court apparently failed to do this, as he was sentenced to fifteen months’ imprisonment in 2011.
The moral judgment implicit in Judge Roach’s summing up was also noteworthy. Although he accepted that Aziz had helped many people, he said, “you knew it was wrong to make DMT, but you did it anyway” (R v Aziz, 2011). This moral condemnation sidesteps any critical scrutiny of essential legal points and loses sight of the purpose of drug laws: to prevent harm. Aziz’s case is also an example of the ancillary penalties suspects can expect as he was subject to bail conditions effectively preventing him from earning a living for over three years before his trial.
The second, potentially pivotal case concerned the arrest of seven members of English branches of Santo Daime who had openly imported ayahuasca since the 1990s (including paying import duties). Following an armed police raid, several liters of sacrament were seized, a number of fardados (church members) were arrested, and two of the church’s leaders—Adrian Freedman and Jane Lidell—were charged with conspiracy to import a Class A drug. Adrian was also subjected to bail conditions, including confiscation of his passport, freezing of his assets under the Proceeds of Crime Act (including contributions to his legal fund donated after the arrest), and an electronically monitored curfew.
In early 2011, Keir Starmer, the most senior prosecutor in England and Wales, personally reviewed the case for several months. To allow the prosecution sufficient time to prepare their case, the trial was scheduled for January 2013, more than two years after the original arrests.
Without warning, on December 10, 2012, the charges were suddenly dropped, and Southwark Crown Court formally closed the case (Adrian Freedman, personal communication, 2012). The reasons for this are unclear, especially considering the scale of resources hitherto invested. Since the Aziz judgment already strengthened the Crown’s case, there is some suggestion that there were irregularities in prosecution procedures. Noticeably, avoiding a trial ensured that no precedent was set, so perhaps police can still claim that ayahuasca is illegal in less complex prosecutions. Legal uncertainty still reigned supreme.
In all the plant psychedelic cases, we see how the media and political climate color the debate even before charges are brought. Unquestionably, the sensationalism of the British press can match that of any country (see, for example, Figure 5.1). Simplistic and biased mainstream media portrayals not only stigmatize defendants and prejudice judges and juries, but also perpetuate an outmoded “War on Drugs” narrative that rejects expertise and existing evidence.
Other prominent themes include the striking disparity in outcomes between different prosecutions cases, as well as the palpable human toll endured, even in cases where defendants were exonerated.
Police are aware of dozens of other importers of plant psychedelics, as well as groups hosting ayahuasca retreats and ceremonies across the UK, but there was no uniformity in their responses.2 This situation was exacerbated by the continuing uncertainty about how the MDA should be interpreted with regard to ayahuasca.
Even when no offense is found to have been committed, the initial criminal charges are often error-ridden, and fighting lengthy criminal prosecutions can be a severe punishment in itself. Adrian’s life was put on hold—his savings were seized, his passport taken, his spouse was arrested, he had to pay a £10,000 bond to be bailed out to see his children, and travel restrictions prevented him from carrying out his professional obligations. It is important to consider the human impact, both in emotional and economic terms.
A recent concern is that British authorities are starting to implement alternative means of securing convictions in cases where legal uncertainty arguments have refuted prosecution accusations. Nine months into the Sussex Mimosa importation investigation, it was already clear that the hyperbolic accusations were unsupported by the facts. The existing case law meant that a conviction was unlikely under the original indictment, so police filed an additional charge of “inciting the production of a controlled drug” (punishable by life imprisonment). They had linked the accused to a post on an Internet forum that quoted instructions for extracting DMT from Mimosa.
As with the confusion over the MDAs “preparation” or “product,” exactly what actions qualify as incitement is unclear. Case law is scant and contradictory. The Court of Appeal said that a publication “capable of encouraging or persuading other people to produce the drug” is incitement (R v Marlow, 1997), but, in 2010, Lord Justice Leveson ruled, “it is not illegal to offer for sale … books which explain how to grow cannabis” (R v Jones, 2010).
Inchoate incitement charges are another example of how it is impossible to know whether one will be considered to be in breach of the law. McCoy (2007) has shown how vague and overbroad laws infringe on rights and allow authorities to criminalize at will—while incitement charges are rarely used, the scope of liability is so broad there is an omnipresent threat of prosecution. The law has drawn trenchant criticism from academic lawyers, with Professor Virgo saying, “this is the worst piece of legislation to be enacted for a significant time” (House of Commons Justice Select Committee, 2013, p. 7), while David Ormerod and Rudi Fortson claim it constitutes “both an interpretive nightmare and a prosecutor’s dream” (Ormerod & Fortson, 2009, p. 414).
The Mimosa case started with police claiming to have exposed trafficking of Class A drugs worth millions of pounds; but, when the seizure was revealed to be £600 of uncontrolled bark, they resorted to an incitement charge. The defense protested the new charge and was able to present to the court numerous textbooks and journal articles openly sold in shops and online that provided detailed instructions for the synthesis of a wide range of controlled drugs (R v H, 2011). Given the proliferation of others committing seemingly identical offenses with impunity, how could the defendant have expected his conduct to be unlawful? The court ruled that this was immaterial; while the Mimosa charges that occasioned the investigation with a full acquittal, the Internet post resulted in a four-month sentence.
Walsh contends that incitement was employed specifically due to its broad and amorphous nature following the legal uncertainty of traditional criminal charges. She identifies this adhockery as Jeremy Bentham’s dog law:
When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.
(Walsh, 2015)
Resorting to all-encompassing incitement charges is a disquieting trend that is starting to be replicated outside of the UK. This vexatious approach has already affected several ayahuasca researchers, including Jeremy Narby, who was charged with incitement after undercover anti-terrorism police infiltrated a lecture at the University of Liège in Belgium. His presentation discussed several medicinal plants, and he spent a few minutes mentioning his experiences with ayahuasca, covering its benefits and risks. While there has been no further action from the authorities, he is still wanted for questioning, and this sort of long-term intimidation shows that even speaking about ayahuasca can lead to legal trouble in Europe.
Narby once participated in a panel discussion where John Mohawk said that one of the strangest things we do on this planet is make plants illegal (Narby, Huxley & Mohawk, 2007, p. 38). Reflecting on this, he commented that “making words about plants illegal is also pretty strange” (Narby, 2013).
A similar legal void exists in almost every other Western country, as governments have yet to take an explicit position on whether ayahuasca is an uncontrolled decoction or an illicit “preparation” or “product.”3 A full overview of the legal confrontations across the continent is beyond the scope of this chapter; however, a key observation is that British legislative decisions and prosecution strategies are frequently mirrored in other countries, as are the collateral human costs of prosecutions. There have already been multiple arrests across Europe and, as in the UK, a common defense involves Article 9 of the ECHR, which all Council of Europe member states are party to.
In the Netherlands, a court decision in 2005 echoed the “altered by the hand of man” requirement when customs confiscated powdered Mimosa but released a shipment of chacruna (Psychotria viridis) after they were unable to prove that the leaves were intentionally processed, rather than naturally dried (van der Plas, 2010). State-sponsored risk assessments for ayahuasca and Psilocybe mushrooms, as well as two separate reports, concluded that mushrooms score “particularly low” on the risk scale (Coördinatiepunt Assessment en Monitoring nieuwe drugs, 2000, p. 12). Despite this, the Dutch Minister of Health deferred to media sensationalism and added mushrooms to the Opiumwet (their main drug law) in 2008. As in the UK, the decision to disregard expert advice implies a potential political motive behind plant psychedelics policy.
The Netherlands has also seen several protracted ayahuasca cases, including a 1999 raid on a Santo Daime ceremony held in Amsterdam (van der Plas, 2011). Importantly, the defense was able to engage the court in an assessment of the relative harms of ayahuasca. Expert witnesses gave evidence that ayahuasca is “essential for their religious beliefs” (de Wolff, 2000, p. 9) and that it is “not plausible” that its use entails a risk to public health (Kranenborg, 2001, p. 4). Kaplan (2001, p. 3) drew even stronger conclusions, testifying the use of daime provides a “minimal risk to public health and, in fact, is likely to provide an unseen benefit for our health system.”
Germany is another European country with a lengthy history of ayahuasca use. However, increasingly common examples demonstrate the menacing realities of legal interventions. Two weeks before the Dutch Santo Daime arrests, there was a dawn raid on a Daimista campsite. The 100-strong taskforce included aggressive black-clad Sondereinsatzkommandos carrying automatic weapons (Rohde & Sander, 2011).
A separate investigation the following year demonstrates how maneuvers orchestrated between state authorities and the press can exercise social control. The names of Santo Daime members were purposely leaked to the media, while police simultaneously raised accusations of drug trafficking and released detailed press statements designed to steer the public dialogue (Rohde & Sander, 2011). There are also multiple reports of German authorities co-operating with foreign police forces. After being described as a “drugs sect,” Santo Daime members suffered threats and vandalism that police refused to investigate, and one congregation was self-exiled to the Netherlands (Feeney & Labate, 2014).
Italy also has witnessed lengthy legal wrangling with ayahuasca, and familiar themes are evident in the court proceedings. Following the arrest of dozens Daimistas in 2005, newspapers branded the church a “black magic sect” and “traffickers disguised as a religion,” while ayahuasca was described as a “devastating drug.” After multiple court appearances, ayahuasca was deemed not to be a “preparation” of a controlled drug, since there was no evidence that the active alkaloids had been concentrated, and the case was dismissed (Menozzi, 2011). Later, alleging that ayahuasca offers a higher bioavailability of DMT than natural chacruna leaves, the government attempted another prosecution. However, the court ordered all the daime to be returned, and the case was eventually closed in March of 2009 (Menozzi, 2011).
France is infamous for being the first country to prohibit the plants used for ayahuasca shortly after Santo Daime won a trial that lasted six years. This is another case that demonstrates that even legal exoneration does not necessarily mean not suffering any punishment. After being arrested in November 1999, the accused were imprisoned while awaiting trial. Their normal lives were suspended as the first judgment did not arrive until 2004. They were finally acquitted in January 2005 for similar reasons as the abuse of process arguments used in the British cactus and Mimosa cases, but ayahuasca plants were explicitly banned shortly afterwards (Bourgogne, 2011).
In March 2006, a Santo Daime leader was arrested in Ireland and convicted for possession and supply of DMT. After a convoluted appeal, the sentence was initially quashed in the High Court but the second count was re-sentenced in 2008, and the conviction stood. While the defendant was allowed to keep the sacrament and was only fined €300, his reputation was vilified and his personal life disrupted (McCabe, 2012).
As Watt (in this volume) points out, the judge was aware of Santo Daime’s Catholic roots, as well as the Constitution’s affirmation of the right to religious freedom. While the British prosecutions typified the disconnect between medicalized law and traditional Amazonian knowledge, differing cultural norms and the continuing influence of Catholicism in Ireland’s social and legal structures arguably affected this case.
In Sweden, the case of Jungle Svonni, a Sami shaman, bears remarkable similarities to plant psychedelic cases in the UK. Svonni had powdered San Pedro cactus sent to him from Peru, but German customs officials intercepted the package, analyzed it, and forwarded a report to their Swedish counterparts. In September 2013, they raided his home and charged him with importation of mescaline. The severity of the charge meant that he was remanded until the authorities determined it was cactus and not pure synthetic mescaline. He was then released and acquitted in court only for the prosecutor to appeal the case. In a direct parallel to the British Mimosa prosecution, it was claimed that drying and powdering the San Pedro rendered it an illegal “preparation.” The prosecution appealed twice to higher courts, and both times, Svonni was re-acquitted.
Again, it is hard to estimate the human cost to Svonni—he was denounced as an international drug smuggler in the press, was subject to onerous bail conditions for a year, and, although they had the powder for six months before the raid, the authorities took 18 days to analyze it while he was kept imprisoned (Malandra, 2012).
As in the UK, the Swedish Supreme Court also ruled that Mimosa hostilis is legal to import and possess, since the DMT is unseparated, and it is not a “solution or mixture,” nor “in dosage form.” The defendant in this case spent over a year and half battling the charges, but many local police forces remain unaware of the law, meaning its application is still inconsistent (Riksåklagaren v GY, 2014).
In Norway, a Sami shaman was cleared of offenses related to ayahuasca using Article 9 of the ECHR. However, another case involving psychedelic researchers Teri Krebs and Pål‑Ørjan Johansen has been more concerning. In what has been described as politically motivated discrimination, Krebs was arrested, searched, and separated from her young child after attending a legally authorized marijuana rally. It is notable that the lead police officer works for an anti-drug advocacy group and the questioning focused on their drug policy views rather than any legal wrongdoing (Høydal & Røed, 2016; Teri Krebs, personal communication, 2016). Police operations are often justified by the intentional conflation of ayahuasca users with drug dealers.
With hundreds of fardados in its Santo Daime branches, Spain has an extensive history with ayahuasca. A major legal case began in April 2000 when two Brazilians and the Spaniard who had come to collect them were arrested at Barajas Airport in Madrid. Meanwhile, as Santo Daime was termed a “destructive sect” in the press, a police operation and more arrests unfolded in nearby Méntrida (Rodríguez, 2000). The Brazilians spoke minimal Spanish and were only in transit to Japan, but they were remanded in Soto del Real prison while sniffer dogs and police raided their friends’ homes. The court took months to complete its chemical analysis before they were eventually acquitted in October, but the battle to have the sacrament recognized continued for years (de la Cal, 2009).
In Eastern Europe, there also seems to be legal uncertainty surrounding ayahuasca. Neoshamanic ayahuasca ceremonies continue despite having been characterized as “secret and dangerous shamanic rituals” in the Estonian press, while in nearby Lithuania, Egidijus Kiveris was sentenced to two years in prison after receiving 4.45 liters of ayahuasca (Veskioja, 2014; Vikat, 2013; Egidijus Kiveris, personal communication, 2017).
Undeniably, the number of ayahuasca-related cases across Europe is increasing rapidly, and it is clear that there are many cross-border commonalities between the legal systems. Although not exhaustive, statistics collected by the Ayahuasca Defense Fund (2016) report 77 police interventions in Europe from 2010–2016 compared to just 11 in the previous ten years. I have spoken to numerous people working with ayahuasca in Europe who believe they are immune to police interference, and detainees often report that they were convinced it was legal and are unaware of ongoing prosecutions in their country.
In these examples, we see how the threat of lengthy sentences, onorous bail conditions and harrassment are tools of intimidation actively engineered by states to entrench their agenda through classic divide and conquer strategies (Gelderloos, 2013).The manipulative power of information is evident as calculated police collaboration with press corporations produces a prejudiced narrative that stigmatizes and ostracizes. Meanwhile, militarized raids and the rhetoric of terrorism further pathologizes the accused as global nacro-traffickers (Del Gandio, 2015). As Judge Rakoff (2014) describes, prosecutors frequently exercise sentencing power through their charging decisions and, by characterizing the criminal accusations as a serious drug enquiry, defense lawyers and their anxious clients feel forced to accept the narrative, unaware of the fundamental differences between ayahuasca and a routine narcotics case.
While it is almost impossible to estimate the human impact, ayahuasca is so poorly understood in the West that being correct in law is no protection against prosecution. Ayahuasca users have achieved several important legal victories in recent European cases, but a coordinated approach that operates in full awareness of the legal background is essential. Appropriate outcomes are more likely when the accused are aware of the most promising defense strategies as well as typical prosecution approaches.
If there were not already sufficient uncertainty surrounding the legal status of ayahuasca in Britain, the Psychoactive Substances Act (PSA) was enacted on May 26, 2016 and further complicates matters. Intended to tackle new psychoactive substances (NPS), this reactionary law expands on incitement charges, amplifies the domain of culpability, and makes the gamut of controlled substances almost limitless. As well as granting broader police powers, it introduces manifold offenses related to any substance that can “affect one’s mental functioning or emotional state” by “stimulating or depressing the person’s central nervous system” (Section 2).
Consequently, non-medical drugs are now controlled under three separate tariffs: regulation of alcohol, tobacco, and caffeine; the criminal framework of the MDA; and prohibition of anything else under the PSA. For any particular substance, it is questionable which schedule is applicable, and it is still manifestly unclear whether ayahuasca falls under the remit of the MDA or the PSA.
When the PSA was debated, a blanket ban was justified by claiming that the government found itself in a “game of cat and mouse”; phrasing reminiscent of comments rejected by judges in the Mimosa case where prosecution barristers lamented that it would be an “endless task” to schedule all drugs currently escaping the remit of the MDA (see Hansard, 2005c, c735; R v H, 2011). There was no attempt to make the legislation commensurate with any assessment of harm and, after infamous occasions where advice from the government’s drug committee has been disregarded without explanation, it removes the statutory obligation to consult the ACMD or take expert opinion into account. The broad interpretation of “psychoactive” used also means that innocuous substances are potentially criminalized. The government was even forced to reassure church leaders that the religious use of incense would not be covered by the Act (see Penning, 2015 and Moussaieff et al., 2008 for evidence of the psychoactivity of incense).
There were also concerns regarding widely used alkyl nirites (commonly known as “poppers”), since their inhalation results in a “rush” caused by the dilation of blood vessels in the brain and thus meets both parts of the PSA’s definition. Remarkably, the government was able to appoint a committee of pharmacologists (rather than judges or lawyers) who claimed that poppers are not psychoactive and hence not prohibited. This self-evidently raises issues, especially since this contrived re-construal was based upon a different wording of the PSA from that actually enacted (Bradley, 2016; Iversen, 2016).
When the PSA was drafted, the Home Office also initially rejected the ACMD’s suggestion to use a more scientifically meaningful definition of “psychoactivity.” They later had to backtrack, and implemented the ACMD’s proposal verbatim, but only as “guidance” rather than in the legislation (compare Home Office, 2016a, p. 3 with Iversen, 2015, p. 2). As in the legal uncertainty cases, this raises questions over the legitimacy of non-statutory Home Office advice that redefines the scope of legislature beyond the enacted wording of the PSA.
Walsh denounced the last-resort application of incitement charges as “dog law,” but the government’s disregard of the ACMD recommendations is more disquieting. As Dunt (2016, para. 13) explains, this allows the authorities more power: “You create the widest, broadest, vaguest powers possible and then when it comes to enforcement you follow a more restricted approach … It’s the state which decides when it wants to enforce them.”
It is also telling how the media manipulates the legal process. Exaggerated headlines in the press during the Mimosa and ayahuasca prosecutions, as well as while the PSA was being debated, substitute evidence and research with sensationalism and scaremongering. Similarly, across Europe, religious groups were portrayed as cultish sects or immoral narco-traffickers. Since its announcement, the PSA has been derided as a “blunderbuss approach” (Transform & Release, 2015), while one MP branded it “scientifically illiterate” and “manifestly stupid” (Flynn, 2016).
Even ignoring its flawed drafting, it is unlikely to achieve its stated aims. In Europe, Ireland, and Poland passed similar laws in 2010 that provide an indication as to the policy’s future effectiveness (Ustawa z dnia 24 kwietnia 2015, 2015; Criminal Justice (Psychoactive Substances) Act 2010 Ireland, 2010). After the Act was passed in Ireland, use of NPS by people aged 16–24 has increased and is the highest of any EU country (European Commission, 2014, p. 8). The law has proved to be unenforceable in practice, as NPS are still openly sold but there have only been four successful prosecutions. Det. Sgt. Howard from the Drugs and Organised Crime Bureau said police have struggled to legally prove that a given substance is technically psychoactive (quoted in Easton, 2015). In Poland, the latest statistics from the National Bureau for Drug Prevention reports that medical interventions related to NPS have risen sharply in recent years (Malczewski & Misiurek, 2013).
The PSA is troubling for several reasons, but particularly because it serves to further exacerbate the confusion surrounding plant psychedelics. A straightforward understanding of the legal implications is rendered inaccessible not only to laypeople but also to experts. Indeed, the legal uncertainty arguments used against unclear definitions of “preparation” and “product” in the MDA are arguably more applicable to the PSA (and its non-statutory post-hoc attempts at clarification). Even the government’s official guidance admits, “it may be difficult … to know if a substance is affected by the act or not.” Meanwhile, evidence submitted to the Public Bill Committee raises concerns that it impossible for individuals or police to ascertain which substances are actually controlled (Home Office, 2016b; Transform & Release, 2015).
At the time of writing, it is too early to predict how courts will interpret the PSA, if indeed, prosecutors ever feel there is a realistic prospect of conviction under the confused wording of the law. Even if it were held that the PSA applies to ayahuasca—although it has consistently been clear that ayahuasca is not controlled by the international conventions, the INCB does class it as an NPS—it is unlikely that the law could be enforced with any predictability or fairness (Feilding & Singleton, 2016; INCB, 2013). Rather than clarify the situation, the PSA can only exacerbate the existing legal uncertainty and leave ayahuasca in an even more complex and unpredictable legal limbo state.
Ayahuasca is uncontrolled by international drug conventions and not explicitly regulated by the UK’s MDA. However, British law is derived from judicial precedent, and there have been several plant psychedelics prosecutions where natural substances that contain trace amounts of controlled chemicals have been interpreted as scheduled “preparations” or “products” of controlled substances by prosecutors. Ultimately, the majority of magic mushrooms cases ended in acquittals due to legal uncertainty, only for political interests to later criminalize the fungi against expert advice and available scientific evidence. Further UK cases demonstrated that, in a vacuum of legal confidence, the police response to plant psychedelics is arbitrary and uncertain. Without attempting to balance public interest versus rights granted by the ECHR, courts have missed opportunities to enrich the social debate regarding religious freedoms (Sandberg & Catto, 2010).
As the confusion and unpredictability persisted, two prominent British ayahuasca cases ended in conflicting verdicts with neither providing any legal consensus. The only certainty was that, from a pragmatic perspective, after the ordeal of being raided, arrested, and dragged through the criminal justice system, even an eventual acquittal is a small consolation. Meanwhile, prosecution strategies have been reflected elsewhere in Europe and reinforced the notion that power can be effectively exercised through fear and intimidation.
The employment of incitement charges and the subsequent enactment of the PSA in the UK heralded a new era of uncertainty: the law’s lack of clarity means it is impossible for prosecutors to guarantee convictions, but, at the same time, the combination of the latent threat of infinitely malleable offenses and a blanket ban can criminalize almost anyone. This promises untold legal confusion for the future and acts as a stark reminder that the threat of real-world legal ramifications is far from implausible while eventual resolutions are rarely consistent or just. The law is simultaneously impotent and tyrannically draconian.
Many of our drug laws originally stem from prejudice (see, for example, Gray, 1999 or Musto, 1999). This continued with the ethnocentric narrative behind the UN Conventions and the organizations that are permeated with the assumed superiority of Western pharmaceuticals and that treat ayahuasca users with the same scorn that resulted in the stigmatization of coca in the 1950s (Sánchez & Bouso, 2015). Sadly, decades later, we continue to exacerbate these issues. Rather that adopting a more sagacious attitude, equating a complex cultural practice using natural plants with the refined and highly purified chemicals they contain is problematic, and not only from a legal perspective. The tangled legal landscape of ayahuasca remains a nebulous jungle where uncertainty prevails and drastic reform is urgently needed.
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