England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2017

Sir Ross Cranston:

1. The claimant is a recognised religious group in Brazil. It has congregations around the world in the United States, in a number of European countries and elsewhere. I understand that there are some 20,000 members worldwide and about 25 members at present in this country.
2. This is the claimant's renewed application, after refusal on the papers by Lang J, for judicial review of a decision of the Secretary of State dated 18 November 2016. The Secretary of State's decision was to refuse the claimant's application for a licence to import, possess and supply hoasca tea for the purposes of consumption by its congregation. (Sometimes the name used for the tea is ayahuasca but in this judgment I will use to the term hoasca.) The tea is made from a plant material containing dimethyltryptamine, which I will call DMT in this judgment.
3. DMT is a class A drug controlled under the Misuse of Drugs Act 1971. Section 7 of that Act enables the Secretary of State to make regulations for licences to produce, supply or possess controlled drugs. Regulations have been made and under them so that a licence holder can produce, supply or possess a controlled drug provided it is acting in accordance with a licence.
4. On 27 August 2013 advice was given by the Advisory Council on the Misuse of Drugs ("the Advisory Council"). It said this:

"There is a general paucity of evidence and there have been no controlled clinical studies to establish the safety of hoasca. Those studies that exist have generally been of small numbers of individuals within the context of use in Brazilian Ayahuasca churches. The key issue for the Council is that of formulation and concentration. Unless each batch is tested there is the potential for variability in concentration and strength. Published papers generally report no significant acute deleterious effects on taking hoasca relative to controlled drugs. However, there is a bank of studies that have been designed to consider harmful chronic effects. It is therefore not possible for the Council to give a view on what could constitute a 'safe dose' due to the potential variability in the concentration of active ingredients. It is also not possible to give an indication of the volume of tea that would elicit a given level of effect.

Diversion and misuse

The likelihood of diversion is considered to be relatively low as the plants that are used to make the tea are available for purchase on the internet. In addition the tea itself is considered to have a rather unpalatable taste and so it is unlikely it will be used 'recreationally' in its imported form.

Wider implications

It should be made clear that whilst users of hoasca report positive effects from consuming the tea, its use may not be without risk of harm potentially associated with states of altered consciousness that could be induced by the tea, for example, suggestibility.

Conclusion

Hoasca is a preparation of a class A substance, DMT. In addition to the actual and/or potential harms associated with class A substances, the Council has concerns around hoasca formulation, concentration and the paucity of evidence on toxicology."

5. Before me Mr Clegg QC advanced the claimant's case as a breach of the claimant's members' rights to manifest their religion or beliefs under Article 9 of the European Convention on Human Rights. Rationality, as I understand it, was not being advanced. If it was, it added nothing in my view to the challenge under Article 9. I also note that for the purposes of the renewed application the Secretary of State accepted that the consumption of hoasca is a manifestation of religion.
6. The issue before me, therefore, revolves around the effect of Article 9(2). That allows limitations on the manifestation of religion as prescribed by law and as necessary in the democratic society in the interests, amongst other things, of public safety and the protection of health. Consistently with the interpretation of the Convention, that requires justification in terms of a measure's legitimate aim and its proportionality.
7. The case Mr Clegg advanced is that the Secretary of State's decision to prohibit the claimant's members consuming hoasca is unnecessary and disproportionate as an infringement of their religious freedoms, especially when its consumption would be under the stringent conditions the claimant imposes.
8. The refusal letter gives two main reasons for the decision. First, it is said that there is a strong public interest in preventing the consumption of class A drugs on public safety and health grounds, and that there is a paucity of evidence regarding safety and the impact on health of hoasca. Secondly, the letter refers to the risk, the real risk, as it is described, of the United Kingdom being in breach of its international obligations under the UN Convention on Psychotropic Substances 1971, which I will describe as "the 1971 Convention".
9. Mr Clegg contested those reasons. He underlined that the Secretary of State's decision was finding "on balance". He submitted that the two reasons had to be considered cumulatively. As to the first, the public interest in preventing the consumption of class A drugs, Mr Clegg submitted that it in a way was a trite observation since the Secretary of State was entitled under the Act to license the consumption of such drugs. He submitted that she should have considered public interest not in general terms but in terms of the use and consumption of the tea by a small group under stringent conditions.
10. There was also, in Mr Clegg's submission, the unpleasant taste of the tea. He coupled that with a submission that the Secretary of State had not properly explained the public safety aspect of her reasoning. In his submission the burden was on the Secretary of State, not the claimant, to demonstrate that hoasca was a threat to both public health and safety. The Secretary of State had put the question the wrong way round. She should have asked whether it was necessary to refuse the licence in the interests of public health and safety. Mr Clegg underlined the use of the word "necessary" in Article 9(2).
11. As to the health justifications for refusing the license the Secretary of State had given, Mr Clegg submitted that there was no medical evidence or scientific evidence that the ingestion of the tea over many years by many people had produced reported effects. There was a range of scientific material before the Secretary of State to that effect. There were also the positive effects reported by the claimant's members, which I had noted in the witness statements of some of the United Kingdom members of the congregation in my pre reading.
12. Consequently, Mr Clegg submitted, the Secretary of State had in regard to that first reason asked herself the wrong question, had taken into account factors that she should not have taken into account and had failed to grapple with the burden which was on her.
13. In relation to the second factor, that is the real risk that the UK might be in breach of its obligations under the 1971 Convention, Mr Clegg referred to the situation in other countries. The consumption of hoasca tea by the claimant's congregation was permissible in Brazil. There was the United States Supreme Court decision in Gonzale v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). There is also a recent letter from Health Canada, dated 5 June 2017, which was handed up during the hearing, where the consumption of hoasca by the claimant's congregation seems to have been approved.
14. Mr Clegg also took me to a letter from an executive director in the United Nations International Narcotics and Control Board, dated 1 June 2010, which stated that no plant containing DMT was currently controlled under the 1971 Convention and consequently preparations made of those plants, including hoasca, were not under international control and therefore not subject to any of the provisions of the 1971 Convention.
15. In his reply Mr Clegg pointed out that there were exemptions in the Convention for plants and the consumption of what would otherwise be controlled drugs. As well he pointed to the differences between the 1971 Act and the 1971 Convention in that under the Act there is a wider licensing power than provided for the Convention. In his submission the Secretary of State had misunderstood the application of the 1971 Convention and in no way, especially given the approach of other leading adherents to the Convention, such as the United States, Canada, Brazil and Peru, could the Secretary of State have drawn the conclusion that there was a real risk of the UK Kingdom breaching its obligations.
16. There is no doubt that the Secretary of State must justify the interference with the Article 9 rights of the members of the claimant's congregation. However, I accept the submissions by Mr Eadie QC that in approaching this matter the Secretary of State is entitled to a broad margin of appreciation. First, this is a class A drug. Secondly, there are social and health issues. I also accept Mr Eadie's submission that the Secretary of State's approach is not out of line with what is broadly accepted amongst Council of Europe states. In fact, when I asked Mr Clegg what other Council of Europe states licensed hoasca, he very fairly conceded that it seemed that no other Council of Europe state did so, albeit that the drug does not seem to be caught by the law in Switzerland, that prosecutions cannot be brought in the Netherlands and that there are licensing applications in Italy and Portugal pending.
17. In my view there can be no presumption in favour of granting a licence. The evidence contained in the Advisory Council's advice, which I have quoted, highlights that there are no studies that establish that the use of hoasca is safe in the long term, albeit that there is no evidence, as Mr Clegg has emphasises, of harm amongst those who had ingested the drug amongst the claimant's congregation. In my view the Secretary of State was also entitled to take the view she did of the health risks.
18. As regards Mr Clegg's submissions on public safety, the Advisory Council's letter referred to the state of altered consciousness attributable to use of the drug. In my view the Secretary of State was entitled to take that into account is estimating what the behavioural consequences might be. Given the wide margin of appreciation she was entitled to take the cautious approach that she adopted to public safety concerns.
19. As far as the 1971 Convention reason given, it seems to me that the Secretary of State was entitled to take the view that there was a potential breach and that it was not legally irrelevant. The fact that other countries have chosen to take a different path, in my view, does not in any way undermine the legal analysis, in particular, that turning on Article 7(a) of the Convention which goes to support her reasoning. I can see no inconsistency between the 1971 Act and the 1971 Convention. The letter of 1 June 2010 by the Director of the United Nations International Narcotics and Control Board sits uneasily with my reading of the Convention.
20. Thus it seems to me that the Secretary of State was entitled to take the view that there was a real risk of a breach of the 1971 Convention. Adherence, of course, to international treaty obligations is something which fed into her consideration of the proportionality of the interference with the religious rights of the claimant's members.
21. For all these reasons I refuse the renewed application.
22. Thank you very much, Mr Clegg, Mr Eadie.
23. Is there anything more?
24. MR EADIE: The only other thing which I should mention is that Lang J, when refusing permission initially, made a second paragraph order saying in effect, "The claimant should pay the defendant's costs of the preparation of the acknowledgment service in the sum of ...", and we would ask that that order could simply be repeated by my Lord.
25. SIR ROSS CRANSTON: I do not think, Mr Clegg, you can say anything about that. He is not claiming for the costs of today.