Fergus Ewing MSP, Community Safety Minister has written to the UK Government suggesting a radical rethink of Britain’s drug laws. Concerns raised by the increasing use of mephedrone (a plant food) as a recreational drug and other such “legal highs” have prompted the head scratching.

The current approach is to prescribe a list of banned substances. The problem being that clever folks involved in the sale of such substances can come up with new legal highs which are sometimes only slightly different to the banned drugs, and it then takes time for the law to catch up.

So, for example, it is only after reports of injury and death being linked to the use of mephedrone (or “bubbles” or “meowmeow” – so cute!) that steps are being taken to ban it under the Misuse of Drugs Act 1971.

This, says Mr. Ewing is not a Scottish approach to things and the mens rea or “evil intent” should be criminalised instead. One possible approach is that the new definitions will criminalise the sale of anything in situations where it can be “reasonably expected” to be used as a hallucinogen or intoxicant by human beings, regardless of what its other uses are.

By the way, that definition could include caffiene, nicotine, alcohol, kava, nutmeg and some toads. And in the case of my older son, sugary orange drinks, too!

This approach concerns me. Surely, in a liberal society, the state has to make a case before banning something? I believe that Scots law is already flexible enough to prosecute if there is likely to be harm caused. Note the proposed test does not mention “harm” or “danger” anywhere. It would simply introduce a blanket ban on the sale or supply of any hallucinogen or intoxicant no matter how mild or innocuous.

The infamous case of Khaliq v. HM Advocate 1984 JC 23 already establishes that “the wilful and reckless administration of a dangerous substance to another causing injury or death is a crime at common law in Scotland”. The shopkeeper who sold the glue-sniffing kits in that case received three years in jail.

What’s wrong with that as a legal solution? Why this insistence on banning everything that hasn’t been pre-approved by a government watchdog and administered by a first-aider with a risk assessment form and disclosure cerificate?

Image from the following article: Mephedrone: The Facts.