England and Wales

England’s primary instrument of drug prohibition is the Misuse of Drugs Act 1971. If a substance is scheduled under this legislation, its possession, supply, production and importation/exportation becomes a criminal offence. Substances are placed in either Class A, B, or C, with Class A containing those substances deemed to pose the greatest risk of harm to self and others. Whilst ayahuasca is not scheduled under the Act – and nor are the plants it is typically constituted from – its psychoactive component, DMT, is scheduled as a Class A drug.

Possession of DMT can result in a custodial sentence of up to 7 years and any offence beyond possession (supply, production and so on) can result in a life sentence. It is worth noting that these statutory maximums would almost never be given in practice. For a more realistic impression of the sentences to be expected for Class A drug offences, see the Sentencing Council’s sentencing guidelines, Drug Offences: Definitive Guidelines.

The question then remains as to whether the fact that ayahuasca contains DMT means that it is captured by the Misuse of Drugs Act 1971. Whilst case law has long since clarified that having a plant that naturally contains a psychoactive substance controlled by the Act does not suffice, there is a provision in the Act that provides that any preparation made that contains a scheduled substance would fall within its ambit.

To illustrate how this provision operates in practice, an analogy can be drawn with magic mushrooms, a species of which – the Liberty Cap – is native to England and Wales. Until 2004 the fungi itself was not scheduled within the Misuse of Drugs Act 1971, although the psychoactive component it contains – psilocybin – was. Thus, being in possession of magic mushrooms did not constitute a criminal offence unless the mushrooms were deemed to constitute a preparation, resulting in lots of tortuous case law as regards what that might involve: Did drying them out suffice? Freezing them? and so on. In 2004 – largely as a result of concerns about importation of magic mushrooms from abroad – psilocybin containing fungi were themselves prohibited. An unfortunate distinction when it comes to ayahuasca, however, is that it is very difficult to argue that it does not constitute a preparation, being almost the definition of such: thus the plants that it consists of do not appear to need scheduling for the brew to fall squarely within the parameters of the Misuse of Drugs Act 1971.

Even if it were to be successfully argued that ayahuasca does not fall under the Misuse of Drugs Act 1971, it would then unavoidably be caught by a recently passed piece of legislation – the Psychoactive Substances Act 2016 – that outlaws supply of all psychoactive substances, with a psychoactive substance defined as one which affects one’s mental functioning or emotional state. Note, this Act does not criminalize simple possession of such substances.