Over recent years the problems of monitoring, regulating, banning and criminalising the sale of new psychoactive drugs have been recognised. These substances may be every bit as dangerous as drugs that are already controlled substances under the Misuse of Drugs Act 1971 (“the MDA”). However, the rate at which new chemical formulations are devised means that a system of regulation such as the MDA, based on a specific identifiable substance, simply cannot keep up.

In the Queen’s Speech on 27 May 2015, the government announced that, “new legislation will … ban the new generation of psychoactive drugs.” The new regime seeks to classify substances not by their specific formulation (as under the MDA) but by their effect on the brain.

What is a Psychoactive Substance?

The difficulty in defining what precisely the Act ought to (or is intended to) cover has resulted in a very wide definition of ‘psychoactive substance’, but with a similarly wide list of exceptions.

Under section 2(1) of the Act, a “psychoactive substance” means

any substance which—
(a) is capable of producing a psychoactive effect in a person who consumes it, and
(b) is not an exempted substance

Section 2(2) provides that, “a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state.” The product is consumed if it enters the body via any route, include via inhalation.

The Act does not cover alkyl nitrates, or ‘poppers’. This is confirmed in the letter of the Home Office to the Advisory Council on the Misuse of Drugs dated 22nd March 2016. The reason given is that, although poppers may create a sensation of euphoria, this is the brain’s interpretation of a physical effect on the body’s peripheral systems, rather than a direct effect on the central nervous system.

Nitrous oxide is included, as will be some ‘smart drugs’ (also known as cognitive enhancers, or ‘nootropics’) although some of these may, in limited circumstances, fall within the exceptions below.

Exempted Substances

An understanding of exempted substances is crucial to the correct application of the PSA 2016. Exempted substances are set out in Schedule 1 to the Act, and may be added to by the Secretary of State. Currently, the exempted substances contained in Schedule 1 are:

  • Controlled Drugs within the MDA 1971
  • Controlled drugs within MDA 1971
  • Medicinal products (as defined in regulation 2 of the Human Medicines Regulations 2012), whether or not they have been prescribed
  • Alcohol, or alcoholic products
  • Nicotine or tobacco products
  • Caffeine or caffeine products
  • ‘Food’, i.e. products ordinarily consumed as food or drink. Foods to which a psychoactive substance has been added (and which is not naturally occurring in that food) are not exempt.

For alcohol, nicotine and caffeine products, if the product also contains a psychoactive substance, it is not exempt.

Although many foods may have a psychoactive effect (including nutmeg), these are not covered by the Act, provided the psychoactive substance is naturally occurring within it. However many herbal remedies that are not food will not be exempt.

Principle Offences

The most important thing to note is that simple possession of a psychoactive substance is not an offence. This was a deliberate decision by the government, as it is not the intention to criminalise the behaviour of young people.

However, the following are offences of possession:

  • possession within a custodial institution (section 9); and
  • possession with intent to supply (section 7). There is no minimum quantity required for this offence to be made out. It is intended that ‘social supply’ be included.


Production
of a psychoactive substance is an offence under section 4. The importation and exportation of psychoactive substances are offences under section 8.

Supplying, or offering to supply a psychoactive substance is an offence under section 5. This includes supply via the internet. Schedule 4 extends criminal liability to information service providers in relation to websites or other internet-based services that lead to the supply of psychoactive substances. However, services providers will not generally be liable if they were unaware of such sites operating, provided that they shut them down once they do learn of such activity.

The sale of glue or other solvents is only an offence under section 5 if the vendor “knows or is reckless as to whether” the purchaser is “likely to consume the substance for its psychoactive effects.” The same condition under section 4 applies to the manufacture of these products. Therefore the Act does not criminalise the routine production, storage or sale of glue or solvents in circumstances where there is no reason to anticipate the end user will be consuming the product for its psychoactive effects.

Under section 56 of the Act, company directors, managers and partners etc. are personally liable for criminal offences committed by companies, if the offence was committed with their consent or connivance.

Other than for possession within a custodial institution, the maximum sentence following summary conviction is twelve months’ imprisonment. On indictment, the maximum sentence is seven years.

In addition to a court’s broad discretion in sentencing, section 6 of the Act identifies three specific factor that the court must treat as an aggravating factor when sentencing those aged over 18 for supply or offering to supply a psychoactive substance:

  • supply or offer to supply on or “in the vicinity of” school premises during school time or up to an hour before or after school hours;
  • the use of a “courier” aged under 18;
  • an offence committed in a custodial institution.


Exempted Activities

Section 11 establishes a list of activities, contained in Schedule 2, which may be carried out without an offence being committed under the Act. While Schedule 2 contains only two types of exempt activity, the Home Secretary has the power to add further activities, or to vary or remove activities listed.

The first category of exempt activities are “healthcare-related activities”. Under paragraph 1 an activity is exempt if it is, “Any activity carried on by a person who is a health care professional and is acting in the course of his or her profession.” Paragraph 2 provides an exemption for the prescription, dispensing, possession and consumption of prescribed medication. Paragraph 3 covers activity in relation to human medicines undertaken in accordance with the Human Medicines Regulations 2012.

The second category of exempt activities are those related to approved scientific research. Paragraph 4 identifies numerous different ways in which a piece of scientific research is to be regarded as ‘approved’. It seems unlikely that such activity will come into conflict frequently with those seeking to enforce the new Act.

Civil Proceedings: Prohibition Orders and Premises Orders

A significant aspect of the new Act is the creation (in sections 12-35) of a number of civil powers of potentially wide application.

The scope and use of these powers is fairly complex, but in outline, the Act provides for the issuing of a prohibition notice / order or a premises notice / order. Breach of a notice is not an offence, but may lead to an order being made. Breach of an order is a criminal offence.

Notices may be issued by the local authority or a police officer of at least the rank of inspector. A prohibition notice is, in effect a warning to a person not to carry out a prohibited activity: producing, supplying, offering to supply, importing or exporting a psychoactive substance. A premises notice is an instruction to the occupier, leaseholder or controller of premises to take all reasonably steps to prevent a prohibited activity from taking place at the premises. It appears to be anticipated that in many cases it will be appropriate for the initial response to social supply to be the issuing of notice, rather than criminal prosecution.

Orders may be made either -

  • on conviction for one of the new offences under the Act, or for attempting, aiding and abetting the commission of such an offence etc., or
  • on application to the Youth / Magistrates’ Court (England and Wales) or the Sheriff (Scotland). When an application is made, it will be necessary to show either a person has failed to comply with a notice previously served, or that they would fail to comply with a notice if one were (or had been) given.

Where factual matters are in dispute, the standard of proof is the civil standard: the balance of probabilities.

As for a notice, a prohibition order will require the person not to carry out a prohibited activity, while a premises order will require the occupier / controller of the premises to take all reasonable steps to prevent prohibited activities from taking there. Breach of either order is a criminal offence, leading to a maximum sentence on indictment of 2 years’ imprisonment.

Powers of Entry, Stop and Search

Sections 36-54 create numerous fresh powers to

  • Stop and search a person where there are reasonable grounds to suspect an offence under the Act is being committed (section 36), such power being exercisable in any place to which a police officer lawfully has access;
  • Enter and search vehicles for relevant evidence (section 37);
  • Board and search vessels or aircraft (section 38);
  • Enter and search premises: detailed procedures for the obtaining and execution of a warrant in is set out in Schedule 3 to the Act. 

Powers of production, seizure, retention and forfeiture are also created. The details of these powers is well beyond the scope of this article, but they are at least as comprehensive as those under the MDA 1971.

Conclusion

The PSA 2016 criminalises many activities that were previously lawful. The Act is complex and in places difficult to follow. It creates an entirely new range of civil powers as well as new powers of entry, search and seizure. Service providers of offending websites are potentially included if prompt action is not taken to remove these websites.

Some activity will obviously fall within the core activity the Act is intended to criminalise. However, there are likely to be many grey areas. Moreover, psychoactive substances are not treated in the same way as controlled drugs under the MDA 1971.

Challenges to the exercise of these new powers are inevitable. At this preliminary stage, three essential points emerge for supervising officers to bear in mind:

  • Mere possession of a psychoactive substance is not normally an offence. A person cannot be stopped and searched on the grounds that they might be merely in possession of a psychoactive substance. A prohibition notice cannot be given for mere possession.
  • It is expected that police officers will respect the ‘graded response’ that the Act has created, particularly in relation to the civil powers. It may not be appropriate – or even lawful - immediately to jump to the most serious sanction (criminal or civil) that the Act has created.
  • It is extremely that enforcement action is only taken following careful preparation and (at least initially) the receipt of legal advice. 

This article was first published in Police Professional.