Legal Highs | The Psychoactive Substances Act 2016 – A step too far?

Legal Highs have been in the news recently and the passing of the new legislation in this area has fuelled the debate even more. Dean Phillips of Kangs Solicitors provides some guidance in relation to the recent legislative changes relating to Legal Highs and Psychoactive Substances.

The announcement, passing of the Psychoactive Substances Bill and its enactment as the Psychoactive Substances Act 2016 has been widely contentious, subject to multiple criticisms due to its widely drafted provisions and is plagued with doubts as to its enforceability given the questionable forensic ability in proving whether a compound is actually capable of producing any psychoactive effect within a person.

Is the Psychoactive Substances Act 2016 too widely drafted?

The definition used in s.2 of the PSA 2016 was deliberately drafted to be wide ranging and includes any substance that “is capable of producing a psychoactive effect in a person who consumes it” (and is not listed as exempt under Schedule 1 of the Act).  The Act goes on to define a substance as having a psychoactive effect on a person if:

“by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”

The PSA 2016 marks a fundamental departure in the legislative approach in England and Wales where a person’s rights were generally implied unless otherwise prescribed by law. This is clearly seen in the Misuse of Drugs Act where substances are deemed to be legal to supply and possess unless explicitly stated as being banned under the Act. The PSA 2016 reverses this approach, introducing a blanket ban unless the substance is explicitly allowed.

Due to the incredibly wide ranging definition of ‘psychoactive effect’ the supply of any and all substances are effectively prohibited unless specifically listed as “exempted substances” (as listed in Schedule 1 and currently including Alcohol, Nicotine, Caffeine and substances ordinarily consumed as Food or Drink) or the supply is in relation to an Exempted Activity under s.11 of the Act (Healthcare related activity and / or Research). Whether or not the psychoactive substance has any harmful effects is irrelevant for the purposes of this legislation unless the Secretary of State could be persuaded, under powers included within s.3 of the PSA 2016 to add such a substance to the list of exempted substances by way of statutory instrument approved by resolution of each House of Parliament.

Alkyl Nitrates and the requirement for a “direct” effect on the Central Nervous System

Throughout the passage of the Bill that became the Psychoactive Substances Act concerns were raised by many bodies, including the Advisory Committee on Misuse of Drugs (ACMD) and the MP Crispin Blunt regarding the proposed inclusion of Alkyl Nitrates. This prompted a review by the ACMD which reported in March 2016 that the legislation was silent as to whether a substance would need to cause a direct effect on the central nervous system (rather than an indirect or peripheral effect). Their conclusion was that Alkyl Nitrates did not directly act upon the brain, any psychoactive approach being only peripheral and therefore it should not be caught under the Act.  This view was confirmed by the Home Office Minister Karen Bradley on the 22^nd March 2016 as the official position of the Government. It is very likely therefore that where this legislation comes before the Courts, this narrower definition is likely to be favoured.

She said she agreed with the Advisory Council on the Misuse of Drugs that only substances that “directly stimulate or depress the central nervous system are psychoactive”, and should come within the blanket ban on the sale of legal highs.

How can the prosecution prove psychoactive effect beyond reasonable doubt?

While in the small number of prosecutions brought under the Irish legislation the psychoactive effect was proved through the use of expert medical and forensic testimony in Court, it has been suggested that in the UK the Psychoactive Substances Act would be supported by “a separate forensic strategy centred on in vitro testing” (Home Office response to ACMD). Based on evidence given before Home Affairs Committee during the passage of the bill reference was made to testing in a lab setting the suspected psychoactive substance against the 5 – 6 receptors found in the brain that respond to known psychoactive substances. Recent government publications support this stance where it is stated that:

“The UK will be the first country in the world to put in place a rigorous system of testing to demonstrate that a substance is capable of having a psychoactive effect, providing evidence to support civil action and prosecutions”.

It is as yet unknown whether this method of proving psycho-activity would be open to challenge and might still require the use of medical and forensic evidence

Kangs Solicitors can represent companies or individuals who have been alleged to become involved in the importing and selling or distributing of ‘Legal Highs’. We are experienced in cases where chemicals have been stopped and impounded by HMRC and condemnation proceedings begun in order to destroy the goods. Please feel free to contact Dean Phillips at Kangs for an initial consultation and advice.

Will ordinary users of Psychoactive Substances be criminalised?

While the PSA2016 does not make it an offence to possess psychoactive substances (outside of a custodial institution) it is very likely that the ban on supply will force High Street and UK sellers to close down as was the case in Ireland following the passage of their legislation.

There is an obvious danger (as was the case in Ireland) that a large number of suppliers will set up as internet based suppliers physically based outside the UK.

Under s.8 of the PSA 2016 a person purchasing psychoactive chemicals from such a supplier will be committing an offence even if the psychoactive substances are for their own use (s.8 (1) (d)) and could be facing a custodial sentence of up to 7 years as a result.

What about Nitrous Oxide, Chocolate and Nutmeg?

Food (and drink) “ordinarily consumed as food” (not containing a prohibited ingredient) is listed as a category within the exempted substances in Schedule 1 of the PSA 2016 and therefore items such as chocolate and nutmeg (which do have some psychoactive effect) are excluded from the legislation.

Nitrous Oxide has been recognised by the ACMD as having psychoactive effects when inhaled. When Nitrous Oxide is used in food preparation (typically as a propellant in whipped cream or other such foodstuffs) it would not be seen as a prohibited ingredient and therefore sale of foods containing Nitrous Oxide would be exempt.

As Nitrous Oxide could not be said to be “ordinarily consumed as food” in and of itself however its supply would not fall under the “food” exemption and any intentional supply / importation of Nitrous Oxide where the supplier / importer knows or is reckless as to whether the Nitrous Oxide is to be consumed for its psychoactive effects, that person would be guilty of an offence.

What does the future hold for Psychoactive Substance Use in the UK?

The Psychoactive Substances Act 2016 is a further advancement in the “War on Drugs” and the Governments answer to the markets response of creating “legal” alternatives to banned substances.

The move by the UK legislature comes at a time when the wisdom of increased criminalisation of drugs is being widely questioned as evidence suggests that prohibition does little to actually discourage users (evidence suggesting that use of such substances in Ireland and Poland have actually increased since impositions of blanket bans), with further studies showing that medical and educational intervention (which has been shown to help reduce drug use and associated harms) is actively discouraged as usage is driven “underground”.

By far the largest criticism of the Psychoactive Substances Act 2016 comes from the lack of recognition as to the harms caused by those substances now banned (including concerns voiced by the Advisory Council on the Misuse of Drugs), a position that will inevitably be compared to the list of the known harms, both personal and to society, of the exempted substances “Alcohol, Nicotine and Caffeine”.

While the Psychoactive Substances Act 2016 has taken the step not to criminalise possession for those outside of “custodial institutions” the very real concern is that by shutting down the physical presence of suppliers within the UK to an online presence based outside the UK numerous people will be criminalised for importation despite the substances being imported for their own use.

How the Psychoactive Substances Act 2016 will impact society and the use of such substances will need to be closely monitored. Evidence from the Irish ban as to the effectiveness of a blanket ban is not promising with increased use being reported and limited convictions.

In the UK a small number of arrests have already been made under these new offences in the Act  (although it remains to be seen if and how these will be prosecuted if charged) and numerous suppliers have shut down and ceased trading. Whether these initial arrests and closures will lead to a reduction in the harm caused by taking drugs remains to be seen.

If you wish to see any additional advice in relation to this new Act or in relation to ‘Legal Highs’ generally, please feel free to contact Dean Phillips at Kangs Solicitors who will be pleased to assist you.