Legal Highs & Psychoactive Substances

The Act gives the Police additional powers in relation to stop and search, entry and search of vehicles and premises, production of documents and seizure of goods where it is “reasonably believed” that there has been a supply, production or importation of psychoactive substances. Should you be affected by any of the above issues we will be pleased to assist you.

Please feel free to contact John Veale, Partner at Kangs, who has the detailed knowledge and expertise to help and guide you in this highly complex area of law.

Adding substances to the list of controlled drugs prohibited under the Misuse of Drugs Act 1971 required a recommendation from ACPO and a drawn out Parliamentary process making the process a reasonably lengthy one. In an attempt to deal with new variants of banned chemicals being introduced and sold during this legislative process the Government introduced the Police Reform and Social Responsibility Act 2011 allowing the Home Secretary to introduce “Temporary Class Drug Orders”. The imposition of such an Order effectively banned the supply (but not possession) of those named substances for a period of 12 months (or earlier if included within the categorisation system or revoked).

A number of substances have since been banned under such provisions prior to being subsequently categorised under the Misuse of Drugs Act 1971. While this proved effective in relation to specific substances it did nothing to prevent the relative ease by which chemicals could be tweaked or altered leading to a “cat and mouse” situation where those supplying Legal Highs could quickly switch supply to similar psychoactive substances that were chemically distinct enough to avoid the impact of the legislation.

In addition to the above, certain Trading Standards and Consumer Protection Laws and Regulations have been used to restrict or limit the supply of Legal Highs although the success of this has been limited. Prosecutions included the use of Consumer Protection Legislation 2008 / General Product Safety Regulations 2005 or Dangerous Substances and Preparations (Safety) Regulations 2006, particularly where products are sold through “head shops” on the high street and the package labeling is generally found to be inconsistent with the manner in which the product is sold, i.e. “not for human consumption” or “bath salts”.

Other potential legislative avenues open to prosecuting authorities include the use of Intoxicating Substances Act 1985 to restrict sales to those under 18 or the use of the Human Medicines Regulations 2012. As these legislative instruments were never passed with the sale of NPS / Legal Highs in mind the applicability of the law is questionable and has presented a number of difficulties to both Local Authorities trying to control the sale of Legal Highs as well as those attempting to sell Legal Highs in a manner allowed and consistent with the legislation listed above.

In response to the above problems the Government has introduced (following the Irish model which implemented a blanket ban in 2012) the Psychoactive Substances Act 2016. This Act was passed into law on the 28th January 2016 and effectively came into force on the 26th May 2016 banning the supply (and possession in some circumstances) of any substance (not specifically allowed such as food, medicine or substances containing alcohol, caffeine and nicotine) that is likely to be consumed for psychoactive effect.

The Psychoactive Substances Act 2016 introduced 5 new criminal offences relating to importation and supply of (including possession with intent to supply) psychoactive substances. A person found guilty of these offences would be liable to a term of imprisonment not exceeding 7 years. It is important to realise however that while simple possession of such substances in most circumstances is not criminalised, a person who imports or produces such substances, even for their own use will still be liable under the Act.

Finally, the Act also makes it an offence to possess such substances in a “custodial institution” i.e. prisons or young offender centres which carries term of imprisonment not exceeding 2 years. The Act repeals and replaces the Intoxicating Substances Supply Act 1985 and adds the importation or supply of Psychoactive Substances to the list of “Lifestyle” offences under Proceeds of Crime Legislation which has important implications for potential Confiscation Proceedings that can be pursued following a conviction.

There are significant issues in relation to the wide-ranging way this legislation was drafted. The definitions of Psychoactive Substances and how the psychoactive effect can be proved are contentious subjects where the legal and medical arguments are complex and will likely require the use of experts to give evidence. Even where a case could be proved beyond reasonable doubt no guidance has been given to the judiciary as to how such offences should be sentenced making a considered legal opinion even more important than ever should this issue of sentencing arise.

In addition to the criminal sanctions introduced under the Psychoactive Substances Act 2016, a number of wide-ranging “civil” sanctions and powers were also introduced (s.12 – 14 of the PSA 2016) giving the authorities powers to close down businesses and stop activities with limited judicial scrutiny on the fairly low evidential basis of “reasonable belief”. The specific powers outlined above can be exercised by a Senior Officer or Local Authority where it is:

• “Reasonably believed” that a person is carrying on or likely to carry on a prohibited activity (production / supply / offer of supply / importation / exporting or assisting in any of the above); and
• That it is necessary and proportionate to issue the Notice to prevent the person carrying on the prohibited activity

Such Notices must specify a duration which in any event must be for not more than 3 years. These Notices have immediate effect from the point they are served, cannot be appealed directly and do not require the involvement of the Courts before being issued. While there is no specific penalty for breaching such a Notice, failure to abide by it can lead to an application being made to the Court for a Prohibition or Premises Order which will be made if the Court believes on the balance of probabilities that the Notice has not been complied with.

A breach of such an Order without reasonable excuse is a criminal offence and carries a term of imprisonment not exceeding 2 years. It is therefore very important that should you receive such a Notice or be made subject to such a Prohibition or Premises Order that you obtain early expert legal advice. We will be able to provide you with guidance on how to proceed and challenge or appeal such applications. We are happy to take enquiries from clients and we understand that this is a developing area of law so many individuals and businesses will be anxious to resolve their legal position.