Psychoactive Substances Act 2016 a legal high or legal low?

30th May 2016 Business Crime

A psychoactive substances, otherwise known as a 'legal highs', are substances which are said to have a similar effect to controlled drugs e.g. cannabis or cocaine. They are synthetic drugs which makes them easy to mass produce and allows the manufacturer to alter the chemical structure of the substance almost immediately when the law changes.

The substances are not designed or intended for human consumption despite their graphic design. In addition, they are not tested or produced in line with any regulatory or clinical guidelines. Therefore, little is known about the effects these substances have on those who take them and cases have been reported where individuals have been hospitalised and even died.

Difficulties have arisen in drafting legislation to ban these substances due how easy it would be to change their chemical formula. However, the Psychoactive Substances Act 2016 ('PSA') has now been drafted, debated and finally received Royal Assent in January 2016. Only some sections of the act were brought into force at that time although from 26th May 2016 all sections will be force. Following which it will be illegal to produce, supply, offer to supply, be in possession, import or export psychoactive substances. The maximum sentence for all but simple possession is seven years in custody should the offence be heard at the Crown Court.

The Act describes as a 'psychoactive substance' as, 'any substance which is capable of producing a psychoactive effect in a person who consumes it, by stimulating or depressing the person's central nervous system, it affects the person's mental functioning or emotional state..'. Whilst most controlled drugs are already covered under the Misuse of Drugs Act 1971, the PSA will seek to cover any other substances which have previously evaded the statutory net.

If you are concerned that your espresso or cigarette may be caught by the act, worry not. There are exceptions to what is determined as a psychoactive substance and this includes, inter alia; medicinal products, nicotine and caffeine. In addition, schedule 2 of PSA contains further exceptions which relate to health care activities or approved scientific research.

Furthermore, to protect those who may be in possession of a substance which could be defined as a psychoactive substance, there is no simple possession offence per se in the act. This protection however would not apply to someone, for example, in prison in possession, or those who are alleged to be producing (s.4), supplying (s.5 and s.6), importing or exporting (s.8).

Should you be convicted of section 4, 5, 7 or 8 of the act, 'criminal lifestyle' assumptions will automatically apply for the purposes of confiscation proceedings.

If you are a company or individual who would like to discuss the implications of this new legislation, please contact the Business Crime and Regulation department on 0345 872 6666.

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Sam Healey is a Partner located in Manchester London in our Business Crime, Regulation & Serious Driving Offences department

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