Psychoactive Substances Act 2016

Drug pusher

Back in June 2015, I wrote about the proposed ban on psychoactive drugs and, being the pessimistic old fart I am, I predicted it would be a dogs dinner if it were ever introduced.

I must report that I was wrong. The Act is not a dogs dinner – feeding your dog on food as badly contaminated as the Psychoactive Substances Act 2016 would probably kill it.

It gets off to a bad start for me with section 1, “Overview”. This section literally tells you what the other sections say – it’s pointless and reads like the sort introduction a 14 year old might put at the start of an essay.

Section 2 weirdly defines the meaning of psychoactive substance, useful but this sort of thing used to go in the interpretation section of an act – in fact it does also appear in the interpretation section with a reference that we should go back to section 2. Oh well, I’m just being fussy now – let’s look at what a psychoactive substance is rather than criticise layout.

“2      Meaning of “psychoactive substance” etc

(1)   In this Act “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 (see section 3).

(2)   For the purposes of this Act 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; and references to a substance’s psychoactive effects are to be read accordingly.

(3)   For the purposes of this Act a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way.”

First, I have to know what the “etc” is doing at the end of the title of the section – did they put that in a draft and forget to remove it? Anyway, a substance is a psychoactive substance if it produces a psychoactive effect in the person who consumes and it is not an exempted substance. A psychoactive effect is one that, “… if stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state …” It’s almost as if they read my blog to get that definition… or stole it from the World Health Organisation like I did.

Check out subsection 3, it’s important. It tells us that consumption is when the substance enters the body in anyway, including as fumes – that’s a big clue that shit’s about to get real.

Section 3 of the Act tells us that the Secretary of State can make regulations to add, vary or remove any substance from the list of those exempted from the ban on psychoactive substances. It also tells us to check out Schedule 1 to see the current list. So, let’s do that.

I won’t reproduce the whole of Schedule 1 as it takes up too much space, but these are the items that are exempted:

1.      Medicinal products (as defined by the Human Medicines Regulations 2012);

2.      Alcohol;

3.      Nicotine and tobacco;

4.      Caffeine; and

5.      Food, including drink.

So, what about things like glue and petrol (or poppers - will nobody think of the poppers)? They can have a psychoactive affect and, as we’ve seen, inhaling fumes is included as a method of delivery. But, I hear you cry they aren’t made for that purpose so they aren’t included in the ban. Okay, well let’s check out the offences.

Section 4 makes it an offence to produce a psychoactive substance. The offence is committed if you knowingly produce a psychoactive substance and you know or suspect it to be a psychoactive substance and you intend to consume it, or you know or are reckless as to whether it is likely to be consumed as a psychoactive substance by someone else.

Let’s take superglue. Can superglue meet the definition of a psychoactive substance? Well, it can when it’s fumes are inhaled. When Loctite make it are they doing so intentionally? Yes. Do they know or suspect it to be a psychoactive substance? Yes – that’s why they have warnings on glues about using them in confined spaces. Do they intend to consume it? No… but, don’t forget they also commit an offence if they know or are reckless as to whether it is likely be consumed. Now, I used to work in a DIY shop and I can tell you I’ve had a few uncomfortable conversations with customers who we suspected might be sniffing glue. We all know people do it and so do the manufacturers. Finally, there is a defence built into the Act where an activity is exempted – but, making glue is not one of them.

So, it would appear that manufacturers of glue are committing an offence from today when the Act came into force! This also applies to petrol companies and anybody else who manufactures substances that fall within this Act. It’s also worth noting that section 56 makes directors and managers of businesses criminally liable for offences, even where the director did not know the offence was being committed and the prosecution can show he did not know due to neglect on his part. The director can then be punished as if he had personally committed the offences!

It’s also worth saying that Schedule 1 exempts medicinal products as defined by the Human Medicines Regulations 2012. We are not the only species on this planet and we have developed medication specifically for non-human animals. I’m no vet but I bet a lot of those medicines will fall within the definition of psychoactive substances and have not been exempted and are thus now illegal (ketamine anyone).

Section 5 criminalises the supply of psychoactive substances and, would appear on my reading, to include shop workers who sell glue or petrol - or vets handing out medication to pet owners . Although, it has to be said the test here is slightly harder for the prosecution to meet because we are now not talking about some abstract person as with the production offence, the prosecution must prove that the supplier knows or is reckless as to whether the person buying it will consume it or give it to someone else to consume.

It is an offence to possess a psychoactive substance in a prison but not out and about on the streets. The Act grants powers to the police to search people they suspect of committing an offence under this Act but, since it is not an offence to possess it on the street, the police do not have the power to search you if they suspect you are merely in possession.

The lack of an offence of possession, while forward-thinking, is interesting because it is an offence to be in possession with an intention to supply. An old trick of drug dealers is to keep just enough drugs on them to supply but a small enough amount to be able to argue they are merely in possession for personal use. Thus, when a dealer is arrested you can expect them to be arguing the drugs are for personal use and thus no crime has been committed.

All of the offences, except possession in a prison, carry a maximum sentence of 7 years imprisonment. Possession in a prison has a maximum of 2 years. So, if you are a director a Loctite or Shell or BP or if you are a vet you may well be committing a criminal offence that could see your business fined and you sent to prison for the better part of a decade!

On a side note, one of the chief failings of all governments has been the idea that we can trust prosecutors to behave reasonably. I do not mean this to be insulting to prosecutors but that is simply not a good basis on which to create criminal offences. We see mission creep time and again in criminal law where a law is made for one purpose and ends up being used for another. The Proceeds of Crime Act 2003 is an excellent example. Designed to tackle major criminals it made the possession of criminal property a crime. Over time prosecutors realised that the definition also fit the facts in all handling stolen good cases, except the Proceeds of Crime Act offence is easier for them to prove! We saw the same thing with the Regulation of Investigatory Powers Act (RIPA), intended to provide a frame work for police to investigate really serious crime we saw it being abused by local councils to spy on people putting their bins out on the wrong day or the wrong thing in recycling bins.

To assume that those in charge of enforcing and prosecuting crimes are now and always will be reasonable people who will follow your intentions, even when you don’t set them out clearly, is the path to tyranny.