31 May 2015

The Psychoactive Substances Bill – a fundamental shift in drugs legislation and state control.



Part 1: Commentary
Every now and then, a piece of legislation emerges which fundamentally changes the way that the State seeks to regulate how people choose to get intoxicated. The Misuse of Drugs Act was one such piece of legislation. If it becomes law, the Psychoactive Substances Bill will represent another such seismic shift.

It is essential to recognise that, whilst the Bill emerges against a backdrop of concern about Novel Psychoactive Substances (NPS), its breadth and reach far exceeds newly emergent drugs. It represents a step change in how substances are and will be regulated. 

Up until now, substances were lawful to produce and supply provided that they were not currently regulated either by the MDA or the Medicines Act. The Psychoactive Substances Bill reverses this position and says that all psychoactive substances will be illegal to produce or supply unless specifically exempted. 

This fundamentally changes the way that the State manages the risk of substances. Until now the onus has been on the State (via the ACMD) to demonstrate that any specific substance was so dangerous that it needed to be “controlled” under the MDA. Now any substance, old or new, will be automatically prohibited for production, importation or supply unless specifically exempted. It’s all too dangerous for us to access unless the state determines otherwise.

The Act to a large extent nullifies the role of the Advisory Council on the Misuse of Drugs (ACMD) as any new emergent Psychoactive Compounds are automatically covered by this Act. Their only role in relation to new drugs would be (presumably) to determine if they should also be controlled under the MDA, and if so in which Class. 

The Act contains provision to exempt specific psychoactive substances and the Secretary of State has the power to add to this list via Statutory Instrument. There is no formal or independent mechanism for such reviews to take place beyond a loose requirement that the “Secretary of State must consult such persons  as the Secretary of State considers appropriate.
The list of exemptions includes:

  • ·         Controlled Drugs and Medicines,
  • ·         Alcohol,
  • ·         Tobacco and Nicotine,
  • ·         Caffeine,
  • ·         Food.

Aside from the obvious inherent contradiction in restricting some very low-risk compounds (e.g. Nitrous Oxide) while not acting on others (e.g. alcohol, tobacco) the legislation in its current form makes prohibits supply of a number of lawful substances, such as Areca Nut (betel, paan).

This is however not the key issue. It will be relatively easy for such substances to be exempted prior to the Act coming in to force. It’s the idea that from this point on the relative risk or safety of a substance is irrelevant. If it’s psychoactive and not exempt, it is forbidden.

Because the legislation is coming at a time of ill-informed moral panic about NPS, the odds are that the legislation will be passed without significant changes to it. It’s a bad time for the sector to lose voices such as Drugscope, however muted they had become over time. The voices that have got the Government’s ear are more likely to be those who will endorse such a blanket ban.

But, ideological objections aside, will this legislation work? That in part depends on how one measures success. If the experience of the Irish Republic is anything to go by, then it will have a significant impact on so-called Head-Shops. The vast majority of Irish Head-shops closed down when similar legislation was introduced. The trade and use of NPS has not, however ceased. It’s still goes on, but more underground, akin to more traditional drug markets.

The other potential development will be the relocation of key suppliers outside of the UK. The legislation creates offences around importation, and includes requirements that can be imposed on internet service companies. However it seems likely that suppliers with websites and storage outside of the UK, and especially outside of the EU will be able to supply NPS with a low level of risk to purchasers in the UK.

In the longer term, as successors to the Silk Road emerge and stabilise, on-line sale of both old and new psychoactive substances will continue and grow via virtual markets. Ultimately, a future Government will have to recognise and accept that prohibitive responses are and will become increasingly obsolete. Sadly this Government is intellectually too myopic and ideologically opposed to any such insight and instead will leave us a terrible legacy: a piece of legislation that views all possible psychoactive substances as equally dangerous and a single response to them – ban them all.

Part 2: The legislation.

The main provisions of the proposed legislation restrict production, supply and importation of Psychoactive Substances.
 A Psychoactive Substance is defined as “is capable of producing a psychoactive effect in a person who consumes it, and is not an exempted substance.” A psychoactive effect is “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.”
In its current form the Bill creates key offences of production, supply, importation and exportation. It doesn’t make possession for personal use an offence BUT the Bill creates the power for the Police to stop and search for suspected offences under the Act, to seize substances and to destroy them.
There is also provision for the searching of vehicles, buildings etc.
The offences are:

Producing a psychoactive substance


(1) A person commits an offence if—
(a) the person intentionally produces a psychoactive substance,
(b) the person knows or suspects that the substance is a psychoactive substance, and
(c) the person— (i) intends to consume the psychoactive substance for its psychoactive effects, or (ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.
Production here means “producing it by manufacture, cultivation or any other method.

Supply, a psychoactive substance


(1) A person commits an offence if—
(a) the person intentionally supplies a substance to another person,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and (d) the person knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effect.
Additional clauses cover Possession with Intent to Supply and Offer to Supply.

Importing or exporting a psychoactive substance

(1) A person commits an offence if—(a) the person intentionally imports a substance,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and (d) the person—(i) intends to consume the psychoactive substance for its psychoactive effects, or (ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.
(2) A person commits an offence if—
(a) the person intentionally exports a substance,
(b) the substance is a psychoactive substance,
(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and (d) the person— (i) intends to consume the psychoactive substance for its psychoactive effects, or (ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

Commentary: 

One of the key challenges in drafting this legislation will have been to ensure that labelling products as “plant food” or “not for Human Consumption.”
The key wording in the proposed legislation to address this is “knows, or is reckless as to whether, the psychoactive substance is likely to be consumed”
The expectation is that a court could determine that a person was acting in a reckless way by the production or supply of compounds which a reasonable person could assume were for the purposes of intoxication, irrespective of how they were packaged.

Enforcement Powers:

In addition to the criminal sanctions of fines, imprisonment or action under the Proceeds of Crime Act, the Bill introduces new powers to prohibit activity or close premises.
Prohibition Notices could be served against individuals who are believed to be carrying out prohibited activities such as production or supply of prohibited activities, requiring them to stop any such activity.
Premises notices can be issued to people who own, manage or lease premises where there is a belief that prohibited activities in relation to Psychoactive Substances are taking place, requiring that any such activity ceases.
In situations where such notices have been breached or in other circumstances, Prohibition or Premises Orders can be issues by a court. The standard of proof for these is on balance of probability, though they could be issued as part of a sentence for an offence under the Act.

Commentary:

 If the experience of Eire is anything to go by, the Prohibition and Premises orders will be a key tool to act against shops and other retail outlets. As there is no requirement to prove to criminal standards that the any criminal breach has taken place, it will be relatively easy to enforce and effectively stop sale via shops. 

The full text of the bill can be viewed and downloaded here:
http://www.publications.parliament.uk/pa/bills/lbill/2015-2016/0002/16002.pdf

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