Criminal Defence Blog

What is the Psychoactive Substances Act?

And more importantly – how could it impact upon me?

The Psychoactive Substances Act (PSA) was given its Royal Assent on the 28 January 2016 and will come into force on the 6 April 2016. The Act makes it an offence to produce, supply or offer to supply any psychoactive substance if the substance is likely to be used for its psychoactive effects regardless of its potential for harm. Offences are triable either way with the volume and value a determining factor of penalty.  This means that cases can be heard in the magistrates or Crown Court.  This does mean that simply being in possession of a psychoactive substance is not an offence unless the offender is in a ‘custodial institution’ at the time it is committed.

The Act is clear in its description of what can be considered a ‘psychoactive substance’:

“any substance which is capable of producing a psychoactive effect in a person who consumes it”

with further detail given as:

“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”

The Psychoactive Substances Act applies to all substances which can be used to get high, the possibilities for which are extensive and will include items which some may consider surprising (for example Nutmeg can have psychoactive properties however for most it is simply a food item and is recorded as an exception to the act).  The onus is on the sellers and producers of a substance to ensure it is not likely to be consumed for psychoactive effects.

The Psychoactive Substances Act does not apply to those substances already controlled by the Misuse of Drugs Act, such as nicotine, alcohol, caffeine and medicinal products. As the Act does not replace the Misuse of Drugs Act laws around existing illegal or controlled drugs remain the same.

The Psychoactive Substances Act does not make possession an offence as the aim of the act was not to lead to mass prosecution of individuals, it was to criminalise those who would sell and encourage the use of those ‘legal highs’ – thus allowing for the shops and websites that trade in these to be shut down.  The Police will have powers to stop and search and powers granted to the police and local authorities to deal with the owners of the shops and UK Based websites supplying these drugs.

Sentencing will take into account both the volume and value of the goods to be considered and any other aggravating features (such as being targeted towards minors).

Penalties:

This is a new Act, creating new offences, and as such there will be questions raised regarding the implementation – the Association of Chief Police Officers  are expected to issue further guidance to their forces before the Act comes in to power. The Advisory Council on the Misuse of Drugs (ACMD) have previously been asked to review any substances of concern to assess any potential harm though may not be required to under the new Psychoactive Substances Act (though could still be called to comment under the Misuse of Drugs Act). The ACMD have, however argued that the definition of ‘psychoactive substance’ is too broad and unworkable in practice – with the onus then being that any new, emerging substances, would need to be identified, tested for harm and proven in court to be psychoactive.  This does mean that there may be areas to explored by way of a defence!

If you are arrested on any of the above charges then give the Forrest Williams team a call on 01623 397200 and any of the team will be happy to help you.