1. Psychoactive Substances Act 2016 Angela Scrutton Drugs Legislation Drugs and Alcohol Unit | Home Office

2. Context to the Act. Breakdown of definitions, offences, powers. Implementation. PS Act 2016 - summary 2

3. Home Office appointed an Expert Panel in December 2013 to look at: “whether, and if so how, the legislative framework for responding to NPS could be enhanced beyond the current approach under the Misuse of Drugs Act 1971, as well as looking at how our health and education response needs to be developed”. The Expert Panel reported in September 2014, making 31 recommendations covering: - legislation - information sharing - understanding availability - prevention and education - skills and workforce - data collection and research Why legislate? - NPS Review Expert Panel

4. Scottish Government’s NPS Expert Panel Welsh Assembly’s Health and Social Care Committee’s Inquiry into NPS Experience of the Republic of Ireland in particular Other drivers for this legislation 4

5. To give effect to the Conservative Party’s manifesto to: "create a blanket ban on all new psychoactive substances, protecting young people from exposure to so-called legal highs” To end the open sale of psychoactive substances from high-street retailers and UK based websites To complement the Misuse of Drugs Act 1971 To form part of the Government’s balanced drugs strategy. To not duplicate or infringe on any existing regulatory regime To avoid driving the psychoactive substance market – e.g. by broadly defining a substance, capturing both natural and synthetic substances and not including numeric values or specific tests. To not hinder any legitimate use of psychoactive substances such as in healthcare, research or industry. To contain a range of proportionate and scalable sanctions. PS Act: Purpose/objectives 5

6. 1971 Act remains the apex of drug legislation PS Act is a lower regime of “control” to 1971 Act PS Act 2016 vs Misuse of Drugs Act 1971 6 MDA 1971P S Bill Possession offenceNo possession offence Strict liability offencesMore nuanced mens rea in offence All uses including research (with requirement to have licence at cost) Human consumption only and medicines fully exempted Max penalties : 14 years - lifeMax Penalty : 7 years No civil sanctionsRange of civil sanctions

7. No established international definition Clause 2 defines a “psychoactive substance” as: “a substance capable of producing a psychoactive effect in a person who consumes it” 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” Is not an exempted substance Based upon the Irish definition with some modifications Definition has been drafted deliberately broad Proving “psychoactivity”: challenging new evidential requirement Definition of a psychoactive substance 7

8. The Act’s scope is narrowed by: exemption for substances (Schedule 1) controlled drugs, medicinal products, alcohol, nicotine and tobacco products, caffeine and food. exemption for activities (Schedule 2) activities by healthcare professionals in the course of their duty and bona fide scientific research nature of the offences much more narrow than 1971 Act Narrowing the Act’s scope 8

9. 1.Produce (s4) 2.Supply (s5) 3.Offer to supply (s5) 4.Possess with intent to supply (s7) 5.Import or export (s8) 6.Possession in a custodial institution (s9) Penalties : 7 years (and unlimited fine) (Indictment) 6 months (and unlimited fine) (Summary) 7.Failure to comply with a prohibition/premises order (clauses 25 and 26) 8.Obstructing enforcement officer powers (clause 47) Criminal offences 9

10. 1.The supply must be intentional 2.The defendant must have : a.known or suspected ) that the substance b.ought to have known or suspected ) was psychoactive 3.The defendant must know, or be reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied (or another person) for its psychoactive effects Reckless test to tackle mis-description Proof of consumption AND for its psychoactive effects – hang together Key mental elements of the offences (supply) 10

11. Seizure and disposal (s43/50)/ Forfeiture at border (clause 54) Prohibition/Premises Notice (clauses 12-15) Prohibition/Premises Order (clauses 16-21) Criminal sentence Proportionate Disposals 11

12. Police, NCA officers and customs officials have bespoke powers: –to stop and search a person where they have reasonable grounds to suspect the person has committed, or are likely to commit, one of main offences (s36). –to search vehicles, vessels and aircraft (if not a dwelling) if an officer has reasonable grounds to suspect they contain evidence of an offence. –(also given to local authorities) to enter and search premises in accordance with a search warrant and may seize any psychoactive substances or other items that may be evidence of an offence under the Bill Border Force officers given access to CEMA 1979 powers. Enforcement powers 12

13. Commencement: Spring 2016 Forensic Strategy – delivered by Home Office’s Centre for Applied Science and Technology Guidance: Enforcement, Retail and Research Communications strategy: –Lead up to commencement: sellers –Commencement onwards: young people/users Implementation 13

14. Enquiries before and after implementation: psact@homeoffice.gsi.gov.uk 14