psychoactive substances act - the end of 'legal highs'

This new Act comes into force on 26th May 2016 and contains provision about psychoactive substances. The purpose of the Act is to criminalise 'legal highs' which are causing great concern given the number of reported incidents where people have been hospitalised and even fatalities.

The meaning of “psychoactive substance” is any substance which: (a) is capable of producing a psychoactive effect in a person who consumes it, and (b) is not an exempted substance.

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.

There are some exempted substances which include: controlled drugs, medicinal products, alcohol, nicotine and tobacco products, caffeine and food or drink.

In the Act a “prohibited activity” means any of the following activities: (a) producing a psychoactive substance that is likely to be consumed by individuals for its psychoactive effects; (b) supplying such a substance; (c) offering to supply such a substance; (d) importing such a substance; (e) exporting such a substance; (f) assisting or encouraging the carrying on of a prohibited activity.

If found guilty and being sentenced before the Magistrates Court a person is liable to imprisonment for a term not exceeding [6] months or to a fine, or both. On conviction in the Crown Court a person is liable to imprisonment for a term not exceeding 7 years or a fine, or both. Possession of a substance in custody is limited to a maximum term of 2 years.

This new Act poses many questions and potential problems for the prosecution. Will the police be testing the substances, and if so what are they testing for? To what standard or level can a substance be deemed to be capable of having a psychoactive effect? Surely this test is subjective?

So here begs the question, how should one respond to such an allegation in interview? How can the prosecution prove all elements of the offence if the accused neither confirms nor denies whether the substance result ‘psychoactive’ effects? The accused therefore should perhaps seriously consider their right to silence in order not to strengthen the case against them.

For further advice and guidance with regards psychoactive substances and the implementation of the new legislation please contact our experts on 0161 827 9500 or email [email protected]