Psychoactive Substances Act 2016

Written 25th May 2016 by Olliers Solicitors

Max Saffman, Specialist Criminal Lawyer, considers the introduction of the Psychoactive Substances Act 2015

For years the legislators have been playing cat and mouse with the chemists. New chemically formulated ‘legal highs’ were hitting the streets. Local police forces and hospitals gathered statistics as to the harm they caused. The information is collated and referred to the Advisory Council on the Misuse of Drugs who made recommendations and statutory instruments were passed to make possession and distribution illegal. The chemists would then alter the formula slightly and  rebrand the drug so they fell on the right side of the law and the cycle began again.

Psychoactive Substances Act 2016

Over the last few years the harmful effects of ‘legal highs’ have been well documented in the media and Chris Grayling last week blamed legal highs as the main problem affecting prisons in England and Wales. The answer to this new problem is the broad brush approach of the Psychoactive Substances Act 2016.

Why broad brush? Let’s look at the definition:-

‘A psychoactive substance is a chemical substance that acts primarily upon the central  nervous system where it alters brain function resulting in temporary changes to perception, mood, consciousness and behaviour’.

The good news is, that exempt from this act are the following psychoactive substances:-  nicotine, alcohol, caffeine (collective sigh of relief) and medicinal products. After much debate in the Commons ‘poppers’ and amyl nitrate are also exempt. I would love to see the justification why these are exempt, but I digress.

Interestingly it is not an offence to possess such substances (unless in a custodial setting) but only to supply/offer to supply, import or export. The maximum sentence is up to 7 years imprisonment on indictment.

This is an interesting piece of legislation. For offences within a custodial sentence is it open to a potential defendant to argue that possession of a particular substance didn’t cause him or her changes to perception etc. Further I’m intrigued by the use of the word ‘temporary’. If use of these substance was to cause permanent changes to perception etc, is this a defence? The word temporary adds nothing in my view.

Lawyers will be pouring over the fine detail and forensic chemists will have an increased work load investigating and disecting these weird and wonderful substances to ascertain whether they fit into the wording of the legislation. For instance would a compound made up of legal psychoative substances, combined together create something illegal?

It may be the game of cat and mouse has a life left in it yet.

Olliers Solicitors – Specialist Criminal Defence

Written by Max Saffman. Max is a Higher Court Advocate and specialises in the defence of serious crime.

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