Psychoactive Substances (‘Legal Highs’)

The Psychoactive Substances Act 2016 came into force on 26th May 2016, after a short delay from the original date. Psychoactive substances are also known as “legal highs”.

The Act makes it an offence to produce, supply (including importing and exporting) or offer to supply any psychoactive substance. Possession is not an offence, unless the person is in a ‘custodial institution’, for example, prison, young offender centre, removal centre etc. or if it is “possession with intent to supply”.

A psychoactive substance is defined in the Act as any substance that is:

  1. capable of producing a psychoactive effect in a person who consumes it, and
  2. is not an exempted substance (see section 3).

For the purposes of this Act 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; and references to a substance’s psychoactive effects are to be read accordingly.

The Act has a detailed Schedule of “exempted substances”, but these basically are food, alcohol, tobacco, caffeine and medical products and substances already controlled by the Misuse of Drugs Act. It was originally thought that “poppers” (amyl nitrite and similar substances) were going to be covered by the Act, but in March the Government made clear that poppers are NOT now included following advice by The Advisory Council on the Misuse of Drugs (ACMD) who reported that poppers only produced “peripheral effects” on the brain and so are not a “psychoactive substance”.

The key intention of the Psychoactive Substances Act is to stop shops (“head shops”) and websites that currently trade in ‘legal highs’ supplying such substances.

Implications For The Defence

The establishment of this Act has been quite controversial, with claims that the Government have rushed through the legislation and not paid enough attention to, for example, the definition of “psychoactive”. The Government have said that they are confident that psychoactive substances can be defined, tested simply and cost effectively and subsequently proven in court. However, the Advisory Council on the Misuse of Drugs and other bodies have argued consistently that the definition used is too broad and is unworkable in practice.

Just before the Act came into force, the Government published a document titled, “Psychoactive Substances Act 2016 – Forensic Strategy” on its “Circular 004/2016: Psychoactive Substances Act 2016” webpage. The Strategy document outlines its recommendations for 2 in-vitro tests (tests carried out outside the body) to determine if a substance is psychoactive. But many people believe these tests are not robust, for example, Dr Stephanie Sharp, a forensic pharmacologist and the co-founder of the Glasgow Expert Witness Service, was reported in The Independent newspaper on 26 May 2016  saying  “Any self-respecting barrister could find an expert pharmacologist to counter any attempt to ‘prove’ psychoactivity using these tests.” That same article included the sentence “Forensics experts, pharmacologists and lawyers say the ban will be “fraught with difficulty” and open to being defeated by “any self-respecting barrister“.

As with many new pieces of legislation, it is likely that Police will be looking to enforce the new Act with some vigour. There has been a lot of public pressure on the Home Office to do something about the rapid rise in the use of “legal highs”, especially in young people, and with The Office for National Statistics (ONS) having warned of “a marked increase between 2011 and 2013 in the number of deaths where legal highs were involved”.

So, we believe it is important for cases involving “legal highs” to be looked at carefully, especially in the interpretation of any analytic results.

Other sources of information:

Psychoactive Substances – Legal Highs – the Psychoactive Substances Act 2016: forensic science implications: expert services from Forensic Access

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