Understanding The Psychoactive Substances Act 2016
The Psychoactive Substances Act 2016 came into force on 26 May, making it illegal to produce, supply, import or export a psychoactive substance that is likely to be used to get high. This glossary explains the key elements of the new Act.
An act is a new bill that has become law. Previously the Psychoactive Substances Act was known as the Psychoactive Substances Bill.
‘Custodial institution’ covers the following:
- a prison
- a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre
- a removal centre, a short-term holding facility or pre-departure accommodation
- service custody premises
As of 26 May 2016, the possession of ‘legal highs’ is illegal if you are in a custodial institution.
The following substances are not covered by the Psychoactive Substances Act:
- Drugs already controlled under the Misuse of Drugs Act 1971
- Medicinal products listed under the Human Medicines Regulations 2012
- Tobacco products
- Food and drink
Any substance that does not cause a psychoactive effect, such as poppers.
Importing drugs means bringing in drugs to the UK from another country. It’s important to understand that this also includes buying drugs from foreign websites. The importation of ‘legal highs’ (NPS) is illegal under the Psychoactive Substances Act so if you buy them online from a foreign website you could be prosecuted.
Intoxicating Substances Supply Act (1985)
The Intoxicating Substances Supply Act (1985) made it an offence to supply substances to people under 18 where the substance was not controlled by the Misuse of Drugs Act but could be inhaled for the purpose of intoxication.
This Act no longer exists as of 26 May 2016 when the Psychoactive Substances Act came into force.
The term ‘legal high’ is commonly used to describe new psychoactive substances (NPS) but it is misleading. Many ‘legal highs’ e.g. types of synthetic cannabinoids, are already controlled under the Misuse of Drugs Act, which now specifies particular drugs and also groups of drugs (e.g. synthetic cannabinoids that impact on specific receptors in the brain). Many products sold as ‘legal highs’ contain multiple NPS and many contain illegal or banned substances.
Misuse of Drugs Act (1971) (MDA)
The Misuse of Drugs Act (MDA) outlines the law around drugs that have been deemed to be harmful and are therefore ‘controlled’ by law. The MDA places drugs into A, B, or C classification - according to how harmful they are deemed to be. Higher classification is associated with harsher penalties for possession, supply and importation. MDA also places drugs into a schedule (1-5), according to whether they have any medicinal purpose. Schedule 1 drugs have no known medical value. Schedules 2-5 do have medicinal value, but have different level of control and accountability.
Drug possession means having a drug or a drug being under your control. This includes having a drug at your property if you control the property. Drugs classified under the MDA have different penalties for possession depending on their classification. As of 26 May 2016, under the Psychoactive Substances Act, it is not illegal to possess psychoactive substances which are not included in the Misuse of Drugs Act, except within a ‘custodial institution’ such as a prison.
When the law refers to the production of drugs, this means making, preparing or producing drugs by any method or contributing towards the production of a drug. As of 26 May 2016 the production of ‘legal highs’ are now illegal.
The Psychoactive Substances Act defines a psychoactive substance as follows:
“Any substance which—
(a) is capable of producing a psychoactive effect in a person who consumes it, and
(b) 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.”
Psychoactive Substances Act
The Psychoactive Substances Act came into force on 26 May 2016. The Act makes it illegal to produce, supply, import or export any psychoactive substance that is likely to be used to get high.
The Act aims to stop the sale and importation of psychoactive substances by making supply and importation illegal - including website sales. If someone buys a psychoactive substance from a website abroad, they could be prosecuted for importation.
Under the Act it is not illegal to possess a psychoactive substance (not covered by the Misuse of Drugs Act) unless you intend to supply it to others or are in a custodial institution.
To learn more about the Psychoactive Substances Act, watch the video below where we interview CGL expert, Mike Pattinson.
Stop and search
If a police officer has ‘reasonable grounds’ to suspect that you have illegal drugs on you, they are allowed to stop and search you.
Under the Psychoactive Substances Act, a police officer or customs official can stop and search you if they have ‘reasonable grounds’ to suspect that you have committed an offence under the Psychoactive Substances Act. In other words, if the police officer thinks you are producing, supplying, offering to supply, possessing with intent to supply, importing or exporting a psychoactive substance.
Read guidance on Stop and Search from Release here.
When the law refers to the supply of drugs, this includes giving drugs to someone else – even if that person is your friend and they didn’t pay you for it, offering to supply drugs to someone, being involved with the supply of drugs to someone. Supplying ‘legal highs’ is now illegal.
Temporary Class Drug Order
Since 2011 the Home Secretary has been able to put new psychoactive substances (‘legal highs’) under temporary control – making the substance a ‘controlled drug’ under the Misuse of Drugs Act. Rather than the substance becoming a class A, B or C drug, it becomes a ‘temporary class drug’.
The Home Secretary refers a drug to the Advisory Council on the Misuse of Drugs, who will assess the evidence on harms and make a recommendation back to the Home Secretary as to whether or not a Temporary Class Drug Order (TCDO) should be applied.
Once a substance becomes a ‘temporary class drug’, it is illegal to import, export, produce or supply it. The maximum penalties are 14 years’ in prison and an unlimited fine. Possession of a ‘temporary class drug’ is not an offence.
New substances can still be placed under temporary control even now that the Psychoactive Substances Act is in place.
The Advisory Council on the Misuse of Drugs (ACMD)
The Advisory Council on the Misuse of Drugs makes recommendations to government with regard to the control of drugs. ACMD is an ‘advisory non-departmental public body’, sponsored by the Home Office.