Criminalising the supply of legal highs

In the Queen’s Speech on 27 May 2015, the Government announced that new legislation will “ban the new generation of psychoactive drugs”. This Bill, it is claimed, will halt the supply in legal highs which allegedly are untested, potentially harmful and growing in popularity.

The Psychoactive Substances Bill was introduced in the House of Lords on 28 May. On 30 June, it reached the second committee stage in the House of Lords.

The Bill applies to “any substance intended for human consumption that is capable of producing a psychoactive effect”. “Psychoactive” is defined as anything which alters a brain function. Technically, this would thus include an early morning caffeine hit and an illicit afternoon square of chocolate. The Bill does however list exempt items which will fall outside the ambit of the legislation, and these exemptions include food, alcohol, tobacco, nicotine, caffeine and medical products. “Poppers” and nitrous oxide (or “laughing gas”) are within the scope of the Bill. Drugs such as heroin, cocaine and cannabis are also beyond this Bill’s scope as they will continue to be regulated by the Misuse of Drugs Act 1971.

In marked contrast to the 1971 Act, the Bill does not seek to criminalise an individual’s possession of legal highs. It seeks only to outlaw the market concerned with the production, supply, offer to supply, possession with intent to supply, import or export of psychoactive substances. The definitions of “supply” and “offer to supply” will for example, criminalise those who, having procured a legal high, then give it to a friend. This will no doubt come as a surprise to teenagers who assume they are keeping within the boundaries of the law by dabbling only in legal highs.

The maximum sentence upon conviction will be 7 years imprisonment.

There will also be a range of collateral civil sanctions available, such as prohibition notices and premises orders, and a breach of an order will be a criminal offence.

The police will be equipped with new powers to stop and search persons, vehicles and vessels, enter and search premises in accordance with a warrant, and to seize and destroy psychoactive substances.

The Bill has been criticised from a number of angles.

The Government contends that the structure of the Bill is designed to avoid the pitfall which has blighted the Misuse of Drugs Act 1971. That Act requires each prohibited substance to be specifically banned by it. This results in a reactive, long-winded process of identification and testing each time a new drug is developed. With a burgeoning and continually developing drugs market this almost half-century old legislation cannot keep up. Each time a new substance is outlawed, a new tweaked schedule to the Act has to be enacted. The House of Lords has, however, debated whether this Psychoactive Substances Bill is needed or whether it would be preferable to amend the 1971 Act to make it fit for purpose and to cover legal highs.

The Government contends that the Bill’s catch-all definition of legal highs eschews the piecemeal approach of the 1971 Act. This simplistic approach is problematic because, with such a broad range of psychoactive substances encompassed, a detailed list of exemptions and definitions to specify exactly what will not be covered is then needed. The Bill has also been attacked for what it omits to regulate; alcohol, for example, will be an exempt substance. Why, they ask, is the supply of such a harmful drug to remain legal whilst potentially harm-free, legal psychoactive substances are made subject to regulation and criminal sanction.

Another criticism stems from the Bill’s lack of application to medicinal and scientific research. Specified persons, such as healthcare professionals, are exempt under the Bill but there are concerns that the provisions are insufficient.  In an open letter sent to Theresa May, many British scientists lament that there is no exemption for research concerning new medicines and neuroscience. The Government is thus being lobbied to exempt researchers, for whom substances with psychoactive properties “are important tools in helping scientists to understand a variety of phenomena, including consciousness, memory, addiction and mental illness”.

It was acknowledged by the Government during a debate in the House of Lords on 30 June that more consideration should be given to identifying any unintended consequences of the Bill upon medicinal and scientific research and that further provision is needed to protect legitimate research. Similarly, it was accepted that consultation should be had with experts in this field.

This legislation has the potential to be a minefield so it will be interesting to see how well some of these issues are addressed. The Bill will pass to the Report Stage in the House of Lords on 14 July 2015.