The Psychoactive Substances Act 2016 has introduced a number of offences with the intention of putting paid to this particular industry. Legal highs are still not illegal in the hands of a user but are illegal if possessed with a view to supplying to another.
The main offences to consider under the Act include:
a) Producing psychoactive substances – section 4
b) Supplying or offering to supply psychoactive substances – section 5
c) Possessing a psychoactive substance with intent to supply – section 7
d) Importing or exporting psychoactive substances – section 8
e) Possessing psychoactive substances in a custodial institution – section 9
Section 6 of the Act tells the courts about certain aggravating features meant to be taken into account when sentencing. These are in the context of supplying or offering to supply psychoactive substances:
a) at or in the vicinity of a school
b) involved the use of a courier under the age of 18
c) took place in a custodial institution.
These three features are likely to result in some collateral litigation as there is no definition of vicinity in relation to a school and there are still so many schools that it is likely that the prosecution will seek to put before a court the distance to the nearest school(s). They will not only ignore actual distance but they may also want to point out that youngsters are walking through the relevant area to get to school. the arguments will be many.
There may be no direct evidence as to the age of a courier and in some instances the prosecutor might seek to put before the court opinion evidence as to any alleged courier. There may be arguments over whether someone was a courier as well as over their age.
The third item might be more easily dealt with as section 6 contains a definition of custodial institution and a police station is not included. However, perhaps they will be caught in the future if we have prison lockouts again and various police stations are home office designated.
The Act has tried hard to cover all eventualities and uses a very broad brush to achieve its aim. As a consequence the Act contains all sorts of exemptions that will need to be considered if the need arises. It is also not clear how prosecuting authorities will go about proving a case against a supplier. If a person arrested decides that they will not answer any questions then the prosecution will need to analyse and prove that the substance being sold is caught by the definition of psychoactive substance. Until the new law has been fully tested in court those arrested will want to consider very carefully whether it is in their interests to say anything at all.
The Act also contains detailed arrangements for dealing with premises where various activities related to psychoactive substances may be taking place. These arrangements are detailed and each case would need to be assessed separately to make sure that any orders are lawfully obtained. These are referred to as ‘civil sanctions’ and are an alternative way in which authorities can head to disrupt the new psychoactive substances industry.
A part of the Act where people could be caught out is section 48 where an offence is committed if a person obstructs an enforcement officer in the exercise of their duty. The ways in which this can happen are to be found in sections 36 to 45 of the Act. The powers are wide and people might easily refuse to co-operate thinking the officer was asking for co-operation beyond their powers.
It is also worth mentioning that the Act introduces civil sanctions that authorities and the courts can make use of but more in a disruption way.