Psychoactive Substances

• New Psychoactive Substances
  • Public Interest
  • Youths Offenders
  • Proving that a substance is psychoactive - Forensic Evidence
• Psychoactive Substances Act 2016 - Overview
• Psychoactive Substances Act 2016 - Offences
  • Producing a psychoactive substance (s.4)
  • Supply of a psychoactive substance and offering to supply a psychoactive substance (s.5)
  • Possession with intent to supply psychoactive substances (s.7)
  • Importing or exporting a psychoactive substance (s.8)
  • Possession of a psychoactive substance in a custodial institution (s.9)
  • Supply of psychoactive substances in a custodial institution
  • Conveyance of psychoactive substances in to custodial institutions
• Psychoactive Substances 2016 - Civil Sanctions, Offence of Failure to Comply, and Forfeiture
  • Civil sanctions
  • Offences of failing to comply
  • Prohibition / Premises Order Variation following Conviction
  • Special Measures
  • Offences relating to obstruction of / failure to comply with enforcement
  • Forfeiture by court following conviction (s.55)
• Sentencing Considerations
• Confiscation
• Ancillary Tools and Powers
• Action by Other Agencies

New Psychoactive Substances

New Psychoactive Substances (NPS) mimic the effects of traditional drugs that are controlled under the Misuse of Drugs Act 1971. These substances, together with other substances used as intoxicants often referred to as 'legal highs'. The chemicals in the substances are often neither legal nor safe for human consumption.

NPS are generally sold online, or on the high street in 'head shops', and there are some reports of them being sold in non-specialist outlets, such as newsagents or petrol stations.

A "head shop" is considered by the Home Office to be a "... commercial retail outlet specialising in the sale or supply of NPS together with equipment, paraphernalia or literature related to the growing, production or consumption of cannabis and other drugs". These outlets may also have online businesses, but those parts of the business would not come within the definition of head shop, albeit they may still come within the ambit of the Act.

There is a need to make a distinction between the above-mentioned head shops and the similar 'New Age / Hippy / Lifestyle' type shop that sells handmade jewellery, local art and craft products, scented candles, oil burners etc., and which may also sell a small selection of decorative and ornamental pipes, 'bongs' and herbal or homeopathic remedies.

Public Interest

The public will expect the police to take firm action against the open retailers of NPS and where the supply of NPS took place on prison premises or in the vicinity of a school or involved the use of a courier under the age of 18. Save in exceptional circumstances, the public interest test for prosecution will be met.

In cases involving a youth offender, it is essential to ensure that all matters relevant to consideration of the public interest are clearly identified, considered and balanced against each other (see: The Code for Crown Prosecutors, in particular, paragraph 4.12d)).

Youth Offenders

Young people, in particular, may be involved with supplying psychoactive substances to friends rather than purely for profit, for example where they share a small amount of psychoactive substance with a friend in a social setting. In such circumstances, the police are encouraged to consider the full range of criminal justice interventions, in order that their actions are proportionate and take account of issues such as the person's age and history, the circumstances of the offences, community impact, and the cost of prosecution, when compared with the likely penalty. See the Supply of a Psychoactive Substance below.

The key considerations governing the decisions made by Crown Prosecutors in dealing with youths are those contained in:

• Section 44 of the Children and Young Persons Act 1933, which requires the courts to have regard to the welfare of a young person;
• Section 37 of the Crime and Disorder Act 1998, which requires that the principal aim of agencies involved in the youth justice system should be the prevention of offending by young persons; and
• The Code for Crown Prosecutors, which states that Crown Prosecutors must consider the interests of a youth, amongst other public interest factors, when deciding whether a prosecution is needed.

Prosecutors will also have regard to their obligations arising from the European Convention of Human Rights, the United Nations 1989 Convention on the Rights of the Child and the United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).

Prosecutors must consider the interests of the youth when deciding whether it is in the public interest to prosecute, although they should not avoid a decision to prosecute simply because of the suspect's age. The seriousness of the offence or the youth's past behaviour is very important.

Diversion in accordance with sections 66ZA and 66ZB of the Crime and Disorder Act 1998 the Ministry of Justice/Youth Justice Board Guidance on Youth Cautions (April 2013), the Ministry of Justice/YJB Youth Out-of-Court-Disposal Guide for Police and Youth Offending Services (April 2013) and ACPO Youth Offender Case Disposal Gravity Factor System (March 2013) may be appropriate in some cases.

In relation to youths for whom formal diversion is not an option, it is still important to ensure that a prosecution is only brought in circumstances where this is a proper and proportionate response.

Where an offence takes place within a Young Offenders Institute, save in exceptional circumstances, the public interest test for prosecution will be met.

See: Legal guidance on Children as suspects and defendants.

Proving that a substance is psychoactive - Forensic Evidence

It is for the prosecution to prove that the substance was psychoactive at the time that the offence was committed, and that it was capable of producing a psychoactive effect.

Where the investigating officer reasonably believes that a prohibited activity is being carried out or is likely to be carried out, the suspected substance must be submitted to a Forensic Service Provider (FSP) for analysis and identification. Separately, an expert witness will give an opinion as to whether the identified substance was capable of having a psychoactive effect based on analysis of the identified substance in a laboratory. That opinion will be based on a chemical reference standard produced as a result of that substance having been tested previously.

The evidential package should contain:

1. A statement from the FSP - identifying the exhibit as containing a particular chemical;
2. A statement from a laboratory technician who has subjected that chemical to testing for psychoactivity in laboratory conditions and has produced a graph setting out the results of that testing;
3. A statement from that laboratory's technical director setting out the conditions in which that testing is undertaken by reference to the Quality Standards within which that laboratory operates, and;
4. A statement from an expert witness giving an opinion based on the graph produced by the technician stating that the chemical in question is capable of having a psychoactive effect, and the reasons why. It is vital that this statement complies with the Criminal Procedure Rules and related Criminal Practice Directions.

Given the time that it may take to obtain a chemical reference standard in relation to substances that have not previously been tested, it is vital that cases are not charged on a Full Code Test prior to the above package of evidence being provided by the police. In exceptional circumstances, where a Threshold Test is being applied, the police must be in a position to advise the charging lawyer of the timescales needed to obtain the evidence.

If an issue is taken with the forensic evidence, prosecutors should endeavour (in accordance with the case management provisions of the Criminal Procedure Rules and Part 19 in particular) to identify in as much detail as possible the nature of the forensic issue in dispute, and whether the Defence is to call expert evidence.

Prosecutors should be prepared to respond to a defence stating that although a substance contains 'y' which is psychoactive, a further substance ('x') has been added and that this renders it non-psychoactive. In such circumstances, the exhibit in question will need to be tested.

Evidence that the substance is a psychoactive substance should not be in the form of a Streamlined Forensic Report (SFR) or analyst's summary. Prosecutors should seek to agree the expert's evidence at an early stage in the proceedings.

Further detail about the psychoactivity testing facility to support the Act is set out in the Home Office's Forensic Strategy. The Strategy also sets out the full details of the evidential statements required to support a charge or an application for a prohibition / premises order.

Psychoactive Substances Act 2016 - Overview

The Psychoactive Substances Act 2016 ('the Act'): defines 'psychoactive substance' and makes it an offence to produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances (the maximum penalty is seven years' imprisonment). It introduces four civil sanctions, (breach of two of the orders are criminal offences); and provides for powers to stop and search persons, vehicles and vessels, to enter and search premises (under warrant) and to forfeit seized psychoactive substances and other items.

The Act does not create an offence of possession of a psychoactive substance. As such, where the police mistakenly present a file containing such a proposed charge and there is insufficient evidence to suggest that an alternative offence has been committed, such that the possession charge can be amended (for example, possession with intent), it should be NFA'd.

Section 2 of the Psychoactive Substance Act 2016 ('the Act') defines psychoactive substance as any substance which -

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

Section 2(2) of the Act provides that 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.

The main effect of psychoactive substances is on the person's brain, the major part of the central nervous system. By speeding up or slowing down activity on the central nervous system, psychoactive substances cause an alteration in the individual's state of consciousness by producing a range of effects including, but not limited to: hallucinations; changes in alertness, perception of time and space, mood or empathy with others; and drowsiness.

An individual consumes a substance if the individual causes or allows the substance, or fumes given off by the substance, to enter the individual's body in any way, (section 2(3)). This includes injecting, eating or drinking, snorting, inhaling and smoking.

In light of advice from the Advisory Council on the Misuse of Drugs, with which Government has agreed, alkyl nitrates ('poppers') are not covered by the definition of a psychoactive substance in the Act. This is because they are not considered to have a direct effect on the central nervous system. The understanding is that this is unique to 'poppers'.

Consideration should be given as to whether the circumstances surrounding the supply of 'poppers' fall within consumer protection legislation.

Section 3 of the Act defines 'exempted substances' for the purpose of the Act, (see also: Schedule 1). The exempted substances are listed either because they are already controlled through existing legislation or because their psychoactive effect is negligible.

Section 11(1) provides that it is not an offence under this Act for a person to carry on any activity listed in subsection (3) if, in the circumstances in which it is carried on by that person, the activity is an exempted activity. 'Exempted activity' means an activity listed at Schedule 2.

Psychoactive Substances Act 2016 - Offences

Producing a psychoactive substance (s.4)

Section 4 of the Act creates an offence of producing a psychoactive substance. The conduct element of the offence is satisfied if a person produces a psychoactive substance. Production for these purposes covers manufacture, cultivation or any other method of production.

There are three elements to the offence:

• The prosecution must show that the offender intentionally produced a psychoactive substance. If a psychoactive substance was inadvertently created, the offence would not be made out. The defendant must also have intended to produce a psychoactive substance, rather than any other substance.
• The defendant must have known or suspected that the substance is a psychoactive substance.
• The defendant must either intend to consume the psychoactive substance for its psychoactive effects, or know, or be reckless as to whether, the psychoactive substance is likely to be consumed by another person for its psychoactive effects.

To show that the offender intentionally produced a psychoactive substance, it will be necessary to take into account all potential evidence found on the person and / or at the scene of the offence, his arrest or at any premises occupied or controlled by him. The evidence might show that the offender was interested in making a psychoactive substance or was producing to order for a third party, for example phone and online activity, comments made to friends or associates.

For a person to have known that a substance is a psychoactive substance, the knowledge must be founded on a true belief; a person cannot be convicted of this offence on the basis that he or she 'knew' the substance was a psychoactive substance if, in fact, it was another substance. Suspicion is a subjective test and need not be based on reasonable grounds. There must be a possibility, which is more than fanciful, that the relevant facts exist. The courts have held that 'a vague feeling of unease' would not suffice. But the suspicion need not be 'clear' or 'firmly' grounded and targeted on specific facts or based upon reasonable grounds (Da Silva [2006] EWCA Crim. 1654).

If there is evidence that the defendant intended to produce a psychoactive substance and did acts more than merely preparatory to the production of such a substance, he may be guilty of an attempt to produce a psychoactive substance.

Simply producing the substance is insufficient. If the offender was not going to consume the substance himself, the prosecution must prove that the defendant knew or was reckless as to whether someone else would consume it. The recklessness test would capture circumstances where, for example, a defendant claims he or she was manufacturing 'plant food' but knows that there is a substantial risk that the substance will in fact be consumed (indeed, that is the real intention) and proceeds to produce the substance heedless of that risk.

Penalties

This is an either-way offence, the maximum penalty on conviction on indictment is seven years' imprisonment, an unlimited fine or both.

Secondary Offences

The generic secondary offences apply to this offence, and those at sections 5, 7 and 8. Accordingly, it is an offence to encourage or assist the offence of production of a psychoactive substance (see: Part 2 of the Serious Crime Act 2007), to attempt to produce a psychoactive substance (see: section 1 of the Criminal Attempts Act 1981), or to conspire to commit the offence of production of a psychoactive substance (see: section 1 of the Criminal Law Act 1977).

Supply of a psychoactive substance and offering to supply a psychoactive substance (s.5)

Section 5 provides for two separate offences: supply of a psychoactive substance and offering to supply a psychoactive substance. For the supply offence, the conduct element is satisfied if a person supplies a substance to another person and that substance is a psychoactive substance, ('supplying' for these purposes covers distribution). The transaction does not need to result in payment or reward and would include social supply between friends.

There are three mental elements of the supply offence:

• The prosecution must show that the supplying of the substance is intentional.
• The defendant must have known or suspected, or ought to have known or suspected, that the substance is a psychoactive substance.
• The defendant must know, or be reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied or another person for its psychoactive effects.

The recklessness test would prevent a head shop proprietor escaping liability by arguing that, because the psychoactive substances sold in his / her shop were labelled as 'plant food', 'research chemicals' or 'not for human consumption', he / she did not know that the substances were likely to be consumed.

The conduct element of the offering to supply offence is that the defendant offers to supply a psychoactive substance to another person. Such an offer could take the form of an advertisement, including a catalogue of psychoactive substances on display on a website with the facility to purchase on-line.

There is one mental element to the offer to supply offence, namely that the defendant knows, or is reckless as to whether, the substance that is being offered is likely to be consumed by the person to whom it is supplied or by another person for its psychoactive effects. This element of the offence is constructed in such a way so that it would capture circumstances where a person purports to offer to supply a psychoactive substance to another person but, in fact, either has no intention of fulfilling his or her side of the deal or intends to pass off some other substance as a psychoactive substance. Subsection (3) ensures that such conduct would still be caught by the offering to supply offence.

An offence of offering to supply can be prosecuted simply by proving the existence of an offer. The prosecution does not have to prove either that the defendant intended to produce the drugs or that the drugs were in his possession. The offer may be by words or conduct (R v Showers [1995] Crim. LR 400).

In deciding whether there has been an offer to supply, prosecutors should not take into consideration principles of contract law (R v Dhillon [2000] Crim. LR 760). The fact that the drug supplied is different to that offered affords no defence - see: R v Goodard [1992] Crim. LR 588, R v Mitchell [1992] Crim. LR 723 and R v Prior (2004) EWCA Crim.1147.

Public Interest ('Social Supply')

When deciding whether to charge an offence of supply of a psychoactive substance, prosecutors should consider R v Denslow [1998] Crim LR 566 CA: Where two people agree to buy drugs for themselves, it is undesirable to charge the one who happens to take physical possession of the drugs with the supply of drugs when he does no more than distribute the other's share to him. Although technically a supply, it was inevitable that a person convicted on the basis of such distribution would be dealt with as for simple possession. Prosecutors should note that the decision in Denslow was based on circumstances where D and V were both present when D obtained the substance from the supplier and then handed it directly to V.

As there is no offence of simple possession of a psychoactive substance (save in a custodial institution), 'social supply' in these circumstances cannot be charged as possession. As such, it is unlikely to be in the public interest to continue with proceedings for supply of a psychoactive substance, in circumstances where we would not proceed with supply if the substance had been a controlled drug.

Prosecutors are reminded that the circumstances in Denslow are unlikely to apply to alleged social supply in a custodial institution.

Penalties

This is an either-way offence, the maximum penalty on conviction on indictment is seven years' imprisonment, an unlimited fine or both.

Statutory Aggravating Factors (Section 6)

Section 6 provides that it will be a statutory aggravating factor when sentencing an offender if an offence of supplying, or offering to supply, a psychoactive substance occurred in one of the following circumstances, namely it:

• took place at, or in the vicinity of, a school,
• involved the use of a courier under the age of 18
• or took place in a custodial institution.

This section only applies where the offender was aged 18 or over. Where any one or more of these three conditions is satisfied, the court is required to treat the condition as an aggravating factor when determining the sentence.

The first condition is met when a person supplies a controlled drug on or in the vicinity of school premises (as defined in section 6(3)) when they are being used by children and young people and within one hour of any such time (section 6(4)). If the school day starts with a breakfast club at 07:30 and there are after-school activities until 18:00, the relevant time would be 06:30 to 19:00. The out-of-hours use of the school property by a third party would not fall within the relevant time.

The second condition is met when a person causes or permits a child or young person under 18 to deliver a substance to a third person (the substance may not be a psychoactive substance) or to deliver a drug-related consideration to himself or herself, or to a third person, in connection with the offence of supply of a psychoactive substance (section 6(6)).

Section 6(8) defines a drug-related consideration. Such a consideration could be either a cash payment or a payment in kind.

The third condition is met when the offence was committed in a custodial institution (section 6(9)). Section 6(1) defines 'custodial institution'.

It is vital that where these factors apply to the circumstances of a case, prosecutors refer to them in their file reviews, bring them to the court's attention in any sentencing exercise and include reference, in the record of the sentencing hearing, as to whether they were applied.

Secondary Offences

The generic secondary offences apply to this offence. See: Secondary offences.

Possession with intent to supply psychoactive substances (s.7)

Section 7 provides for an offence of possession with intent to supply psychoactive substances. The conduct element of the offence is satisfied if the defendant is in possession of a psychoactive substance with a view to supplying it to another person for consumption.

There are two mental elements to the offence:

• The defendant must know or suspect that the substance is a psychoactive substance.
• The defendant must intend to supply the psychoactive substance to another person for its psychoactive effects. It is immaterial whether the psychoactive substance that is intended to be supplied is to be consumed by the immediate intended recipient or by a third person. The offence would be committed if the intended supply was to a go-between who then proposed to pass the substance on to a third person.

This possession offence is aimed at those in the supply chain. Simple possession of a psychoactive substance for personal use would not be caught by this offence. The offence could, however, cover social supply, that is circumstances where a person acquires a psychoactive substance on behalf of a group of friends and then supplies the substance to those friends. In such circumstances, prosecutors should consider the public interest in light of R v Denslow [1998] Crim LR 566 CA. Denslow will only be relevant where D and V are both present when D obtains the substance from the supplier and then hands it to V.

Evidence of Intent to Supply

An intention to supply may be proved by direct evidence in the form of admissions or witness testimony, for example, surveillance evidence.

Another method of proving an intention to supply is by inference. Evidence from which intent to supply may be inferred will include at least one or, more usually, a combination of the following factors:

• Possession of a quantity inconsistent with personal use.
• Possession of uncut drugs or drugs in an unusually pure state suggesting proximity to their manufacturer or importer.
• Possession of a variety of drugs may indicate sale rather than consumption.
• Evidence that the drug has been prepared for sale.
• Attempts to disguise the true nature of the substance, for example possession of a large amount of packaging indicating that the content is 'plant food'.
• Drug related equipment in the care and/or control of the suspect, such as weighing scales, cutting agents, bags or wraps of foil (provided their presence is not consistent with normal domestic use).
• Diaries or other documents containing information tending to confirm drug dealing, which are supportive of a future intent to supply, for example, records of customers' telephone numbers together with quantities or descriptions of drugs.
• Evidence of large amounts of money in the possession of the defendant, or an extravagant life style which is only prima facie explicable if derived from drug dealing, is admissible in cases of possession with intent to supply if it is of probative significance to an issue in the case R v Morris (1995) 2 Cr App R 69.
• Extravagant lifestyle, but only when that is of probative significance to an issue in the case. Evidence of this type is only likely to be admitted by the courts rarely.

The following may indicate that the individual has connections to supply via the internet:

• Small amounts of drugs on premises despite intelligence suggesting a much larger network.
• Postal supplies, typically large amounts of postage stamps, envelopes, jiffy bags and franking machines.
• Moisture Barrier Bags (widely used in internet transactions as they prevent scent from being detected).
• Wide range of electronic media and storage devices.
• Virtual currency.

When seeking to prove an intention to supply, it is important to consider presentational issues and, in particular, to not accept the description of the substance at face value. For example, where the substance is claimed to be 'plant food', consider whether this is a legitimate use for the substance in question, the packaging of the 'plant food' and the pricing of the same.

Penalties

This is an either-way offence, the maximum penalty on conviction on indictment is seven years' imprisonment, an unlimited fine or both.

Secondary Offences

The generic secondary offences apply to this offence. See: Secondary offences.

Importing or exporting a psychoactive substance (s.8)

Section 8 creates two new offences of importing or exporting a psychoactive substance. Due to the fact that new offences, as opposed to new prohibitions, are created, then these offences should be charged and/or indicted as offences under the Psychoactive Substances Act. Section 170 Customs and Excise Management Act 1979 is of no application to these offences.

The conduct and mental elements are the same irrespective of whether importation or exportation is alleged. The conduct element is satisfied if the defendant imports or exports a substance and the substance is a psychoactive substance.

There are three mental elements of the offences:

• The importation or exportation of the substances must be intentional.
• The defendant must know or suspect, or ought to know or suspect, that the substance is a psychoactive substance.
• The defendant must either intend to consume the substance him / herself for its psychoactive effects, or must know, or be reckless as to whether, the substance is likely to be consumed by other individuals for its psychoactive effects.

These offences cover importation and exportation of psychoactive substances for personal use as well as for the purpose of supplying others. An individual entering the country with small amounts consistent with personal use will therefore commit an offence.

The importation of the psychoactive substance may involve internet transactions. The following may indicate that an individual has connections to import via the internet:

• Small amounts of drugs on premises despite intelligence suggesting a much larger network.
• Postal supplies, typically large amounts of postage stamps, envelopes, jiffy bags and franking machines.
• Moisture Barrier Bags (widely used in internet transactions as they prevent scent from being detected).
• Wide range of electronic media and storage devices.
• Virtual currency.

Where the importation of the substance involves internet transactions, it is important to consider whether the defendant knows that he or she is importing - as an individual may claim they believed the purchase and supply were all taking place in the UK. The importation of the substances must be intentional.

Penalties

This is an either-way offence, the maximum penalty on conviction on indictment is seven years' imprisonment, an unlimited fine or both.

Secondary Offences

The generic secondary offences apply to this offence. See: Secondary offences.

Possession of a psychoactive substance in a custodial institution (s.9)

Section 9 makes it an offence to possess a psychoactive substance in a custodial institution. The offence is committed if:

• The defendant is in possession of a psychoactive substance in a custodial institution.
• The defendant knows or suspects that the substance is a psychoactive substance, and
• The person intends to consume the psychoactive substance for its psychoactive effects.

Section 11 provides an exception to the offence of Possession of psychoactive substance in a custodial institution. It is not an offence for a person to carry on the activity listed in subsection (3) if, in the circumstances in which it is carried on by that person, the activity is an exempted activity. 'Exempted activity' means an activity listed in Schedule 2.

See: Legal guidance on Drugs Offences: Throwing articles into prison.

Penalties

This is an either-way offence, the maximum penalty on conviction on indictment is two years' imprisonment, an unlimited fine or both.

Supply of psychoactive substances in a custodial institution

Where an offence takes place within a custodial institution, save in exceptional circumstances, the public interest test for prosecution will be met.

Prosecutors are reminded that the circumstances in Denslow are unlikely to apply to alleged social supply in a custodial institution.

See: Supply of a psychoactive substance and offering to supply a psychoactive substance (section 5).

Conveyance of psychoactive substances in to custodial institutions

List A of the Prisons Act 1952 has yet to be amended to include psychoactive substances. List A sets out specified items prohibited from conveyance into prisons and youth offender institutions. Annex B of the Protocol on the appropriate handling of crimes in prison identifies that the offence of conveyance (smuggling) into or out of a prison by any person, of List A items must be referred to the police.

Non-controlled psychoactive substances are not expressly prohibited from conveyance into custodial institutions. A visitor or member of staff attempting to bring non-controlled psychoactive substances into a custodial institution could be charged with supply or possession with intent to supply. The same charge is more difficult to apply to prisoners, who may be said to be bringing the drug into prison for their own personal use. It would, however, be appropriate to charge a conveyance offence.

Penalties

The maximum penalty for smuggling a List A item into prison is 10 years' imprisonment and an unlimited fine.

Psychoactive Substances 2016 - Civil Sanctions, Offence of Failure to Comply, and Forfeiture

Civil sanctions

Sections 14 - 21 provide for four civil sanctions:

• a prohibition notice;
• a premises notice;
• a prohibition order; and
• a premises order.

The civil sanctions are a 'light touch' alternative to criminal proceedings and provide a means to tackle the production, supply etc. of psychoactive substances using a progressive approach. The use of the civil sanctions enables law enforcement officers to take action swiftly or to adopt a more proportionate approach to low level offending.

Prohibition Notices and Premises Notices warn a person to stop doing a prohibited activity, or to take reasonable steps to stop it happening on a property that they own. Prohibition / premises notices are granted by a Senior Police Officer or a Local Authority Officer, once they have formed a reasonable belief that prohibited activity is being carried out at particular premises. Factors that may be taken into account when deciding whether to issue a prohibition / premises notice include whether:

• The individual has any previous sanctions (civil or criminal) under the Psychoactive Substance Act;
• The individual has any related previous convictions (for example, for controlled drugs under the Misuse of Drugs Act 1971;
• There are aggravating factors which would make escalation appropriate to make an application for a court order or criminal prosecution.

There is no direct sanction for breaching a notice but an officer may apply for a prohibition/premises order if the person fails to comply, or in aggravated cases, escalate to criminal prosecution.

Prohibition Orders and Premises Orders are granted by the court if satisfied on the balance of probabilities that the person has failed to comply with a prohibition / premises notice.

The civil sanctions do not apply to the offence of Possession with intent to supply, (section 7).

See: National Police Guidance for the Policing of Psychoactive Substances.

Prohibition Order on Conviction

A criminal court, when sentencing an offender for an offence under sections 4 to 8 (or associated secondary offences), may make a prohibition order in addition to any custodial or non-custodial sentence which the court may pass. The test for making an order is that the court considers it necessary and proportionate to make an order for the purposes of preventing the offender from carrying on any prohibited activity. The court may make an order of its own volition, but it will be open to the prosecution to make representations in this regard.

Proceedings in respect of the making of a prohibition order on conviction are civil proceedings to which the civil standard of proof applies; however the Criminal Procedure Rules would apply in the Crown Court. The court can consider evidence which was not admissible in the criminal proceedings, including hearsay or bad character evidence. It is open to the court to adjourn proceedings in respect of the making of a prohibition order. Accordingly, it would be possible to consider the making of a prohibition order after the offender has been sentenced for an offence under sections 4 to 8.

A prohibition order made on conviction may be appealed to the normal higher court as if it was part of the sentence imposed by the court (section 31).

Offences of failing to comply

Failing to comply with a prohibition order or premises order (s.27)

Section 27 makes it an offence to fail to comply with a prohibition order or premises order. The offence is triable either way. Section 27(3) provides for a defence where the defendant can show that he / she took all reasonable steps to comply with the order, or otherwise had a reasonable excuse of his / her failure to comply.

Penalties

This is an either-way offence, the maximum penalty on conviction on indictment is two years' imprisonment, an unlimited fine, or both.

Failing to comply with an access prohibition, etc. (s.28)

The offence at section 28 applies where the person against whom a prohibition order or premises order that contains an access prohibition fails to comply with the terms of that access prohibition. Section 28(2) makes it an offence for any other person, without reasonable excuse, to remain on or enter premises in contravention of an access prohibition.

Penalties

The offence is summary only, with a maximum penalty of six months' imprisonment or a fine (unlimited in England and Wales), or both.

Variation following Conviction

Section 30 enables a criminal court, when sentencing a person for an offence under sections 4 to 8 (or an associated offence) or section 27, to vary any prohibition order or premises order made against the offender which is currently in force. The court may act on its own motion but it is open to the prosecution to make representations to the court in this regard.

Special Measures

A court in England and Wales may give a special measures direction to protect vulnerable or intimated witnesses in proceedings in respect of prohibition orders and premises orders.

Offences relating to obstruction of / failure to comply with enforcement

It is an offence for a person, without reasonable excuse, intentionally to obstruct a relevant enforcement officer in the exercise of his / her powers under sections 37 to 46, (section 49(1)).

It is an offence for a person, without reasonable excuse, to fail to comply with a reasonable requirement made or direction reasonably given by a relevant enforcement officer under sections 38 to 46, (section 49(2)). It is also an offence to prevent another person from complying with such a requirement or direction.

These offences extend to the obstruction of, or failure to comply with a requirement or direction given by, a person authorised to accompany a relevant enforcement officer (such as a PCSO) to effect a search of premises, (section 49(3)).

Penalties

The maximum penalty for these offences on summary conviction is the maximum available in the magistrates' court at the material time. This contrasts with the similar offence under s.23 of the Misuse of Drugs Act 1971 which is either way.

Forfeiture by court following conviction (s.55)

Where a person has been convicted for an offence under sections 4 to 8 or 27 of the Act (or an associated secondary offence), the sentencing court must make a forfeiture order in respect of any psychoactive substances related to the offence and may make one in respect of other items that were used in the commission of the offence (section 55). The convicted person and any other person who claims ownership of the items are entitled to make representations to the court, and a forfeiture order does not take effect until the time for lodging an appeal has lapsed or until the outcome of any appeal.

Sentencing Considerations

The Sentencing Council has published guidelines about Producing a Psychoactive Substance (section 4 Psychoactive Substances Act 2016) and Supplying, or offering to supply, a psychoactive substance / Possession of a psychoactive substance with intent to supply.  The guidelines are effective from 1 April 2021.

Confiscation

Part 2 of the Proceeds of Crime Act 2002 (POCA) provides for the making of confiscation orders to confiscate assets gained through criminal activity from offenders, after conviction, (see Schedule 5).

See: Legal Guidance on Proceeds of Crime.

Ancillary Tools and Powers

See: Civil Sanctions.

In addition to the Civil Sanctions introduced by the Psychoactive Substance Act 2016, police and local authorities may opt to use tools and powers introduced by the Anti-Social Behaviour, Crime and Policing Act 2014:

• Community Protection Notices (CPN) under Part 4, Chapter 1 Anti-Social Behaviour Crime and Policing Act 2014 - CPNs can be issued by the police or a local authority to individuals, organisations or businesses (such as head shops) if the issuing agency is satisfied on reasonable grounds that their conduct is having a detrimental effect on the quality of life of those in the locality, is persistent or continuing nature and is unreasonable. Before a CPN can be served, a written warning must be issued informing the perpetrator of the problem behaviour, requesting them to stop, and the consequences of continuing with it. Failure to comply is a criminal offence punishable by a fine.
• Public Space Protection Orders (PSPO) under Part 4, Chapter 2 Anti-Social Behaviour, Crime and Policing Act 2014 - PSPOs aim to tackle anti-social behaviour in a specific area. PSPOs can make requirements, or prohibitions, or both within an area. PSPOs can apply to specific people within an area, or to everyone within that area. The order can also apply at all times, or within specified times and equally to all circumstances, or specific circumstances. PSPO requirements could include preventing individuals from taking intoxicating substances including NPS. Failure to comply with either a prohibition or requirement within the order is a criminal offence, punishable by a fine or a Fixed Penalty Notice.
• Closure of premises associated with nuisance, disorder etc under Part 4, Chapter 3 Anti-Social Behaviour, Crime and Policing Act 2014 - The police or council can issue a closure notice if the use of a particular premises has resulted or is likely to result in nuisance to members of the public, or there is likely to be or has been disorder near the premises which is associated with the use of that premises. The closure notice can be used to prohibit access to premises by anyone other than the owner or someone who lives there for up to 24 hours. The closure notice can be extended to 48 hours where the chief executive or superintendent signs the closure notice. Whenever a notice has been issued the council has to apply to the Magistrates court for a closure order, with the application heard within 48 hours of the notice being served. The court can then make a closure order which can prohibit access to the premises for up to three months. The original applicant for the closure order may apply for an extension to the Magistrates court which can last for no more than six months in total.

Guidance on the powers available to the local authority in order to tackle NPS has been published by the Local Government Association (A councillors' guide to tackling new psychoactive substances) and the Home Office (Guidance for local authorities on taking action against "head shops" selling new psychoactive substances (NPS)).

Action by Other Agencies

National Police Guidance for the Policing of Psychoactive Substances sets out that, in addition to the Psychoactive Substance Act 2016, officers should be mindful that other legislation may be relevant and useful. Officers should contact their local Trading Standards Office for further advice with regard to:

• General Product Safety Regulations 2005 - production and distributing dangerous products believing they are to be consumed.
• Chemicals (Hazard Information and Packaging for Supply) Regulations 2009
• Local Government Act 1972
• Local Government Act 2000
• Consumer Protection from Unfair Trading Regulations 2008 - protecting consumers from misleading information about substances such as their effects on consumption.

Officers are encouraged to contact their local Medicines and Healthcare Products Regulatory Agency in connection with offences arising from the Medicines Act 1968.