This new law is scheduled to come into force in April 2016.
It defines a psychoactive substance as one that is “capable of producing a psychoactive effect in a person who consumes it and is not an exempted substance”.
A psychoactive effect is defined as one that is “stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”. In other words any mood-altering drug or substance.
Exempted substances include alcohol, tobacco, nicotine, medicines, caffeine, foodstuffs, homeopathic medicines and drugs already controlled under the Misuse of Drugs Act (what we regard as illegal drugs such as cannabis, cocaine, heroin, ecstasy etc).
Offences under the new law are: to produce, supply, offer to supply, possess with intent to supply, import or export any non-exempted psychoactive substance.
There is no offence of simple possession but it will be illegal to produce for personal use, import from a foreign website or possess in a custodial institution, such as a prison.
The penalties can result in a maximum of 7 years imprisonment and an unlimited fine. There are also civil sanctions of prohibition and premises notices and orders.
The police and customs powers will include stopping and searching individuals on ‘reasonable’ suspicion and entering and searching premises and vehicles.
Implications and issues
- The new law is not based on evidence about the harm that various drugs may cause. It is driven by panic and fear. There has been very little discussion about it in parliament or in the media and little consultation with experts in the drugs field. The Government’s own Advisory Council on the Misuse of Drugs has been side-lined………again!
- Its likely impact is that it will result in:
- The closure of many UK headshops, or at least the removal of new psychoactive substances (NPS or ‘legal highs’) from their shelves.
- The closure of most UK webshops that sell NPS/legal highs.
- The passing of the NPS/legal highs trade to illicit drug dealers, alongside their sales of controlled/illegal drugs.
- It will criminalise more people, especially young people. Whilst there is no possession offence many will be vulnerable to being prosecuted for possession with intent to supply (including when supplying friends as a favour and at no profit) and importing by purchasing from foreign webshops.
- The new law will also make it an offence to supply poppers and nitrous oxide. Poppers have been particularly popular amongst gay men because they relax anal muscles to make anal sex easier and less painful. The new law will have negative effects on their sex lives and may lead them to seek alternatives drugs which are more dangerous to use. There is confusion over the practicalities of banning nitrous oxide because of the use of canisters in the food industry to make whipped cream. There is also confusion over the status of herbal medicines, vitamins and health supplements.
- The PSB will give police more powers, make life difficult for them and lead to more stressful relationships with (young) people and communities. There will be an increase in testing substances to see what they are and whether they are controlled under the Misuse of Drugs Act, other psychoactive substances or what.
- The implications for the use of various substances in some industries and for scientific research are unclear.
- Is the new law enforceable? There is no clear or agreed definition of what ‘psychoactive’ means. Cases might be appealed in court by questioning the definition of ‘psychoactive’. Lots of things in life can stimulate or depress the central nervous system and affect mental functioning or the emotional state.
- The new law is unlikely to reduce NPS use. Evidence so far suggests that blanket bans do NOT reduce prevalence of drug use. Research suggests that the 2010 Irish NPS ban led to increased use. Similar results were found following the ban in Poland.
- NPS being mainly available through illegal drug supply networks will result in a decrease in quality control and less accurate and useful consumer safety information being given. Headshops and webshops are much more likely to offer better quality control and safety information than street dealers. The new law is thus more likely to increase casualties, harm and deaths, not decrease them.
- If the new law is effective in limiting supplies of NPS in some cases, users are likely to switch to alternative drugs, which may be more dangerous than the drugs they were using in the first place. It may lead to an increase in use of controlled drugs, particularly cannabis, ecstasy, cocaine, mephedrone, ketamine and LSD.
Both are very significant. As I explain in some detail in my new book there are now hundreds of different legal highs being sold in this country. They can sometimes be sourced from dealers who sell illegal drugs but the main supply is through the many and growing number of headshops in cities and larger towns, from other retail outlets including some garages and even car boots and over the internet. This means young people have much easier access to a wide range of relatively cheap drugs, often without any contact with drug dealers or putting themselves at risk of breaking the law.
Many legal highs will be unfamiliar to young people who use them and some have dangerous effects, especially if taken in large quantities and/or with other drugs. We have started to see more deaths related to legal highs, many it would seem when young people have not been clear about what they have taken, how much it is safe to take or the implications of combining use of legal highs with other drugs.
Buying drugs over the internet has increased significantly, especially, but not only, for legal highs. All it takes is a credit card order and the drugs are delivered in a package to your door by mail or courier very soon, possibly the next day. There is also a growing market for buying illegal drugs over the internet, often using encrypted websites that make it very difficult for the authorities to trace sellers or buyers. The internet is likely to become an increasing feature of drug supply and markets in the future.
Ease of availability of legal highs and of drugs through the internet raises serious questions about our existing drug laws because there are now so many ways to obtain drugs without breaking the law or by reducing the likelihood of being caught. Countries such as Portugal, Uruguay and New Zealand and also some American states are beginning to experiment with new and less draconian drug controls. Hopefully, more informed debate about new ways of controlling drugs, and finding sensible ways of reducing the harm that can follow from using drugs, will develop in the UK.