Psychoactive Substances

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“Psychoactive substance” is defined in The Psychoactive Substances Act 2016 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.

Pursuant to S2(2) of the Psychoactive substance 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.

“Psychoactive substance” is defined in The Psychoactive Substances Act 2016.  The  Psychoactive Substances Act 2016 makes it an offence to:

• Produce,
• Supply
• Offer to supply
• Possess with intent to supply
• Import or 
• Export psychoactive substances 

The main effect of psychoactive substances is on the person's brain by either speeding up or slowing down activity within the central nervous system.

Psychoactive substances can cause an alteration in the individual's state of mind or consciousness by producing a range of effects such as:

• Hallucinations
• Changes in alertness
• Perception of time and space
• Mood or empathy with others
• Drowsiness.

The Act itself does not create an offence of possession of a psychoactive substance .

 The exempted substances are dealt with in S3 of the Psychoactive substance Act. It should be noted that they are listed as exempt either because they are already controlled through existing legislation or because their psychoactive effect is negligible.

Laughing gas in captured within the definition of substances within the Act.

 Alkyl nitrates ('poppers') are not considered to have a direct effect on the central nervous system and are therefore not covered by the definition of a psychoactive substance within the Act.  The understanding is that this is unique to 'poppers'.

S4 of the Psychoactive Substance Act creates an offence of producing a psychoactive substance. Production for these purposes covers manufacture, cultivation or any other method of production.

1. The prosecution must show that the accused intentionally produced a psychoactive substance. Accordingly, if a psychoactive substance is created inadvertently, the offence would not be made out. The accused must also have intended to produce a psychoactive substance, rather than another substance.
2. The accused must have known or must have suspected that the substance being created was psychoactive substance
3. Lastly, the accused 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.

In order to secure a conviction, the prosecution must show the person knew that the substance is a psychoactive substance and that knowledge must be based on a true belief.  Accordingly, 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 not and was another substance. 

When dealing with the concept of suspicion there must be a real possibility that the relevant facts exist. The suspicion need not be 'clear' or 'firmly' grounded and targeted on specific facts as suspicion is a subjective test and need not be based on reasonable grounds. (Da Silva [2006] EWCA Crim. 1654)

Producing a psychoactive substance is not enough. If the accused was not going to consume the substance himself, the Crown Prosecution Service must prove that the accused knew or was reckless as to whether someone else would consume it.

There are 3 mental elements to the offence of supplying a Psychoactive Substance:

The prosecution must show that the supplying of the substance is intentional.

• The accused must have known or suspected, or ought to have known or suspected, that the substance is a psychoactive substance.
• The accused 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 most common method of proving an intention to supply is by inference. Prosecutors and police will generally look for the following, from which an intent to supply may be inferred:

• Possession of a large quantity which would be inconsistent with personal use.
• Possession of uncut drugs (unusually pure state) suggesting a close connection with their manufacturer or importer.
• Possession of a variety of drugs may indicate sale rather than consumption.
• Attempts to disguise the true nature of the substance.
• Drug related equipment such as weighing scales, cutting agents, bags or wraps of foil.
• Documents or data containing information tending to confirm dealing.
• Evidence of large amounts of money 
• Extravagant life style which is only explicable if derived from drug dealing

There are three mental elements to these offences:

• The importation or exportation of the substances must be intentional.
• The accused must know or suspect, or ought to know or suspect, that the substance is a psychoactive substance.
• The accused must either intend to consume the substance themselves 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.

The offence is committed if:

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