Psychoactive Substances Bill (HC Bill 88)

Introductory

1 Overview

(1) This Act contains provision about psychoactive substances.

(2) Section 2 defines what is meant by a “psychoactive substance”.

(3) 5Sections 4 to 10 contain provision about offences relating to psychoactive
substances.

(4) Section 11 provides for exceptions to those offences.

(5) Sections 12 to 35 contain powers for dealing with prohibited activities in
respect of psychoactive substances, in particular powers to give prohibition
10notices and make prohibition orders.

(6) Sections 36 to 54 contain enforcement powers.

Psychoactive substances

2 Meaning of “psychoactive substance” etc

(1) In this Act “psychoactive substance” means any substance which—

(a) 15is capable of producing a psychoactive effect in a person who consumes
it, and

(b) is not an exempted substance (see section 3).

(2) For the purposes of this 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; and references to a
substance’s psychoactive effects are to be read accordingly.

(3) 5For the purposes of this Act a person consumes a substance if the person causes
or allows the substance, or fumes given off by the substance, to enter the
person’s body in any way.

3 Exempted substances

(1) In this Act “exempted substance” means a substance listed in Schedule 1.

(2) 10The Secretary of State may by regulations amend Schedule 1 in order to—

(a) add or vary any description of substance;

(b) remove any description of substance added under paragraph (a).

(3) Before making any regulations under this section the Secretary of State must
consult—

(a) 15the Advisory Council on the Misuse of Drugs, and

(b) such other persons as the Secretary of State considers appropriate.

(4) The power to make regulations under this section is exercisable by statutory
instrument.

(5) A statutory instrument containing regulations under this section may not be
20made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

Offences

4 Producing a psychoactive substance

(1) A person commits an offence if—

(a) 25the person intentionally produces a psychoactive substance,

(b) the person knows or suspects that the substance is a psychoactive
substance, and

(c) the person—

(i) intends to consume the psychoactive substance for its
30psychoactive effects, or

(ii) knows, or is reckless as to whether, the psychoactive substance
is likely to be consumed by some other person for its
psychoactive effects.

(2) This section is subject to section 11 (exceptions to offences).

5 35Supplying, or offering to supply, a psychoactive substance

(1) A person commits an offence if—

(a) the person intentionally supplies a substance to another person,

(b) the substance is a psychoactive substance,

(c) the person knows or suspects, or ought to know or suspect, that the
40substance is a psychoactive substance, and

(d) the person knows, or is reckless as to whether, the psychoactive
substance is likely to be consumed by the person to whom it is
supplied, or by some other person, for its psychoactive effects.

(2) A person (“P”) commits an offence if—

(a) 5P offers to supply a psychoactive substance to another person (“R”),
and

(b) P knows or is reckless as to whether R, or some other person, would, if
P supplied a substance to R in accordance with the offer, be likely to
consume the substance for its psychoactive effects.

(3) 10For the purposes of subsection (2)(b), the reference to a substance’s
psychoactive effects includes a reference to the psychoactive effects which the
substance would have if it were the substance which P had offered to supply
to R.

(4) This section is subject to section 11 (exceptions to offences).

6 15Aggravation of offence under section 5

(1) This section applies if—

(a) a court is considering the seriousness of an offence under section 5, and

(b) at the time the offence was committed the offender was aged 18 or over.

(2) If condition A, B or C is met the court—

(a) 20must treat the fact that the condition is met as an aggravating factor
(that is to say, a factor that increases the seriousness of the offence), and

(b) must state in open court that the offence is so aggravated.

(3) Condition A is that the offence was committed on or in the vicinity of school
premises at a relevant time.

(4) 25For the purposes of subsection (3) a “relevant time” is—

(a) any time when the school premises are in use by persons under the age
of 18;

(b) one hour before the start and one hour after the end of any such time.

(5) In this section—

• 30“school premises” means land used for the purposes of a school, other
  than any land occupied solely as a dwelling by a person employed at
  the school;

• “school” has the same meaning—

  (a)

  in England and Wales, as in section 4 of the Education Act 1996;

  (b)

  35in Scotland, as in section 135(1) of the Education (Scotland) Act
  1980;

  (c)

  in Northern Ireland, as in Article 2(2) of the Education and
  Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3)S.I. 1986/594 (N.I. 3)).

(6) Condition B is that in connection with the commission of the offence the
40offender used a courier who, at the time the offence was committed, was under
the age of 18.

(7) For the purposes of subsection (6) a person (“P”) uses a courier in connection
with an offence under section 5 if P causes or permits another person (the
courier)—

(a) 45to deliver a substance to a third person, or

(b) to deliver a drug-related consideration to P or a third person.

(8) A drug-related consideration is a consideration of any description which—

(a) is obtained in connection with the supply of a psychoactive substance,
or

(b) 5is intended to be used in connection with obtaining a psychoactive
substance.

(9) Condition C is that the offence was committed in a custodial institution.

(10) In this section—

• “custodial institution” means any of the following—

  (a)

  10a prison;

  (b)

  a young offender institution, secure training centre, secure
  college, young offenders institution, young offenders centre,
  juvenile justice centre or remand centre;

  (c)

  a removal centre, a short-term holding facility or pre-departure
  15accommodation;

  (d)

  service custody premises;

• “removal centre”, “short-term holding facility” and “pre-departure
  accommodation” have the meaning given by section 147 of the
  Immigration and Asylum Act 1999;

• 20“service custody premises” has the meaning given by section 300(7) of the
  Armed Forces Act 2006.

7 Possession of psychoactive substance with intent to supply

(1) A person commits an offence if—

(a) the person is in possession of a psychoactive substance,

(b) 25the person knows or suspects that the substance is a psychoactive
substance, and

(c) the person intends to supply the psychoactive substance to another
person for its consumption, whether by any person to whom it is
supplied or by some other person, for its psychoactive effects.

(2) 30This section is subject to section 11 (exceptions to offences).

8 Importing or exporting a psychoactive substance

(1) A person commits an offence if—

(a) the person intentionally imports a substance,

(b) the substance is a psychoactive substance,

(c) 35the person knows or suspects, or ought to know or suspect, that the
substance is a psychoactive substance, and

(d) the person—

(i) intends to consume the psychoactive substance for its
psychoactive effects, or

(ii) 40knows, or is reckless as to whether, the psychoactive substance
is likely to be consumed by some other person for its
psychoactive effects.

(2) A person commits an offence if—

(a) the person intentionally exports a substance,

(b) the substance is a psychoactive substance,

(c) the person knows or suspects, or ought to know or suspect, that the
substance is a psychoactive substance, and

(d) the person—

(i) 5intends to consume the psychoactive substance for its
psychoactive effects, or

(ii) knows, or is reckless as to whether, the psychoactive substance
is likely to be consumed by some other person for its
psychoactive effects.

(3) 10In a case where a person imports or exports a controlled drug suspecting it to
be a psychoactive substance, the person is to be treated for the purposes of this
section as if the person had imported or exported a psychoactive substance
suspecting it to be such a substance.

In this subsection “controlled drug” has the same meaning as in the Misuse of
15Drugs Act 1971.

(4) Section 5 of the Customs and Excise Management Act 1979 (time of
importation, exportation, etc) applies for the purposes of this section as it
applies for the purposes of that Act.

(5) This section is subject to section 11 (exceptions to offences).

9 20Possession of a psychoactive substance in a custodial institution

(1) A person commits an offence if—

(a) the person is in possession of a psychoactive substance in a custodial
institution,

(b) the person knows or suspects that the substance is a psychoactive
25substance, and

(c) the person intends to consume the psychoactive substance for its
psychoactive effects.

(2) In this section “custodial institution” has the same meaning as in section 6.

(3) This section is subject to section 11 (exceptions to offences).

10 30Penalties

(1) A person guilty of an offence under any of sections 4 to 8 is liable—

(a) on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
35commencement of section 154(1) of the Criminal Justice Act
2003), or

(ii) to a fine,

or both;

(b) on summary conviction in Scotland—

(i) 40to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(d) on conviction on indictment, to imprisonment for a term not exceeding
7 years or a fine, or both.

(2) 5A person guilty of an offence under section 9 is liable—

(a) on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6
months, if the offence was committed before the
commencement of section 154(1) of the Criminal Justice Act
102003), or

(ii) to a fine,

or both;

(b) on summary conviction in Scotland—

(i) to imprisonment for a term not exceeding 12 months, or

(ii) 15to a fine not exceeding the statutory maximum,

or both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

20or both;

(d) on conviction on indictment, to imprisonment for a term not exceeding
2 years or a fine, or both.

11 Exceptions to offences

(1) It is not an offence under this Act for a person to carry on any activity listed in
25subsection (3) if, in the circumstances in which it is carried on by that person,
the activity is an exempted activity.

(2) In this section “exempted activity” means an activity listed in Schedule 2.

(3) The activities referred to in subsection (1) are—

(a) producing a psychoactive substance;

(b) 30supplying such a substance;

(c) offering to supply such a substance;

(d) possessing such a substance with intent to supply it;

(e) importing or exporting such a substance;

(f) possessing such a substance in a custodial institution (within the
35meaning of section 9).

(4) The Secretary of State may by regulations amend Schedule 2 in order to—

(a) add or vary any description of activity;

(b) remove any description of activity added under paragraph (a).

(5) Before making any regulations under this section the Secretary of State must
40consult—

(a) the Advisory Council on the Misuse of Drugs, and

(b) such other persons as the Secretary of State considers appropriate.

(6) The power to make regulations under this section is exercisable by statutory
instrument.

(7) A statutory instrument containing regulations under this section may not be
made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

Powers for dealing with prohibited activities

12 5Meaning of “prohibited activity”

(1) In this Act “prohibited activity” means any of the following activities—

(a) producing a psychoactive substance that is likely to be consumed by
individuals for its psychoactive effects;

(b) supplying such a substance;

(c) 10offering to supply such a substance;

(d) importing such a substance;

(e) exporting such a substance;

(f) assisting or encouraging the carrying on of a prohibited activity listed
in any of paragraphs (a) to (e).

(2) 15The carrying on by a person of an activity listed in any of paragraphs (a) to (e)
of subsection (1) is not the carrying on of a prohibited activity if the carrying on
of the activity by that person would not be an offence under this Act by virtue
of section 11.

13 Prohibition notices

(1) 20A senior officer or a local authority may give a prohibition notice to a person if
conditions A and B are met.

(2) A prohibition notice is a notice that requires the person to whom it is given not
to carry on any prohibited activity or a prohibited activity of a description
specified in the notice.

(3) 25Condition A is that the senior officer or local authority reasonably believes that
the person is carrying on, or is likely to carry on, a prohibited activity.

(4) Condition B is that the senior officer or local authority reasonably believes that
it is necessary and proportionate to give the prohibition notice for the purpose
of preventing the person from carrying on any prohibited activity.

(5) 30A prohibition notice may not be given—

(a) in England and Wales or Northern Ireland, to an individual who is
under the age of 10, or

(b) in Scotland, to an individual who is under the age of 12.

(6) A prohibition notice given to an individual who is under the age of 18—

(a) 35must specify the period for which it has effect, and

(b) may not have effect for more than 3 years.

(7) In this Act “senior officer” means—

(a) a constable of at least the rank of inspector;

(b) a designated NCA officer of grade 3 or above;

(c) 40a general customs official of at least the grade of higher officer.

14 Premises notices

(1) A senior officer or a local authority may give a premises notice to a person if
conditions A and B are met.

(2) A premises notice is a notice that requires the person to whom it is given to take
5all reasonable steps to prevent any prohibited activity, or a prohibited activity
of a description specified in the notice, from being carried on at any premises
specified in the notice that are owned, leased, occupied, controlled or operated
by the person.

(3) Condition A is that—

(a) 10the senior officer or local authority reasonably believes that a
prohibited activity is being, or is likely to be, carried on at particular
premises, and

(b) the person owns, leases, occupies, controls or operates the premises.

(4) Condition B is that the senior officer or local authority reasonably believes that
15it is necessary and proportionate to give the premises notice for the purpose of
preventing any prohibited activity from being carried on at any premises
owned, leased, occupied, controlled or operated by the person.

(5) A premises notice may not be given to an individual who is under the age of 18.

(6) For the purposes of this section a person (other than a mortgagee not in
20possession) “owns” premises in England and Wales or Northern Ireland if—

(a) the person is entitled to dispose of the fee simple in the premises,
whether in possession or reversion, or

(b) the person holds or is entitled to the rents and profits of the premises
under a lease that (when granted) was for a term of not less than 3
25years.

(7) For the meaning of “senior officer”, see section 13(7).

15 Prohibition notices and premises notices: supplementary

(1) This section applies to the giving of prohibition notices and premises notices.

(2) A notice must—

(a) 30set out the grounds for giving the notice;

(b) explain the possible consequences of not complying with the notice.

(3) A notice may be withdrawn by a notice to that effect given by—

(a) where the notice was given by a senior officer, that officer or another
senior officer acting on behalf of the same person as that officer;

(b) 35where the notice was given by a local authority, that local authority.

(4) The withdrawal of a notice does not prevent the giving of a further notice to the
same person.

(5) For the meaning of “senior officer”, see section 13(7).

16 Further provision about giving notices under sections 13 to 15

(1) 40This section applies to the giving of notices under sections 13 to 15.

(2) A notice takes effect when it is given.

(3) A notice may be given to a person by—

(a) handing it to the person,

(b) leaving it at the person’s proper address,

(c) sending it by post to the person at that address, or

(d) 5subject to subsection (9), sending it to the person by electronic means.

(4) A notice to a body corporate may be given to the secretary or clerk of that body.

(5) A notice to a partnership may be given to a partner or a person who has the
control or management of the partnership business.

(6) For the purposes of this section and of section 7 of the Interpretation Act 1978
10(service of documents by post) in its application to this section, the proper
address of a person is—

(a) in the case of a body corporate or its secretary or clerk, the address of
the body’s registered or principal office;

(b) in the case of a partnership, a partner or a person having the control or
15management of the partnership business, the address of the principal
office of the partnership;

(c) in any other case, the person’s last known address.

(7) For the purposes of subsection (6) the principal office of a company registered
outside the United Kingdom, or of a partnership carrying on business outside
20the United Kingdom, is its principal office within the United Kingdom.

(8) If a person has specified an address in the United Kingdom, other than the
person’s proper address within the meaning of subsection (6), as the one at
which the person or someone on the person’s behalf will accept notices of the
same description as a notice under section 13, 14 or 15 (as the case may be), that
25address is also treated for the purposes of this section and section 7 of the
Interpretation Act 1978 as the person’s proper address.

(9) A notice may be sent to a person by electronic means only if—

(a) the person has indicated that notices of the same description as a notice
under section 13, 14 or 15 (as the case may be) may be given to the
30person by being sent to an electronic address and in an electronic form
specified for that purpose, and

(b) the notice is sent to that address in that form.

(10) A notice sent to a person by electronic means is, unless the contrary is proved,
to be treated as having been given at 9 am on the working day immediately
35following the day on which it was sent.

(11) In this section—

• “electronic address” means any number or address used for the purposes
  of sending or receiving documents or information by electronic means;

• “working day” means a day other than a Saturday, a Sunday, Christmas
  40Day, Good Friday or a bank holiday under the Banking and Financial
  Dealings Act 1971 in any part of the United Kingdom.

17 Meaning of “prohibition order”

(1) In this Act a “prohibition order” means an order prohibiting the person against
whom it is made from carrying on any prohibited activity or a prohibited
45activity of a description specified in the order.