Psychoactive Substances Bill (HC Bill 88)

Psychoactive Substances BillPage 40

SCHEDULES

Section 3

SCHEDULE 1 Exempted substances

Controlled drugs

1 5Controlled drugs (within the meaning of the Misuse of Drugs Act 1971).

Medicinal products

2 Medicinal products.

In this paragraph “medicinal product” has the same meaning as in the
Human Medicines Regulations 2012 (S.I. 2012/1916S.I. 2012/1916) (see regulation 2 of
10those Regulations).

Alcohol

3 Alcohol or alcoholic products.

In this paragraph—

  • “alcohol” means ethyl alcohol, and

  • 15“alcoholic product” means any product which—

    (a)

    contains alcohol, and

    (b)

    does not contain any psychoactive substance.

Nicotine and tobacco products

4 Nicotine.

5 20Tobacco products.

In this paragraph “tobacco product” means—

(a) anything which is a tobacco product within the meaning of the
Tobacco Products Duty Act 1979 (see section 1 of that Act), and

(b) any other product which—

(i) 25contains nicotine, and

(ii) does not contain any psychoactive substance.

Caffeine

6 Caffeine or caffeine products.

In this paragraph “caffeine product” means any product which—

(a) 30contains caffeine, and

Psychoactive Substances BillPage 41

(b) does not contain any psychoactive substance.

Food

7 Any substance which—

(a) is ordinarily consumed as food, and

(b) 5does not contain a prohibited ingredient.

In this paragraph—

  • “food” includes drink;

  • “prohibited ingredient”, in relation to a substance, means any
    psychoactive substance—

    (a)

    10which is not naturally occurring in the substance, and

    (b)

    the use of which in or on food is not authorised by an EU
    instrument.

Section 11

SCHEDULE 2 Exempted activities

15Healthcare-related activities

1 Any activity carried on by a person who is a health care professional and is
acting in the course of his or her profession.

In this paragraph “health care professional” has the same meaning as in the
Human Medicines Regulations 2012 (S.I. 2012/1916S.I. 2012/1916) (see regulation 8 of
20those Regulations).

2 Any activity carried on for the purpose of, or in connection with—

(a) the supply to, or the consumption by, any person of a substance
prescribed for that person by a health care professional acting in the
course of his or her profession, or

(b) 25the supply to, or the consumption by, any person of a substance in
accordance with the directions of a health care professional acting in
the course of his or her profession.

In this paragraph “health care professional” has the same meaning as in the
Human Medicines Regulations 2012 (see regulation 8 of those Regulations).

3 30Any activity carried on in respect of an active substance by a person who—

(a) is registered in accordance with regulation 45N of the Human
Medicines Regulations 2012, or

(b) is exempt from any requirement to be so registered by virtue of
regulation 45M(2) or (3) of those Regulations.

35In this paragraph “active substance” has the same meaning as in the Human
Medicines Regulations 2012 (see regulation 8 of those Regulations).

Research

4 Any activity carried on in the course of, or in connection with, approved
scientific research.

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In this paragraph—

  • “approved scientific research” means scientific research carried out by
    a person who has approval from a relevant ethics review body to
    carry out that research;

  • 5“relevant ethics review body” means—

    (a)

    a research ethics committee recognised or established by the
    Health Research Authority under Chapter 2 of Part 3 of the
    Care Act 2014, or

    (b)

    a body appointed by any of the following for the purpose of
    10assessing the ethics of research involving individuals—

    (i)

    the Secretary of State, the Scottish Ministers, the
    Welsh Ministers, or a Northern Ireland department;

    (ii)

    a relevant NHS body;

    (iii)

    a body that is a Research Council for the purposes of
    15the Science and Technology Act 1965;

    (iv)

    an institution that is a research institution for the
    purposes of Chapter 4A of Part 7 of the Income Tax
    (Earnings and Pensions) Act 2003 (see section 457 of
    that Act);

    (v)

    20a charity which has as its charitable purpose (or one
    of its charitable purposes) the advancement of health
    or the saving of lives;

  • “charity” means—

    (a)

    a charity as defined by section 1(1) of the Charities Act 2011,

    (b)

    25a body entered in the Scottish Charity Register, or

    (c)

    a charity as defined by section 1(1) of the Charities Act
    (Northern Ireland) 2008;

  • “relevant NHS body” means—

    (a)

    an NHS trust or NHS foundation trust in England,

    (b)

    30an NHS trust or Local Health Board in Wales,

    (c)

    a Health Board or Special Health Board constituted under
    section 2 of the National Health Service (Scotland) Act 1978,

    (d)

    the Common Services Agency for the Scottish Health Service,
    or

    (e)

    35any of the health and social care bodies in Northern Ireland,
    as defined by section 1(5) of the Health and Social Care
    (Reform) Act (Northern Ireland) 2009.

Section 40

SCHEDULE 3 Search warrants: England and Wales and Northern Ireland

40Part 1 Application of this Schedule

1 This Schedule applies to—

(a) applications for search warrants made in England and Wales or
Northern Ireland, and

(b) 45search warrants issued in England and Wales or Northern Ireland.

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Part 2 Search warrants: applications and safeguards

Applications for warrants

2 (1) A person applying for a search warrant must—

(a) 5state that the application is made under section 39 of this Act;

(b) specify the matters set out in sub-paragraph (2) or (3) (as the case
may be);

(c) state what are the grounds for suspecting that relevant evidence is on
the premises;

(d) 10identify, so far as is possible, the offence to which the relevant
evidence relates.

(2) If the person is applying for a specific-premises warrant, the person must
specify each set of premises that it is desired to enter and search.

(3) If the person is applying for an all-premises warrant, the person must
15specify—

(a) as many of the sets of premises that it is desired to enter and search
as it is reasonably practicable to specify;

(b) the person who is in occupation or control of those premises and any
others that it is desired to enter and search;

(c) 20why it is necessary to search more premises than those specified
under paragraph (a);

(d) why it is not reasonably practicable to specify all the premises that it
is desired to enter and search.

(4) If the person is applying for a search warrant authorising entry and search
25on more than one occasion, the person must also state—

(a) the ground on which the person applies for such a warrant, and

(b) whether the person seeks a warrant authorising an unlimited
number of entries, or (if not) the maximum number of entries
desired.

(5) 30In this paragraph “specific-premises warrant” and “all-premises warrant”
have the meaning given by section 39(3).

Safeguards in connection with power of entry conferred by warrant

3 A search warrant authorises entry on one occasion only, unless it specifies
that it authorises multiple entries.

4 (1) 35A search warrant must—

(a) specify the name of the person who applies for it;

(b) specify the date on which it is issued;

(c) state that the warrant is issued under section 39 of this Act;

(d) specify each set of premises to be searched, or (in the case of an all-
40premises warrant) the person who is in occupation or control of
premises to be searched, together with any premises to be searched

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that are under the person’s occupation or control and can be
specified;

(e) identify, so far as is possible, the offence to which the relevant
evidence suspected to be on the premises relates.

(2) 5In sub-paragraph (1)(d) “all-premises warrant” has the meaning given by
section 39(3).

5 (1) Two copies must be made of a search warrant that specifies only one set of
premises and does not authorise multiple entries.

(2) As many copies as are reasonably required may be made of any other kind
10of search warrant.

(3) The copies must be clearly certified as copies.

Part 3 Execution of search warrants

Warrant to be executed within one month

6 15Entry and search under a search warrant must be within one month from the
date of its issue.

All-premises warrants

7 (1) In the case of an all-premises warrant, premises that are not specified in the
warrant may be entered and searched only if a relevant enforcement officer
20of the appropriate grade has authorised them to be entered.

(2) An authorisation under sub-paragraph (1) must be in writing.

(3) In this paragraph—

  • “all-premises warrant” has the meaning given by section 39(3);

  • “relevant enforcement officer of the appropriate grade” means—

    (a)

    25a senior officer (see section 13(7)), or

    (b)

    in the case of a search warrant issued on the application of an
    officer of a local authority, a person designated by the local
    authority for the purposes of this paragraph.

Search of premises more than once

8 (1) 30Premises may be entered or searched for the second or any subsequent time
under a search warrant authorising multiple entries only if a relevant
enforcement officer of the appropriate grade has authorised that entry to the
premises.

(2) An authorisation under sub-paragraph (1) must be in writing.

(3) 35In this paragraph “relevant enforcement officer of the appropriate grade”
has the same meaning as in paragraph 7.

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Time of search

9 Entry and search under a search warrant must be at a reasonable hour unless
it appears to the relevant enforcement officer executing it that the purpose
of a search may be frustrated on an entry at a reasonable hour.

5Evidence of authority etc

10 (1) Where the occupier of premises to be entered and searched under a search
warrant is present at the time when a relevant enforcement officer seeks to
execute the warrant, the following requirements must be satisfied—

(a) the occupier must be told the officer’s name;

(b) 10if not a constable in uniform, the officer must produce to the occupier
documentary evidence that the officer is a relevant enforcement
officer;

(c) the officer must produce the warrant to the occupier;

(d) the officer must supply the occupier with a copy of it.

(2) 15Where the occupier of premises to be entered and searched under a search
warrant is not present at the time when a relevant enforcement officer seeks
to execute the warrant—

(a) if some other person who appears to the officer to be in charge of the
premises is present, sub-paragraph (1) has effect as if a reference to
20the occupier were a reference to that other person;

(b) if not, the officer must leave a copy of the warrant in a prominent
place on the premises.

Extent of search

11 A search under a search warrant may only be a search to the extent required
25for the purpose for which the warrant was issued.

Securing premises after entry

12 A relevant enforcement officer who enters premises under a search warrant
must take reasonable steps to ensure that when the officer leaves the
premises they are as secure as they were before the officer entered.

30Return and retention of warrant

13 (1) A search warrant must be returned to the appropriate person (see sub-
paragraph (2))—

(a) when the warrant has been executed, or

(b) on or before the expiry of the period of one month from the date of
35its issue, if the warrant is—

(i) a specific-premises warrant that has not been executed,

(ii) an all-premises warrant, or

(iii) a warrant authorising multiple entries.

(2) The appropriate person is—

(a) 40in the case of a warrant issued in England and Wales, the designated
officer for the local justice area in which the justice of the peace was
acting when issuing the warrant;

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(b) in the case of a warrant issued in Northern Ireland, the clerk of petty
sessions for the petty sessions district in which the lay magistrate
was acting when issuing the warrant.

(3) The appropriate person must retain a search warrant returned under sub-
5paragraph (1) for 12 months from the date of its return.

(4) If during that period the occupier of premises to which the search warrant
relates asks to inspect it, the occupier must be allowed to do so.

(5) In this paragraph “specific-premises warrant” and “all-premises warrant”
have the meaning given by section 39(3).

Section 57

10SCHEDULE 4 Providers of information society services

Part 1 Offering to supply a psychoactive substance

Domestic service providers: extension of liability

1 (1) 15If—

(a) a service provider established in a particular part of the United
Kingdom does anything in an EEA state other than the United
Kingdom in the course of providing information society services,
and

(b) 20the action, if done in that part of the United Kingdom, would
constitute an offence under section 5(2),

the service provider is guilty in that part of the United Kingdom of such an
offence.

(2) Nothing in this paragraph affects the operation of paragraphs 3 to 5.

25Non-UK service providers: restriction on institution of proceedings

2 (1) Proceedings for an offence under section 5(2) may not be instituted against
a non-UK service provider in respect of anything done in the course of the
provision of information society services unless the derogation condition is
met.

(2) 30The derogation condition is that taking proceedings—

(a) is necessary for the purposes of the public interest objective,

(b) relates to an information society service that prejudices that objective
or presents a serious and grave risk of prejudice to that objective, and

(c) is proportionate to that objective.

(3) 35In this paragraph—

  • “non-UK service provider” means a service provider established in an
    EEA state other than the United Kingdom;

  • “the public interest objective” means the pursuit of public policy.

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Exceptions for mere conduits

3 (1) A service provider does not commit an offence under section 5(2) by
providing access to a communication network or by transmitting, in a
communication network, information provided by a recipient of the service,
5if the service provider does not—

(a) initiate the transmission,

(b) select the recipient of the transmission, or

(c) select or modify the information contained in the transmission.

(2) For the purposes of sub-paragraph (1)—

(a) 10providing access to a communication network, and

(b) transmitting information in a communication network,

include the automatic, intermediate and transient storage of the information
transmitted so far as the storage is solely for the purpose of carrying out the
transmission in the network.

(3) 15Sub-paragraph (2) does not apply if the information is stored for longer than
is reasonably necessary for the transmission.

Exception for caching

4 (1) A service provider does not commit an offence under section 5(2) by storing
information provided by a recipient of the service for transmission in a
20communication network if the first and second conditions are met.

(2) The first condition is that the storage of the information—

(a) is automatic, intermediate and temporary, and

(b) is solely for the purpose of making more efficient the onward
transmission of the information to other recipients of the service at
25their request.

(3) The second condition is that the service provider—

(a) does not modify the information,

(b) complies with any conditions attached to having access to the
information, and

(c) 30if sub-paragraph (4) applies, promptly removes the information or
disables access to it.

(4) This sub-paragraph applies if the service provider obtains actual knowledge
that—

(a) the information at the initial source of the transmission has been
35removed from the network,

(b) access to it has been disabled, or

(c) a court or administrative authority has ordered the removal from the
network of, or the disablement of access to, the information.

Exception for hosting

5 (1) 40A service provider does not commit an offence under section 5(2) by storing
information provided by a recipient of the service if—

(a) the service provider had no actual knowledge when the information
was provided that its provision constituted an offence under section
5(2), or

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(b) on obtaining actual knowledge that the provision of the information
constituted such an offence, the service provider promptly removed
the information or disabled access to it.

(2) Sub-paragraph (1) does not apply if the recipient of the service is acting
5under the authority or control of the service provider.

Part 2 Prohibition notices and prohibition orders

Domestic service providers: extension of liability

6 (1) If—

(a) 10a service provider established in a particular part of the United
Kingdom does anything in an EEA state other than the United
Kingdom in the course of providing information society services,
and

(b) the action, if done in that part of the United Kingdom, would
15constitute an offence under section 26,

the service provider is guilty in that part of the United Kingdom of such an
offence.

(2) Nothing in this paragraph affects the operation of paragraph 8.

Non-UK service providers: restriction on including terms in prohibition notice or order

7 (1) 20This paragraph applies where—

(a) a person proposes to give a prohibition notice,

(b) a person makes an application for a prohibition order under section
18, or

(c) a person mentioned in subsection (1)(a) or (2) of section 28 makes an
25application under that section for the variation of a prohibition
order.

(2) The prohibition notice or prohibition order may include terms which restrict
the freedom of a non-UK service provider to provide information society
services in relation to an EEA state only if conditions A and B are met.

(3) 30Condition A is that the relevant person considers that the terms—

(a) are necessary for the purposes of the public interest objective,

(b) relate to an information society service that prejudices that objective
or presents a serious and grave risk of prejudice to that objective, and

(c) are proportionate to that objective.

(4) 35In sub-paragraph (3)—

  • “the relevant person” means—

    (a)

    in relation to a prohibition notice, the person giving the
    notice;

    (b)

    in relation to a prohibition order, the court making or varying
    40the order;

  • “the public interest objective” means the pursuit of public policy.

(5) Condition B is that—

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(a) the relevant enforcement authority has requested the EEA state in
which the service provider is established to take measures which the
authority considers to be of equivalent effect under the law of the
EEA state to the terms and the EEA state has failed to take the
5measures, and

(b) the relevant enforcement authority has notified the Commission of
the European Union and the EEA state of the relevant matters (see
sub-paragraph (6)).

(6) The “relevant matters” are—

(a) 10in the case of a prohibition notice, the intention to give a prohibition
notice containing the terms;

(b) in the case of a prohibition order, the intention to apply for—

(i) a prohibition order containing the terms, or

(ii) the variation of a prohibition order so that it contains the
15terms;

(c) in either of those cases, the terms.

(7) In the case of a prohibition order, it does not matter for the purposes of sub-
paragraph (5) whether the request or notification is made before or after the
making of the application referred to in sub-paragraph (6)(b).

(8) 20In this paragraph—

  • “non-UK service provider” means a service provider established in an
    EEA state other than the United Kingdom;

  • “the relevant enforcement authority” means—

    (a)

    in the case of a prohibition notice to be given by a constable,
    25the chief officer of police or chief constable (as the case may
    be) of the police force of which the constable is a member;

    (b)

    in the case of a prohibition notice to be given by a designated
    NCA officer, the Director General of the National Crime
    Agency;

    (c)

    30in the case of a prohibition notice to be given by a general
    customs official, the Secretary of State by whom general
    customs functions are exercisable;

    (d)

    in the case of a prohibition notice to be given by a local
    authority, that local authority;

    (e)

    35in the case of a prohibition order, the person applying for the
    order or for the variation of the order (as the case may be).

Protections for service providers of intermediary services

8 (1) A prohibition notice or prohibition order may not include terms which
impose liabilities on service providers of intermediary services so far as the
40imposition of those liabilities would result in a contravention of Article 12,
13 or 14 of the E-Commerce Directive (various protections for service
providers of intermediary services).

(2) A prohibition notice or prohibition order may not include terms which
impose a general obligation on service providers of intermediary services
45covered by Article 12, 13 or 14 of the E-Commerce Directive—

(a) to monitor the information which they transmit or store when
providing those services, or