Psychoactive Substances Bill (HL Bill 2)

Psychoactive Substances BillPage 30

(7) Where the court makes a forfeiture order, it may also make such other
provision as it considers to be necessary for giving effect to the forfeiture.

(8) That provision may, in particular, include provision relating to the retention,
handling, destruction or other disposal of the item.

(9) 5Provision made by virtue of this section may be varied at any time by the court
that made it.

(10) In this section “ancillary offence” means—

(a) an offence of attempting or conspiring to commit an offence under any
of sections 4 to 8 and 23;

(b) 10an offence under Part 2 of the Serious Crime Act 2007 in relation to an
offence under any of sections 4 to 8 and 23;

(c) an offence of inciting a person to commit an offence under any of
sections 4 to 8 and 23;

(d) an offence of aiding, abetting, counselling or procuring the commission
15of an offence under any of sections 4 to 8 and 23.

Supplementary and final provisions

51 Offences by directors, partners, etc

(1) Where an offence under this Act has been committed by a body corporate and
it is proved that the offence—

(a) 20has been committed with the consent or connivance of a person falling
within subsection (2), or

(b) is attributable to any neglect on the part of such a person,

that person (as well as the body corporate) is guilty of that offence and liable to
be proceeded against and punished accordingly.

(2) 25The persons are—

(a) a director, manager, secretary or similar officer of the body corporate;

(b) any person who was purporting to act in such a capacity.

(3) Where the affairs of a body corporate are managed by its members, subsection
(1) applies in relation to the acts and defaults of a member, in connection with
30that management, as if the member were a director of the body corporate.

(4) Where an offence under this Act has been committed by a Scottish firm and it
is proved that the offence—

(a) has been committed with the consent or connivance of a partner in the
firm or a person purporting to act as such a partner, or

(b) 35is attributable to any neglect on the part of such a person,

that person (as well as the firm) is guilty of that offence and liable to be
proceeded against and punished accordingly.

52 Providers of information society services

Schedule 3 contains provision about the application of certain provisions of
40this Act in relation to persons providing information society services within
the meaning of that Schedule.

Psychoactive Substances BillPage 31

53 Interpretation

(1) In this Act—

  • “designated NCA officer” means a National Crime Agency officer
    designated under section 9 or 10 of the Crime and Courts Act 2013 as a
    5person having either or both of the following—

    (a)

    the powers and privileges of a constable;

    (b)

    the powers of an officer of Revenue and Customs;

  • “exempted substance” has the meaning given by section 3;

  • “general customs function” has the meaning given by section 1(8) of the
    10Borders, Citizenship and Immigration Act 2009;

  • “general customs official” means a person designated as a general
    customs official under section 3(1) of the Borders, Citizenship and
    Immigration Act 2009;

  • “item” includes any substance;

  • 15“justice” means—

    (a)

    in England and Wales, a justice of the peace,

    (b)

    in Scotland, a sheriff, and

    (c)

    in Northern Ireland, a lay magistrate;

  • “local authority” means—

    (a)

    20in England, a county council, a district council, a London
    borough council, the Common Council of the City of London or
    the Council of the Isles of Scilly,

    (b)

    in Wales, a county council or county borough council,

    (c)

    in Scotland, a council constituted under section 2 of the Local
    25Government etc (Scotland) Act 1994, and

    (d)

    in Northern Ireland, a district council constituted under section
    1 of the Local Government Act (Northern Ireland) 1972;

  • “police or customs officer” has the meaning given by section 32(4);

  • “premises” includes any place and, in particular, includes—

    (a)

    30any vehicle, vessel or aircraft;

    (b)

    any offshore installation within the meaning given by section 1
    of the Mineral Workings (Offshore Installations) Act 1971;

    (c)

    any renewable energy installation within the meaning given by
    section 104 of the Energy Act 2004;

    (d)

    35any tent or movable structure;

  • “premises notice” is to be read in accordance with section 13;

  • “premises order” is to be read in accordance with section 19;

  • “prohibited activity” has the meaning given by section 11;

  • “prohibition notice” is to be read in accordance with section 12;

  • 40“prohibition order” is to be read in accordance with section 16;

  • “psychoactive effects”, in relation to a substance, is to be read in
    accordance with section 2(2);

  • “psychoactive substance” has the meaning given by section 2(1);

  • “relevant enforcement officer” has the meaning given by section 35(6);

  • 45“relevant evidence” has the meaning given by section 32(4);

  • “search warrant” means a warrant under section 35;

  • “senior officer” has the meaning given by section 12(7);

  • “vessel” is to be read in accordance with subsection (4).

Psychoactive Substances BillPage 32

(2) In this Act—

(a) any reference to producing a substance is a reference to producing it by
manufacture, cultivation or any other method;

(b) any reference to supplying a substance includes a reference to
5distributing it;

(c) any reference to consuming a substance is to be read in accordance with
section 2(3).

(3) For the purposes of this Act the items which are in a person’s possession
include any items which are—

(a) 10subject to that person’s control, but

(b) in the custody of another person.

(4) In this Act any reference to a vessel includes a reference to—

(a) any ship or boat or any other description of vessel used in navigation,
and

(b) 15any hovercraft, submersible craft or other floating craft,

but does not include a reference to anything that permanently rests on, or is
permanently attached to, the sea bed.

(5) Before the commencement of section 109 of the Courts Reform (Scotland) Act
2014 (abolition of appeal from a sheriff to the sheriff principal), any reference
20in this Act to the Sheriff Appeal Court is to be read as a reference to the sheriff
principal.

54 Consequential amendments

Schedule 4 (which contains consequential amendments) has effect.

55 Power to make further consequential amendments

(1) 25The Secretary of State may by regulations make provision that is consequential
on any provision of this Act.

(2) The power to make regulations under this section—

(a) is exercisable by statutory instrument;

(b) includes power to make transitional, transitory or saving provision;

(c) 30may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under primary
legislation passed before this Act or in the same Session.

(3) A statutory instrument that contains (with or without other provision)
regulations under this section that amend, repeal or revoke any provision of
35primary legislation may not be made unless a draft of the instrument has been
laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
Parliament.

(5) 40In this section “primary legislation” means—

(a) an Act of Parliament;

(b) an Act of the Scottish Parliament;

(c) a Measure or Act of the National Assembly for Wales;

(d) Northern Ireland legislation.

Psychoactive Substances BillPage 33

56 Extent

(1) Except as provided by subsection (2), this Act extends to England and Wales,
Scotland and Northern Ireland.

(2) Any amendment or repeal made by this Act has the same extent as the
5provision amended or repealed.

57 Commencement and short title

(1) The following provisions of this Act come into force on the day on which this
Act is passed—

(a) sections 53, 55 and 56 and this section;

(b) 10any power to make regulations under this Act.

(2) The remaining provisions of this Act come into force in accordance with
provision contained in regulations made by the Secretary of State.

(3) Regulations under subsection (2) may—

(a) make different provision for different purposes;

(b) 15make such transitory or transitional provision, or savings, as the
Secretary of State considers necessary or expedient.

(4) This Act may be cited as the Psychoactive Substances Act 2015.

Psychoactive Substances BillPage 34

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 for which either of the following is in force—

(a) a marketing authorisation;

(b) an Article 126a authorisation.

10Terms used in this paragraph and in the Human Medicines Regulations 2012
(S.I. 2012/1916S.I. 2012/1916) have the same meaning in this paragraph as they have in
those Regulations.

3 Investigational medicinal products.

“Investigational medicinal product” has the same meaning as in the
15Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I. 2004/1031S.I. 2004/1031)
(see regulation 2 of those Regulations).

4 Homoeopathic medicinal products.

“Homoeopathic medicinal product” has the same meaning as in the Human
Medicines Regulations 2012 (see regulation 8 of those Regulations).

5 20Traditional herbal medicinal products.

“Traditional herbal medicinal product” has the same meaning as in the
Human Medicines Regulations 2012 (see regulation 8 of those Regulations).

Alcohol

6 Alcohol or alcoholic products.

25In this paragraph—

  • “alcohol” means ethyl alcohol, and

  • “alcoholic product” means any product which—

    (a)

    contains alcohol, and

    (b)

    does not contain any psychoactive substance.

30Nicotine and tobacco products

7 Nicotine.

Psychoactive Substances BillPage 35

8 Tobacco 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) 5any other product which—

(i) contains nicotine, and

(ii) does not contain any psychoactive substance.

Caffeine

9 Caffeine or caffeine products.

10In this paragraph “caffeine product” means any product which—

(a) contains caffeine, and

(b) does not contain any psychoactive substance.

Food

10 Any substance which—

(a) 15is ordinarily consumed as food, and

(b) does not contain a prohibited ingredient.

In this paragraph—

  • “food” includes drink;

  • “prohibited ingredient”, in relation to a substance, means any
    20psychoactive substance—

    (a)

    which 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 36

SCHEDULE 2 25Search warrants

Part 1 Search warrants: applications and safeguards

Applications for warrants

1 (1) An application for a search warrant may be made without notice being given
30to persons who might be affected by the warrant.

(2) The application must be supported—

(a) in England and Wales, by an information in writing;

(b) in Scotland, by evidence on oath;

(c) in Northern Ireland, by a complaint on oath.

(3) 35A person applying for a search warrant must answer on oath any question
that the justice hearing the application asks the person.

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

Psychoactive Substances BillPage 36

(a) state that the application is made under section 35 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
5the premises;

(d) identify, 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) 10If the person is applying for an all-premises warrant, the person must
specify—

(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
15others that it is desired to enter and search;

(c) why 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.

20In this sub-paragraph “all-premises warrant” has the meaning given by
section 35(3).

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

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

(b) 25whether the person seeks a warrant authorising an unlimited
number of entries, or (if not) the maximum number of entries
desired.

Safeguards in connection with power of entry conferred by warrant

3 A search warrant authorises entry on one occasion only, unless it specifies
30that it authorises multiple entries.

4 (1) A 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 35 of this Act;

(d) 35specify each set of premises to be searched, or (in the case of an all-
premises warrant) the person who is in occupation or control of
premises to be searched, together with any premises to be searched
that are under the person’s occupation or control and can be
specified;

(e) 40identify, so far as is possible, the offence to which the relevant
evidence suspected to be on the premises relates.

(2) In sub-paragraph (1)(d) “all-premises warrant” has the meaning given by
section 35(3).

Psychoactive Substances BillPage 37

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
of search warrant.

(3) 5The copies must be clearly certified as copies.

Part 2 Execution of search warrants

Warrant to be executed within one month

6 Entry and search under a search warrant must be within one month from the
10date 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
of the appropriate grade has authorised them to be entered.

(2) 15An authorisation under sub-paragraph (1) must be in writing.

(3) In this paragraph—

  • “all-premises warrant” has the meaning given by section 35(3);

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

    (a)

    a senior officer (see section 12(7)), or

    (b)

    20in 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) Premises may be entered or searched for the second or any subsequent time
25under 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) In this paragraph “relevant enforcement officer of the appropriate grade”
30has the same meaning as in paragraph 7.

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.

35Evidence 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—

Psychoactive Substances BillPage 38

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

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

(c) 5the officer must produce the warrant to the occupier;

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

(2) Where 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) 10if 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
the 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.

15Extent of search

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

Securing premises after entry

12 A relevant enforcement officer who enters premises under a search warrant
20must take reasonable steps to ensure that when the officer leaves the
premises they are as secure as they were before the officer entered.

Return and retention of warrant

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

(a) 25when the warrant has been executed, or

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

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

(ii) an all-premises warrant, or

(iii) 30a warrant authorising multiple entries.

(2) The appropriate person is—

(a) in 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;

(b) 35in the case of a warrant issued in Scotland, the sheriff clerk for the
sheriff court in which the sheriff was sitting when issuing the
warrant;

(c) 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
40was acting when issuing the warrant.

(3) The appropriate person must retain a search warrant returned under sub-
paragraph (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.

Psychoactive Substances BillPage 39

(5) In this paragraph “specific-premises warrant” and “all-premises warrant”
have the meaning given by section 35(3).

Section 52

SCHEDULE 3 Providers of information society services

5Part 1 Offering to supply a psychoactive substance

Domestic service providers: extension of liability

1 (1) If—

(a) a service provider established in a particular part of the United
10Kingdom 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
constitute an offence under section 5(2),

15the 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.

Non-UK service providers: restriction on institution of proceedings

2 (1) Proceedings for an offence under section 5(2) may not be instituted against
20a 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) The derogation condition is that taking proceedings—

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

(b) 25relates 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) In this paragraph—

  • “non-UK service provider” means a service provider established in an
    30EEA state other than the United Kingdom;

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

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
35communication network, information provided by a recipient of the service,
if 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.