Psychoactive Substances Bill (HL Bill 53)

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 9 contain provision about offences relating to psychoactive
substances.

(4) Section 10 provides for exceptions to those offences.

(5) Sections 11 to 34 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 35 to 53 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.

(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 such persons as the Secretary of State considers appropriate.

(4) 15The power to make regulations under this section is exercisable by statutory
instrument.

(5) 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.

20Offences

4 Producing a psychoactive substance

(1) A person commits an offence if—

(a) the person intentionally produces a psychoactive substance,

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

(c) the person—

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

(ii) knows, or is reckless as to whether, the psychoactive substance
30is likely to be consumed by some other person for its
psychoactive effects.

(2) This section is subject to regulations made under section 10 (power to provide
that certain activities are not an offence under this section).

5 Supplying, or offering to supply, a psychoactive substance

(1) 35A 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
substance 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 regulations made under section 10 (power to provide
15that certain activities are not an offence under this section).

6 Aggravation 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) 20If condition A or B is met the court—

(a) must 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
25premises at a relevant time.

(4) For 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) 30Condition B is that in connection with the commission of the offence the
offender used a courier who, at the time the offence was committed, was under
the age of 18.

(6) For the purposes of subsection (5) a person (“P”) uses a courier in connection
with an offence under section 5 if P causes or permits another person (the
35courier)—

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

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

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

(a) is obtained in connection with the supply of a psychoactive substance,
40or

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

(8) In this section—

Psychoactive Substances BillPage 4

• “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)

  5in England and Wales, as in section 4 of the Education Act 1996;

  (b)

  in 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)).

7 10Possession 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) the person knows or suspects that the substance is a psychoactive
substance, and

(c) 15the 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) This section is subject to regulations made under section 10 (power to provide
that certain activities are not an offence under this section).

8 20Importing 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) the person knows or suspects, or ought to know or suspect, that the
25substance is a psychoactive substance, and

(d) the person—

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

(ii) knows, or is reckless as to whether, the psychoactive substance
30is 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) 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.

(3) In 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
45section 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
Drugs Act 1971.

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

(5) This section is subject to regulations made under section 10 (power to provide
that certain activities are not an offence under this section).

9 Penalties

10A 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
commencement of section 154(1) of the Criminal Justice Act
152003), 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) 20to 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,

25or both;

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

10 Power to provide for exceptions to offences

(1) Regulations made by the Secretary of State may provide that it is not an offence
30under this Act for any person, or any person of a specified description, to do an
act, or an act of a specified description, in specified circumstances or if specified
conditions are met.

(2) Before making any regulations under this section the Secretary of State must
consult such persons as the Secretary of State considers appropriate.

(3) 35Regulations under this section may—

(a) make different provision for different purposes, and

(b) contain incidental, supplemental, consequential or transitional
provision or savings.

(4) The power to make regulations under this section is exercisable by statutory
40instrument.

(5) 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.

(6) In this section “specified” means specified in regulations.

Powers for dealing with prohibited activities

11 Meaning 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
5individuals for its psychoactive effects;

(b) supplying such a substance;

(c) offering to supply such a substance;

(d) importing such a substance;

(e) exporting such a substance;

(f) 10assisting or encouraging the carrying on of an activity listed in any of
paragraphs (a) to (e).

(2) The carrying on by a person of an activity listed in 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 regulations under
15section 10.

12 Prohibition notices

(1) A 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
20to carry on any prohibited activity or a prohibited activity of a description
specified in the notice.

(3) Condition 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
25it is necessary and proportionate to give the prohibition notice for the purpose
of preventing the person from carrying on any prohibited activity.

(5) A 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) 30in 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) must 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) 35a constable of at least the rank of inspector;

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

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

13 Premises notices

(1) A senior officer or a local authority may give a premises notice to a person if
40conditions A and B are met.

(2) A premises notice is a notice that requires the person to whom it is given to take
all 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
5by the person.

(3) Condition A is that—

(a) the 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) 10the person owns, leases, occupies, controls or operates the premises.

(4) Condition B is that the senior officer or local authority reasonably believes that
it 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) 15A 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
possession) “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) 20the 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
years.

(7) For the meaning of “senior officer”, see section 12(7).

14 Prohibition notices and premises notices: supplementary

(1) 25This section applies to the giving of prohibition notices and premises notices.

(2) A notice must—

(a) set 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) 30where 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) where 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) 35For the meaning of “senior officer”, see section 12(7).

15 Means of giving notices under sections 12 to 14

(1) This section applies to the giving of notices under sections 12 to 14.

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

(a) handing it to the person,

(b) 40leaving it at the person’s proper address,

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

(d) subject to subsection (8), sending it to the person by electronic means.

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

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

(5) For the purposes of this section and of section 7 of the Interpretation Act 1978
5(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
10management of the partnership business, the address of the principal
office of the partnership;

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

(6) For the purposes of subsection (5) the principal office of a company registered
outside the United Kingdom, or of a partnership carrying on business outside
15the United Kingdom, is its principal office within the United Kingdom.

(7) If a person has specified an address in the United Kingdom, other than the
person’s proper address within the meaning of subsection (5), 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 12, 13 or 14 (as the case may be), that
20address is also treated for the purposes of this section and section 7 of the
Interpretation Act 1978 as the person’s proper address.

(8) 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 12, 13 or 14 (as the case may be) may be given to the
25person 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.

(9) In subsection (8) “electronic address” means any number or address used for
the purposes of sending or receiving documents or information by electronic
30means.

16 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
activity of a description specified in the order.

(2) 35A prohibition order may be made—

(a) on application (see section 17), or

(b) following conviction of an offence under any of sections 4 to 8 or a
related offence (see section 18).

(3) For the meaning of “prohibited activity”, see section 11.

17 40Prohibition orders on application

(1) The appropriate court may make a prohibition order under this section against
a person if—

(a) condition A or B is met, and

(b) condition C is met.

(2) Condition A is that the court is satisfied on the balance of probabilities that the
person has failed to comply with a prohibition notice.

(3) Condition B is that, where no prohibition notice has been given (or one was
given but has been withdrawn)—

(a) 5the court is satisfied on the balance of probabilities that the person is
carrying on, or is likely to carry on, a prohibited activity, and

(b) the court considers that the person would fail to comply with a
prohibition notice if given.

(4) Condition C is that the court considers it necessary and proportionate to make
10the prohibition order for the purpose of preventing the person from carrying
on any prohibited activity.

(5) If a court makes a prohibition order under this section based on condition A
having been met, the prohibition notice is to be treated as having been
withdrawn.

(6) 15A prohibition order under this section may not be made—

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

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

(7) A prohibition order under this section made against an individual who is
20under the age of 18 at the time the order is made—

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

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

(8) A prohibition order under this section may be made only on an application
made in accordance with section 20.

(9) 25In this section “the appropriate court” means—

(a) in relation to England and Wales—

(i) where the person in respect of whom the application is made is
an individual who is under the age of 18, a youth court, and

(ii) in any other case, a magistrates’ court;

(b) 30in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland—

(i) where the person in respect of whom the application is made is
an individual who is under the age of 18, a youth court, and

(ii) in any other case, a court of summary jurisdiction.

18 35Prohibition orders following conviction

(1) Where a court is dealing with a person who has been convicted of a relevant
offence, the court may make a prohibition order under this section if the court
considers it necessary and proportionate for the purpose of preventing the
person from carrying on any prohibited activity.

(2) 40A prohibition order may not be made under this section except—

(a) in addition to a sentence imposed in respect of the offence concerned, or

(b) in addition to an order discharging the person conditionally or, in
Scotland, discharging the person absolutely.