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Psychoactive substances: Labour’s February 2015 amendment to the Serious Crime Bill

Anyone following the progress of the Psychoactive Substances Bill (the general principle of which which be debated on Second Reading in the House of Lords tomorrow) may be interested in this amendment tabled by Labour’s Home Affairs team (as “NC21”) at Report Stage on the Serious Crime Bill earlier this year.

New psychoactive substances

(1) It is an offence for a person to supply, or offer to supply, a synthetic psychoactive substance, including but not restricted to—

(a)  a powder;
(b)  a pill;
(c)  a liquid; or
(d)  a herbal substance with the appearance of cannabis,

which he knows, or has reasonable cause to believe, to be so acting, that the substance is likely to be consumed by a person for the purpose of causing intoxication.

(2) This section does not apply to alcohol, tobacco, or any drug currently scheduled under the Misuse of Drugs Act 1971 or the Medicines Act 1968 or any substance, product or foodstuff specified by the Secretary of State following consultation with the Advisory Council on the Misuse of Drugs.

(3) A person guilty of an offence under this Part of this Act shall be liable—

(a)  on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both such imprisonment and fine;
(b)  on conviction on indictment, to imprisonment for a term not exceeding three years.

Diana Johnson for Labour said about it —

New clause 21 is about new psychoactive substances. We have tabled it to enable effective action to be taken against the sellers of legal highs. It would mean that legal highs could be controlled in the same way as solvents, making it much easier to prosecute and close down sellers and prevent them from using the excuse that a substance is not for human consumption. A similar approach has been adopted in Ireland, and the number of head shops there has fallen from 100 to six. The new clause was drafted in conjunction with the Angelus Foundation, and we also took advice from the UK Drug Policy Commission.

I know that there have been some attempts to close down sellers through trading standards legislation, but most attempted prosecutions have failed because sellers use a loophole in the law to avoid prosecution by labelling their products as plant food or bath salts, or by saying that they are not fit for human consumption. We believe that new clause 21 could deal with that.

Karen Bradley for the government responded —

The Government welcome the principle behind new clause 21, but the expert review panel made it clear in its report last October that the ban on the supply of new psychoactive substances needs careful consideration. Our priority is to frame correctly any new offence and ensure that it is robust yet proportionate and embedded in a comprehensive legislative package. The Government are moving swiftly so that the necessary primary legislation is ready to be introduced at the earliest opportunity in the new Parliament.

The amendment wasn’t pressed to a vote.

Opposition politicians and charities don’t have the government’s access to professional legislative drafters, so we shouldn’t read too much significance into Labour’s use of the word “synthetic”. It might be a helpful concept in this context. I’m not sure, though, what a pharmaceutical chemist or other drug expert would understand by a “synthetic” substance. If intended to exclude naturally occurring things it seems at odds with the concept of a “herbal” substance, which the amendment seems intended to include.

But it does give us a good idea of Labour’s thinking at that time. The amendment was clearly aimed at creating the sort of wide ban on new psychoactive substances the government now wants to bring in, so it seems likely Labour will give the new bill their broad support.

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  1. I think that’s not bad and I agree with what Diana Johnson said.

    In terms of drafting itself, I’m never a big fan of the ‘included but not restricted to’ list format, and think that could just be cut .

    I would have ditched ‘intoxication’ for the same wording as in 5(1) (d), because I can see arguments that the result of the substance would not necessarily be intoxication (you could be taking such a substance for confidence, concentration, energy, diminuition of self-control, mood uplift, which might not amount to intoxication – i.e you could be taking the substance to be You Plus a desireable quality, not to get out of it)

    Whilst I think there are difficulties in establishing whether someone selling something knows, or is reckless as to use, I think that in practice a jury won’t struggle to distinguish between

    (a) A garden centre selling plant food in packaging that is clearly all about its benefits for plants

    and

    (b) A shop called ‘legal highs’ selling ‘plant food’ in a box with smiley faces and bright imagery called “Total HeadF**k”

    This isn’t a new problem (I remember with amyl nitrate back in my youth that the shops were always very clear that they were selling to you as ‘room fragrancers’ rather than as poppers for human consumption. I of course only ever used them as room fragrancers. Much more expensive than Airwick though. )

    The problem with the ‘synthetic’ element may be that via genetic modification, it is believed that organic life can be altered to produce psychoactive substances as a by-product. (I believe that there are some proof of concept demonstrations of that already)

    Are they synthetic (because the organic life producing silk, or milk, or a mushroom, or a fruit that has heroin-esque effects was originally made in a lab, even if it is now sixth or seventh generation?) OR are they organic, because they are organic products produced by an organic living organism?

    I’m also not quite sure of whether the legislation as drafted would prevent a shop selling two bottles of chemicals, each of which has no psychoactive effect on its own, but when mixed they would.

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