Legalize / United Kingdom / Public General Act

Psychoactive Substances Act 2016

Type Public General Act

Publication 2016-01-28

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Introductory

Overview

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(1) This Act contains provision about psychoactive substances.

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

(3) Sections 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 notices and make prohibition orders.

(6) Sections 36 to 54 contain enforcement powers.

Psychoactive substances

Meaning of “psychoactive substance” etc

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

(a) is 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) For 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.

Exempted substances

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

(2) The 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) the 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 made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Offences

Producing a psychoactive substance

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(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 substance, and

(i) intends 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.

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

Supplying, or offering to supply, a psychoactive substance

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(1) A person commits an offence if—

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

(b) the substance is a psychoactive substance,

(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) P 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) For 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).

Aggravation of offence under section 5

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(1) Subsections (2) to (10) apply if—

(a) a court in Scotland or Northern Ireland 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) 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 premises 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) In this section—

“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—in England and Wales, as in section 4 of the Education Act 1996;in Scotland, as in section 135(1) of the Education (Scotland) Act 1980;in Northern Ireland, as in Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3)).

(6) Condition 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.

(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) to 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) is 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 prison;a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;a removal centre, a short-term holding facility or pre-departure accommodation;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;

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

(11) For the requirement for a court in England and Wales considering the seriousness of an offence under section 5 to treat certain matters as aggravating factors, see section 72 of the Sentencing Code.

Possession of psychoactive substance with intent to supply

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

Importing or exporting a psychoactive substance

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(1) A person commits an offence if—

(a) the person intentionally imports a substance,

(b) the substance is a psychoactive substance,

(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 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,

(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 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 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 Drugs 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).

Possession of a psychoactive substance in a custodial institution

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(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 substance, and

(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).

Penalties

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(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 the general limit in a magistrates’ court (or 6 months, if the offence was committed before 2 May 2022), 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) to a fine not exceeding the statutory maximum,

or both;

(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) A 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 the general limit in a magistrates’ court (or 6 months, if the offence was committed before 2 May 2022), 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) to a fine not exceeding the statutory maximum,

or both;

(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 2 years or a fine, or both.

Exceptions to offences

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(1) It is not an offence under this Act for a person to carry on any activity listed in subsection (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) supplying 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 meaning 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 consult—

(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

Meaning of “prohibited activity”

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(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;

(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) The 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.

Prohibition notices

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

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

Premises notices

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(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 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 by 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) the 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) 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 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) 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 years.

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

Prohibition notices and premises notices: supplementary

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(1) This 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—

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