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Joshua Rozenberg: Delayed legal highs law will be a fruitful ground for litigation — when it’s finally implemented

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Poppers are probably exempt from the Psychoactive Substances Act 2016, but no one is quite sure about jalapeño peppers

Instagram (injoyeletro)
Instagram (injoyeletro)

If everything had gone according to plan, new legislation designed to tackle so-called “legal highs” would have come into force this week. We should not assume that the delay in implementing the Psychoactive Substances Act 2016 means that headshops can continue to sell these drugs indefinitely. The Home Office promised on 24 March that the act would commence “in its entirety in the spring”. But, as I commented on Law in Action more than a week earlier, spring in Whitehall is a season that lasts until the end of July.

Once the law comes into effect, I suspect it will be a fruitful ground for litigation. That’s because of the unusual way in which it is drafted. When the Misuse of Drugs Act 1971 was passed, it was possible for parliament to specify, accurately, the substances it outlawed. Now, a new drug can be synthesised more quickly than an old one can be defined. So those who drafted the new legislation have chosen to define their targets by what they do rather than by what they are. And that’s where the problems start.

Broadly speaking — and you’ll need to read the act for the full details — a psychoactive substance is one that affects a person’s mental functioning or emotional state by stimulating or depressing the central nervous system. That definition is wide enough to cover medicines, alcohol, tobacco, caffeine and even food — so there are specific exemptions covering these items. There’s also an exception for drugs that are already controlled under the 1971 legislation.

There are further exemptions from the 2016 act to protect health care professionals and people engaged in approved scientific research. And the legislation applies only to substances likely to be consumed for their psychoactive effects, so it should be safe for churches to continue swinging censers of incense around a gently spluttering congregation.

It’s not an offence to possess psychoactive substances for your own use, unless you’re in any sort of prison. But it will be an offence for people to supply these products. The maximum penalty is seven years imprisonment and similar penalties will apply to those who make or import them. Importing includes buying a psychoactive substance for your own use from a company based outside the UK. The law applies across the entire United Kingdom.

A good illustration of the problem of legislating in this way is the status of poppers — alkyl nitrites used particularly by gay men. The government said in January that it would consider whether or not to exempt poppers from the act. Clearly, the minister thought they were covered by the legislation.

Last month, though, the government’s Advisory Council on the Misuse of Drugs said that poppers did not come within the definition in the act after all. Its “consensus” view was that “a psychoactive substance has a direct action on the brain and that substances having peripheral effects, such as those caused by alkyl nitrites, do not directly stimulate or depress the central nervous system”.

That, of course, is only an opinion — but a very authoritative one which any defence lawyer would rely on. And the more thoughtful lawyer will note the reference to substances having “peripheral effects” on the brain. Who’s to say that this doesn’t cover the particular substance your client is accused of supplying?

As a defence lawyer, then, you’ll be trying to argue that the “plant food” your client offered for sale online was not psychoactive. And how can the prosecutor prove that it was? Only by trying it out on somebody and seeing what effect it has on the central nervous system. But that, of course, would be unethical, not to say illegal.

The Home Office says that psychoactivity can be established by laboratory testing. And prosecutors will presumably argue that a new variant is just as damaging to a person’s mental functioning or emotional state as a similar compound that has previously been established as psychoactive. But will that stand up in court?

Rudi Fortson QC, from 25 Bedford Row, told me that it’s almost impossible to prove that a substance will have a psychoactive effect in the absence of human clinical trials or animal testing, which would not be permitted.

What’s more, he said, there was nothing in the act about potency. He commented:

How much of the drug is required before it is sufficient to produce a psychoactive effect? The act doesn’t tell us.

Nor is there any distinction between different drugs according to the level of harm they cause. Fortson continued:

For all we know, a drug might be beneficial — but, nonetheless, it is psychoactive. It is not an exempted product, it is not a medicinal product and it’s not a controlled drug; and therefore it falls within the ambit of the legislation. So one could take the view that [the act] is far too broadly drawn, far too wide-reaching and doesn’t discriminate in respect of the relative harm of various drugs.

A glance at schedule 1 shows the difficulties parliament had in defining something as basic as food. Cocoa is fine, we are told by the government, and so is nutmeg. We shall still be allowed to consume “any substance which is ordinarily consumed as food and does not contain a prohibited ingredient”. A prohibited ingredient means “any psychoactive substance which is not naturally occurring in the [food] and the use of which in or on food is not authorised by an EU instrument”.

That was put in to allow people to continue using nitrous oxide chargers in their whipped cream dispensers — while banning use of the gas for other purposes. But where does the definition leave shops selling chilli sauces, particularly products imported from non-EU countries? How will suppliers know whether there’s an EU instrument covering jalapeño peppers, the habanero pepper, its relative the Scotch bonnet pepper and the even hotter Naga Viper pepper? Don’t try these at home, incidentally.

The legislation runs to 63 sections and five schedules. There are also detailed explanatory notes. There will probably be a Home Office circular and perhaps other guidance — which may explain the delay in bringing the legislation into effect. It’s far from simple.

Critics of the legislation say it will lead to few prosecutions and may result in little more than driving the drugs problem underground, making it harder to resolve. But that is to discount the educational effects of the law. Most of us try — either for reasons of principle or pragmatism — to stay broadly within the law. If a friend asks us to buy an exotic recreational substance from an apparently legitimate website, we may rationalise our behaviour by saying that if there was anything wrong with it there’d be a law against it.

Well, soon, there will be. And perhaps the risk of a criminal record will be a deterrent to taking an untested back-room drug — even if the risk of death is not.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the second in a series of articles that he will be writing for Legal Cheek about law-related topics in the news.

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