Journal

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

By on
14

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.

14 Comments

A Barrister

I now have the rather bizarre image of Joshua Rozenberg tripping on a Naga Viper pepper in my head…

Chambers' Cat

Pass the Dutch (pancake) on the left hand side

Ellie

This whole act was doomed from the start, a totally backward step for the criminal law

Anonymous

There is a reason that the rest of the world are taking a completely different approach to analogue substances and recreational drugs as a whole. Blanket criminalisation with schedules as complex as our flawed tax system won’t work in practice and its not even completely clear what the root issue they are trying to resolve is, as analogues are a result of issues elsewhere in the system.

Maybe Prof Nutt could have provided valuable consultation on the matter had he not been fired for his opinions.

Bun's Wife

An interesting article. Thanks LC.

Anonymous

As an aside, throughout the 50 states of America it is not illegal to take upskirt photos of members of the public whether they are known to you or not.

I wonder what the US position will be on “legal highs”?

Anonymous

They are curretly banning kratom for giving a legal high. Which it doesnt. It is ridiculous.

Martin Powell

Joshua says “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”. The evidence is clear – No it won’t.

Firstly, possession of these drugs for personal use is not being criminalised by the NPS Act – only supply and import is – so for most people there is no threat of a criminal record. The Government rightly concluded criminalising the people who use these drugs would do more harm than good. (Which of course begs the question – why then are users of other drugs also not decriminalised?)

Specifically re NPS legislation – Ireland brought in similar legislation only to see use of these drugs rise to the highest in Europe, and similarly Poland which has seen poisonings rise.

But even more importantly, the evidence is quite clear that people take drugs for a complex mix of social, economic and cultural reasons with criminal status having at best a marginal effect on use levels – there is no deterrent effect from criminalisation. Most people don’t care if it’s Class A, B or C, and for every person put off by criminalisation, another is attracted by what the Home Office calls the ‘Forbidden fruit effect’.

That there is no deterrent effect for criminalising illegal drugs is clear from evidence from around the world gathered by a whole range of authoritative bodies including the WHO, EMCDDA and even a report by the Home Office looking at 11 different countries with widely varying approaches concluded; “We did not in our fact-finding observe any obvious relationship between the toughness of a country’s enforcement against drug possession, and levels of drug use in that country” https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/368489/DrugsInternationalComparators.pdf

In short, the NPS Act will push the market underground without addressing the key issue – these drugs are a direct product of prohibiting traditional (and sometimes less dangerous drugs) like ecstasy and cannabis – as the near complete absence of synthetic cannabinoids in the Netherlands where cannabis is legally available demonstrates.

The only way to deal with this issue is to introduce a system of legal regulation that allows differential stringency of regulation, bans on promotion, and careful pricing to steer users towards the least worst options – and that framework should include all drugs, including alcohol and tobacco. Because the reality is people will take drugs – the only choice is whether they are supplied by criminals, or by doctors, pharmacists and licensed outlets.

For more on this see the Options and Alternatives section of the Alternative World Drug Report which also includes case studies from a number of countries http://www.countthecosts.org/

Anonymous

I use a legal high called kratom, a wonderful, harmless herb that will be caught up in this legislation. I used to be a heavy drinker, however, since I have been taken kratom over the past 2 years, I only drink every 2-3 weeks. Unfortunately I will probably have to turn back to alcohol abuse again when kratom is banned. Or get it from a dealer, who could cut it with any substance: dangerous or not.

Anonymous

Why don’t you stop taking kratom and control your drinking?

If you can’t control your drinking I’m sure you can find the sort of help that doesn’t require you to take unregulated narcotics.

Anonymous

The threat of a criminal record certainly won’t stop me from using anything I want. Unlike drinkers, I cause no trouble whether I’m smoking weed, herbal blends or enjoying tryptamines, which I can still easily get more than a year after they were blanket banned. I don’t see why we aren’t allowed to do with ourselves as we please so long as we’re no harm to society. Alcohol drinkers, nicotine smokers are the most expensive burdens most countries around the world have to tolerate and the annoying thing is, it’s mostly them who have a problem with every other drug. Legal highs are nothing new, they’ve been around for the best part of two decades and it’s only recently you hear all of the scare stories, ever since the govt wanted even more drugs gone. The laws, whether going through or not have absolutely nothing to do with the safety of the public, if they were interested in that, booze and fags’d be on top of the list, no, it’s about conservative Christians who believe that what they do is ok but what we do isn’t. Ban them, don’t ban them, the only difference it makes is where they get bought from and how much of the money gets paid towards tax. Personally I’d prefer them to be on the streets because at least then, with each drag I’d know I paid nothing to the government towards it and can leave that honour to the slaves that are drinkers/smokers.

Anonymous

Why should I stop taking kratom when it causes no harm at all? In fact there are no negative effects to it compared to the poisons that are alcohol and tobacco. I have been using it for 2 years and it is hardly an unregulated narcotic. Maybe you should do some research, kratom can be used as a painkiller and is considered a medicinal herb, it even has even helped people who have battled with heroin addiction. Also, I have had no luck with drug or alcohol services for treating my alcohol abuse, they are so vastly underfunded these days I’m better off going alone. Still, this new bill is draconian ‘you can only alter your mind in ways which are government approved, you can only have fun in government approved ways, such as buying a TV licence and watching Eastenders’. People have a right to their own bodies and people should have the free will to choose what they put in their bodies and I choose to take kratom.

Colin Faragher

I am reminded of these remarks of the Bishop of Peterborough made during the the House of Lords’ second reading debate of the Intoxicating Liquor (Licencing) Bill on 2nd May 1872.

“…if I must take my choice… whether England should be free or sober, I declare … that I should say it would be better that England should be free than that England should be compulsorily sober. I would distinctly prefer freedom to sobriety, because with freedom we might in the end attain sobriety; but in the other alternative we should eventually lose both freedom and sobriety.”

(HL Deb 02 May 1872 vol 211 cc74-97)

Ahead of its time I think.

Derek Williams

No, the law doesn’t prevent people from trying something they’re interested in. I know that from direct personal experience.

Join the conversation