The Psychoactive Substances Act 2016 came in to force on 26 May. It defines a psychoactive substance in section 2 as any substance which:

(a) is capable of producing a psychoactive effect in a person who consumes it; and

(b) is not an exempted substance.

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. This definition is so wide that a number of exemptions are created, including:

  • Controlled drugs (so that the Misuse of Drugs Act 1971 takes priority);
  • Medicinal products, meaning:

a)    any substance or combination of substances presented as having properties of preventing or treating disease in human beings; or

b)    any substance or combination of substances that may be used by or administered to human beings with a view to:

i)    restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action; or

ii)    making a medical diagnosis.

  • Alcohol;
  • Nicotine and tobacco products;
  • Caffeine; and
  • Food, including drink.

To allow for the treatment of illness and for the development of medicinal products, also exempted from the provisions of the act are healthcare-related activities and research.

The statute creates a series of new offences in relation to ‘prohibited activities’ but it should be noted that mere possession is not an offence unless it is in a custodial institution.

‘Prohibited activity’ means any of the following:

a)    producing a psychoactive substance that is likely to be consumed by individuals 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; and

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

These are either-way offences carrying seven years on indictment. The sentence for supply must be aggravated in defined circumstances (section 6).

Possession of a psychoactive substance in a custodial institution is criminalised by section 9 when:

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

c)    the person intends to consume the psychoactive substance for its psychoactive effects.

Sections 12 to 35 contain civil powers for dealing with prohibited activities in respect of psychoactive substances, in particular powers to give prohibition notices and make prohibition orders. These may include access prohibitions, with an offence of failing to comply. These orders will be obtained in the magistrates’ court and  will be a further civil jurisdiction for the youth court. There are provisions for variation, discharge, appeal and transfer to the adult court.

Sections 36 to 54 contain enforcement powers including powers of entry, search and seizure, retention – and disposal.

The criminal charge

For all offences committed on or after 8 April 2016 the victim surcharge is replaced by the criminal charge at a significantly increased set of figures. If any of the offences were committed before that date the old rates apply. Similarly, if any of the offences were committed while a youth, the figures for youths apply.

The debate continues about the enforcement of the payment of such charges. If the court wishes to proceed immediately to enforce the liability, it may make an order for one day’s detention under section 135 of the Magistrates’ Courts Act 1980. This is not a sentence of imprisonment and so does not infringe the provisions of the Anti-social Behaviour Crime and Policing Act 2014 or section 82 of the 1980 act; nor is the power denied by the decision of the Court of Appeal in R v Frimpong [2015] EWCA Crim 1933, which considered the position of a charge imposed at the Crown court, where appropriate time for payment must be allowed.

New guidelines

The new guideline for offences involving dangerous dogs takes effect on 1 July 2016 for all offences sentenced on or after that date, whenever they were committed. The changes have been made to reflect changes in the law made by the Anti-social Behaviour Crime and Policing Act 2014. The act extended the law to cover attacks that occur on private property and introduced a new offence to cover attacks on assistance dogs. There are five separate guidelines:

  • Dog dangerously out of control in any place where death is caused (section 3(1) of the Dangerous Dogs Act 1991);
  • Dog dangerously out of control in any place where a person is injured (section 3(1));
  • Dog dangerously out of control in any place where an assistance dog is injured or killed (section 3(1));
  • Dog dangerously out of control in any place (section 3(1)); and
  • Possession of a prohibited dog, breeding, selling, exchanging or advertising a prohibited dog (section 1(7)).

Qualifying curfews

The importance of solicitors noting their files with, and advising advocates of, time served by clients on qualifying curfews was again emphasised in R v Marshall and others [2015] EWCA Crim 1999. This time may only be deducted from a sentence by a court, and the Court of Appeal is impatient with cases having to be taken to their jurisdiction.

The problem is most easily avoided by a court announcing its decision in the form approved in Hoggard [2013] EWCA Crim 1024: ‘The defendant will receive full credit for half the time spent under curfew if the curfew qualified under the provisions of section 240A. On the information before me the total period is … days (subject to the deduction of … days that I have directed under the step(s) 2 and/or 3 making a total of … days), but if this period is mistaken, this court will order an amendment of the record for the correct period to be recorded.’

Any amendment is then administrative and does not require judicial intervention. In the magistrates’ court judicial intervention can always be accessed under section 142 of the Magistrates’ Courts Act 1980, but in the Crown court the time is limited to 56 days by section 155 of the Powers of Criminal Courts (Sentencing) Act 1980, requiring reference to the Court of Appeal after that time. R v Love [2015] EWCA Crim 1545 confirmed that there is no general discretion to disallow the time on a qualifying curfew and deductions may only be made in accordance with section 240A(3A and 3B) (for example, if already serving another sentence).

Legal aid travel costs

In R v Lawton SCCO.444/14, the costs judge held that a balancing exercise is required between travel time and travel costs, whether the cost of time added by using a slower means of transport is borne by the solicitor or the Legal Aid Agency. He confirmed that if a saving in direct travel cost will be outweighed by the additional cost of the time wasted in travelling by less-efficient means, the less-efficient means of transport will not be a reasonable choice by the solicitor.

He held that mileage should in normal circumstances, during the week, be calculated from the solicitor’s office unless their home is nearer, but that Google is not a reliable substitute for local knowledge of typical traffic conditions and public transport difficulties at particular times of day.