The Psychoactive Substances Act 2016 – doomed to fail?

The controversial Psychoactive Substances Act received royal assent on 28 January 2016 and came into force on 26 May 2016. The Act, broadly speaking, criminalises the production and supply of ‘psychoactive substances’. The purpose of this is largely to stop the spread of ‘legal highs’. Whether or not it will achieve this remains to be seen, although the evidence so far is not promising.

Before I move on to some of the more widely discussed issues raised in relation to the Act, it is worth noting that it does not criminalise the possession of psychoactive substances – unless you are in a ‘custodial institution’, e.g. prison. It would appear that the use of legal highs has become a serious problem in prisons, but it does not automatically follow that criminalising them will solve this problem. The issue of prison conditions and overcrowding is a different topic for debate, but it is difficult to see how potentially imposing a further custodial sentence on someone for possessing a substance for personal use is likely to create an improvement in the current situation.

A poorly defined problem

That issue aside, the two most controversial issues surrounding the Act appear to be:

• The definition of ‘psychoactive’ itself; and
• Whether criminalising the production and supply of ‘legal highs’ will be effective.

To say that the definition of ‘psychoactive substance’ is not straightforward is an understatement. It is defined in section 2 of the Act, and there are two elements to the definition: it is 1) any substance that, by stimulating or depressing the person’s central nervous system, affects the person’s mental functioning or emotional state, 2) except the substances which are set out in Schedule 1 of the Act.

The exceptions are:

• Drugs which are already illegal (the law regarding these has not changed and is largely contained in the Misuse of Drugs Act 1971);
• Medicinal products;
• Alcohol;
• Nicotine and tobacco products;
• Caffeine; and
• Food.

The first part of the definition has caused much debate. The most high-profile piece of controversy took place in March this year. The Advisory Council on the Misuse of Drugs submitted an advisory letter to the government. It submitted that “poppers” (alkyl nitrates) do not fall under the definition of a ‘psychoactive substance’ as they do not have a direct effect on the brain – rather their effect is a result of blood vessels dilating. This led to much discussion about the enforceability of the law. Given that chemical compositions of legal highs change so often, how can it be possible to know whether a particular substance is banned or not?

It also calls into question the very purpose of the Act – what is the point in criminalising the production and supply of certain types of substances and not others? The rationale behind the law seems to focus solely on the effect on the brain, and not the harm the substances causes the user.

An ineffective solution

There is also evidence to suggest that the Act may have the opposite effect to what is intended. A similar law was introduced in the Republic of Ireland in 2010. Between 2011 and 2014, Ireland experienced Europe’s second largest increase in legal high use among 15 to 24 year olds (Spain saw the largest increase). Ireland’s law enforcers have also found it difficult to prosecute suspected breaches of the law.

The UK Act does seem to be a very lazy way of dealing with a complex problem. It is not entirely clear that this law will do much, if anything, to reduce the risk of harm or death caused as a result of taking legal highs. Indeed, David Nutt, the former chair of the Advisory Council on the Misuse of Drugs, has recently argued that the Act will lead to more drug-related deaths. He argues that, for example, while the increased use of mephedrone in the late 2000s led to some deaths, the overall effect was to prevent 300 deaths from cocaine and amphetamine as use of those drugs fell. He states that since mephedrone was banned, the fall in the number of cocaine deaths has reversed.

Whether or not David Nutt is correct, the fact that this Act is now in force is a worrying sign that the government is still turning a blind eye to the unavoidable argument that criminalisation is not the solution to the drug misuse problem. At least, not the only solution. The Act will very likely lead to more convictions, more custodial sentences, more fines, use more court time and more police time, but will it reduce the amount of harm caused by taking drugs? I’m far from convinced it will.