Psychoactive
Substances Act
A council guide
Guidance
Psychoactive Substances Act: A council guide
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Psychoactive Substances Act: A council guide
Preface
The Psychoactive Substances Act (‘the Act’) was passed on 28 January
2016 and commenced on 26 May 2016. The Act introduces a blanket ban
on the production and distribution of psychoactive substances, defined as
any substance which is capable of producing a psychoactive effect in a
person who consumes it (and which is not an exempted substance).
The Local Government Association (LGA) has consistently argued for new legislation to tackle
the spread of new psychoactive substances. Many councils are extremely concerned about
the antisocial behaviour and health risks associated with use of them in their areas, and in
particular their popularity among teenagers and young people. Having worked for many years
with young people in deprived communities, I have seen at first hand the huge damage caused
by these substances. Although trading standards and community safety teams have worked
tirelessly to try to block the sale of new psychoactive substances, there was no single or clear
legislative basis on which to do so, making it time consuming and difficult to effectively tackle
the problem. Existing drug laws have proved ineffective, since new psychoactive substances
have been developed at such speed that by the time one substance is controlled, another one
with a slight change in chemical structure could take its place on the market.
We therefore welcomed the introduction of the Psychoactive Substances Bill in summer 2015,
and supported its passage through Parliament. By introducing a blanket ban, the Act has
adopted the simple approach advocated by the LGA following our previous calls to outlaw the
sale of psychoactive substances, and provides a very clear basis and tools with which to act.
The aim of this document is to provide an overview of the Act and a short guide for councillors
and officers. The extent to which councils are involved in the enforcement of the new
Act is likely to vary from place to place, depending on the nature of local problems linked to
psychoactive substances and the council’s previous involvement in addressing them. While
primary responsibility for enforcement of the ban will rest with the police, there is scope for
councils to play a supporting role in implementation and enforcement. Councils intending to
be involved in enforcement should liaise with local police to agree a partnership approach
for psychoactive substances related work in their areas. As the Act takes effect, I would
encourage all colleagues with concerns about the issue to do so.
Councillor Simon Blackburn
Chair, LGA Safer and Stronger Communities Board
May 2016
Psychoactive Substances Act: A council guide
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The Psychoactive
Substances Act –
an overview
Background
New psychoactive substances, often
misleadingly referred to as ‘legal highs’,
is an umbrella term for products that
are largely intended to mimic the effects
of controlled drugs. New psychoactive
substances can be consumed as either:
smoking substances, powders (for snorting
or injecting), tablets, and liquids. They can
be synthetic or herbal material, such as
fungi or plant based and can be grouped
according to the type of drug they are
designed to mimic:
Section 2(1) defines psychoactive substances
for the purpose of the Act 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.’
Section 2 goes on to clarify that:
‘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’
• synthetic cannabinoids
and that:
• stimulant type drugs
‘a person consumes a substance if a person
causes or allows the substance or fumes
given off by the substance to enter the
person’s body in any way.’
• hallucinogenic
• opiates.
Prior to the introduction of the Act, the market
for new psychoactive substances had been
characterised both by the speed with which
new products were developed to circumvent
drug controls and by marketing strategies
portraying the substances as other products
(for example, air fresheners, plant food etc).
New psychoactive substances have
been sold overtly from ‘head shops’
(shops specialising in the paraphernalia
associated with cannabis) and from other
stores (such as garages and corner shops),
as well as over the internet.
Defining psychoactive
substances
The Act covers both new and evolving
substances, as well as other substances
that have been used as intoxicants for many
years (for example, laughing gas and glue).
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A number of substances which would
otherwise fall within the scope of the Act are
exempted. These are listed at Schedule 1
to the Act, and are:
• controlled drugs (to which the Misuse of
Drugs Act applies)
• medicinal products
• alcohol
• nicotine and tobacco products
• caffeine/caffeine products
• food.
Following advice from the Advisory Council
on the Misuse of Drugs, the Government has
accepted that alkyl nitrites, commonly known
as poppers, do not meet the definition of a
psychoactive substance under the Act as they
are not considered to have a direct effect on
the central nervous system.
Psychoactive Substances Act: A council guide
Enforcing the Act will rely on an
understanding of and evidence as to whether
a substance is capable of producing a
psychoactive effect in a person. The Home
Office’s Centre for Applied Science and
Technology (CAST) has commissioned a
forensic contract that will enable such testing
to take place on an ongoing basis, and
is building up a central reference bank of
substances that have been tested for their
psychoactivity. Further information about
this is set out later in this document.
Relationship between the
Psychoactive Substances
Act and Misuse of Drugs
Act 1971
• possession in a custodial institution
(section 9).
Unlike controlled drugs, possession of a
psychoactive substance is not in itself an
offence, other than in a custodial institution.
The offences in section four, five, seven,
eight and nine rely on evidence that:
• the act was intentional
• the defendant must have known or
suspected, or ought to have known
or suspected that the substance is a
psychoactive substance, and
• the defendant must have known or been
reckless as to whether the psychoactive
substance is likely to be consumed for its
psychoactive effects.
The Misuse of Drugs Act 1971 remains on
the statute books and continues to be the
main piece of legislation for controlling
harmful drugs. The Psychoactive Substances
Act covers all psychoactive substances that
have not been assessed for control under the
1971 Act. The 1971 Act will continue to be the
assumed route for drugs enforcement activity
unless there are specific circumstances or
substances that give clear grounds to
suspect offences under the 2016 Act.
A person guilty of an offence under section
four to eight is liable on summary conviction in
England and Wales to a prison sentence of up
to 12 months, a fine, or both.
Enforcement of the Act –
criminal offences
Alongside the criminal offences outlined
above, the Act also creates four civil sanctions
to offer an alternative to criminal proceedings
in relation to the following prohibited activities:
The Act introduces a range of offences
designed to prevent the production,
distribution, sale and supply of psychoactive
substances. These offences are:
It is important to note that there are no age
restrictions in the Act. The prohibition on
supply applies to people of all ages.
Enforcement – civil
sanctions
• producing a psychoactive substance
that is likely to be consumed for its
psychoactive effects
• producing a psychoactive substance
(section 4)
• supplying such a substance
• supplying or offering to supply a
psychoactive substance (section 5)
• importing or exporting such a substance
• offering to supply such a substance
• aggravation of section 5, through supply
in the vicinity of a school, or for use by a
person under 18 or in a custodial institution
(section 6)
• assisting or encouraging any of the
prohibited activities above.
• Civil sanctions do not apply to the offence
of possession with intent to supply.
• possession with intent to supply (section 7)
• importing or exporting psychoactive
substances (section 8)
Psychoactive Substances Act: A council guide
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The four civil sanctions outlined in the Act are:
A prohibition notice
This requires the person to whom it is given
to not carry on any of the prohibited activities
above, or a prohibited activity which is
described in the notice (section 13).
A premises notice
This can be given to a person who owns,
leases, occupies, controls or operates a
specific premises and requires them to take
all reasonable steps to prevent any of the
prohibited activities above, or a prohibited
activity specified in the notice, from being
carried on at the premises (section 14).
A prohibition order
This is an order prohibiting the person against
whom it is made from carrying on any of the
prohibited activities above, or a prohibited
activity specified in the order (section 17).
A premises order
This can issued to a person who owns,
leases, occupies, controls or operates a
specific premises, and requires them to take
all reasonable steps to prevent any of the
prohibited activities above, or a prohibited
activity specified in the notice, from being
carried on at the premises (section 20).
Prohibition and premises notices can be
granted by a senior officer of the police,
British Transport Police, National Crime
Agency or Border Force, or a local authority,
where there is reasonable belief that:
• the person is or is likely to be carrying on a
prohibited activity and
• it is necessary and proportionate to give
the notice for the purposes of preventing
the person from carrying on any prohibited
activity (in the case of a prohibition
notice)
• that a prohibited activity is or is likely to be
carrying on at a particular premises, and
the person owns, leases, occupies, controls
or operates the premises and
• that it is necessary and proportionate
to give the notice for the purposes of
preventing any prohibited activity from
being carried on at that premises (in the
case of a premises notice).
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Sections 15 and 16 of the Act specify
provisions for the giving of prohibition and
premises notices, including setting out the
grounds for giving the notice and the possible
consequences of non-compliance, how a
notice is deemed to be given to a person
and when it is considered to be effective.
Notices can be withdrawn by giving a notice
to that effect.
Although there are no direct sanctions for
breaching a notice, an officer may apply
for a prohibition/premises order if the
person fails to comply with the notice
(or in more serious circumstances, escalate
to criminal prosecution).
Prohibition and premises orders can be
issued by a court on application by a law
enforcement agency, including a local
authority. Alternatively, a court may impose a
prohibition order of its own volition following a
conviction for the offences in section 4 to 8 of
the Act.
In general, a prohibition or premises order will
be sought where a person subject to a notice
has breached the notice. However, an order
may be sought without having issued a notice
if there are grounds for believing the person
would fail to comply with the notice.
Prohibition or premises orders can be issued
on application where:
• a court is satisfied that a person has failed
to comply with a prohibition notice, or
• where no notice has been given, it is
satisfied that a prohibited activity is or is
likely to be carried on by the person/at the
premises, and that the person would fail to
comply with a notice if given, and
• the court considers it necessary and
proportionate to make the order for the
purpose of preventing any prohibited
activity by the person (in the case of a
prohibition order).
• a court is satisfied that a person has failed
to comply with a premises notice in respect
of a premises that they own, lease, occupy,
control or operate, or
Psychoactive Substances Act: A council guide
• where no notice has been given, it is
satisfied that a prohibited activity is or is
likely to be carried on at the premises, and
that the person would fail to comply with a
notice if given, and
with a prohibition or premises order. Stop and
search powers may be exercised in any place
which the officer lawfully has access to.
• the court considers it necessary and
proportionate to make the order for the
purpose of preventing any prohibited
activity at the premises (in the case of a
premises order).
Where a court makes an order based on an
earlier notice not being complied with, the
notice is considered to be withdrawn. It is an
offence not to comply with a prohibition or
premises order; anyone convicted could be
liable to a prison sentence of up to 12 months,
a fine, or both.
Use of civil sanctions
As stated, civil sanctions offer an alternative
route to criminal proceedings, and can
facilitate a graded or progressive approach
to tackling psychoactive substances. It is
anticipated that law enforcement officers
– potentially working with local authority
partners – may choose to use civil powers
to act swiftly to nip problems in the bud or
adopt a proportionate approach to low level
or first time offending. However, it will be for
each relevant agency to determine which
approach, civil or criminal, to adopt
in individual circumstances.
The Act2 provides a power of seizure for
any officer exercising the power to search.
An officer may seize and detain anything
found in the course of a search under the Act
which the officer reasonably believes to be
either relevant evidence or a psychoactive
substance (whether or not it is relevant
evidence). Where items seized prove not
to be evidence, officers may dispose of
them in whichever way they think suitable,
providing that at the time of seizure the officer
reasonably believed that the item was a
psychoactive substance which if it had not
been seized was likely to be consumed by an
individual for its psychoactive effects.
In practical terms, this means that although
there isn’t an offence of simple possession,
officers conducting a search under the Act
are nevertheless able to seize psychoactive
substances from a person in possession
of them.
Other powers under
the Act
The Act also provides a range of stop and
search, seizure, retention and disposal
powers for police and customs officials.
Powers to search people, premises, vehicles,
vessels etc are similar to those used under
the Misuse of Drugs Act 1971. The Act1
provides a power of stop and search which
applies where an officer has reasonable
grounds to suspect that a person has
committed, or is likely to commit any of the
offences relating to production, supply,
aggravated supply, possession with intent to
supply, importation/exportation, possession
in a custodial institution or failure to comply
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Sections 36-39
2
Section 43
Psychoactive Substances Act: A council guide
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Implementing the Act and
the role of councils
Impact of the new
legislation and expected
enforcement approach
The Government and law enforcement
agencies anticipate that the blanket ban
introduced by the Act will lead to a significant
reduction in the number of local ‘head shops’
selling psychoactive substances, as happened
in Ireland when a similar ban was introduced
in 2010. Similarly, it is expected that the
existing number of online retailers will reduce,
although a shift to illicit selling via the ‘dark
web’ is also expected.
As a general principle, it is expected that
police forces, supported by the National
Crime Agency (NCA) will take the lead role
in enforcing the Act, reflecting the clearer
link to hardened or determined criminality
likely to be associated with continuing to
produce or supply psychoactive substances
despite the ban on doing so. There is also a
clear expectation that the police and Crown
Prosecution Service (CPS) will take firm action
to enforce the Act, particularly where statutory
aggravating factors are present.
The introduction of the Act means that there
should no longer be a need to use other
pieces of legislation (such as the General
Product Safety Regulations) to tackle the sale
and use of psychoactive substances.
The role of councils
The future role of councils may vary from place
to place, depending on previous local activity
around psychoactive substances and head
shops, and the nature of any ongoing local
issues linked to them. With the Act providing
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a clear framework through which to tackle
psychoactive substances, it is important that
councils intending to support enforcement
activity should discuss this with their local
police forces, so as to understand their
approach and ensure any council
activity complements rather than duplicates
police activity.
Future council activity in relation to
psychoactive substances could fall into five
main areas:
Dealing with legacy cases
Some council trading standards teams are
likely to be dealing with legacy cases involving
action against headshops or other distributors
of psychoactive substances based on other
pieces of legislation. There is no reason
why these should not progress despite the
introduction of the Act; however, as set out
above, it is not expected that there will be any
new cases relating to the production or supply
of confirmed psychoactive substances using
anything other than the Act.
Advising retailers
Providing advice and guidance to businesses
is a key part of the trading standards
function, and trading standards teams can
therefore support the police in ensuring local
businesses are familiar with the requirements
of the Act. This could be through specific,
targeted initiatives, or as an add-on to other
work in which trading standards are engaging
with relevant businesses.
In particular, trading standards teams can play
a role in helping retailers to manage the sale
of dual use products. Some substances which
are capable of producing a psychoactive
effect and are caught by the Act when
supplied and used for this purpose also
Psychoactive Substances Act: A council guide
have legitimate uses; for example, solvents
and nitrous oxide. To avoid committing an
offence under the Act, retailers and their staff
need to develop procedures for ensuring
they do not knowingly sell psychoactive
substances intended to be consumed for their
psychoactive effects, and that they are not
reckless as to whether they do so.
Trading standards teams are used to working
with retailers to provide advice and guidance
on age restricted sales, which similarly require
retailers to make some form of judgement
about the person trying to buy a product.
Trading standards teams are therefore well
placed and likely to be involved in supporting
businesses to ensure they are managing the
requirement to consider, before a product is
sold, how a person might be likely to use it.
The Act has been included within the scope
of the Regulatory Sanctions and Enforcement
Act 2008, meaning that retailers can establish
a primary authority relationship covering
their management of the sale of these goods.
Therefore, in due course there may be
primary authority plans in place with national
retailers or trade associations setting out
agreed processes for managing products
which are potentially caught by the
Act, to apply across all their stores or
members’ stores.
The Home Office, in conjunction with the
Association of Convenience Stores, have
developed guidance on the Act for retailers.
This is available at https://www.gov.uk/
government/publications/psychoactivesubstances-act-guidance-for-retailers/
psychoactive-substances-act-2016-guidancefor-retailers
It is important to note in this area that age
restricted sales controls relating to solvents
have now been replaced by what is effectively
a usage test under the Act, as the Intoxicating
Substances (Supply) Act 1985 has been
repealed following the introduction of the Act.
As stated above, there are no age restrictions
in the Act, with the ban applying to the supply
of psychoactive substances to people of
all ages.
Supporting police enforcement activity
with non-compliant businesses
As stated above, the extent to which councils
become involved in supporting local police
to enforce the Act is likely to depend on
previous council activity in this area (which
has often been led by trading standards and
community safety teams), and the nature
and extent of ongoing issues relating to
psychoactive substances in the local area.
Based on the assumption that headshops that
predominantly sell psychoactive substances
are expected to close following the
introduction of the Act, further issues linked
to premises based sales of psychoactive
substances may be associated with shops
where they have previously been sold, such
as garages or corner shops. Since in the
course of their other work (for example,
around age restricted sales) these may be
premises that council teams (notably trading
standards) are visiting anyway, there may
be a role for them in monitoring compliance
with the Act and providing intelligence on any
issues in these stores.
As a starting point, councils should liaise with
local police to:
• ensure they are aware of the approach the
police are taking to the issue
• consider how through their visits to relevant
premises, council officers can support
police messages about enforcement of the
Act and identify possible concerns
• agree protocols for sharing intelligence
about any issues that are identified.
Intelligence may not simply be linked to
psychoactive substances, as council teams
will be well placed to advise police of
other/previous compliance issues linked to
particular premises. This may be relevant
when deciding the most appropriate action
if new issues are identified.
There is also scope for councils to take
a more active role than simply sharing
intelligence with the police, given that they
are empowered under the Act to issue
prohibition and premises notices. Councils
that have taken a very active role on this
issue in the past may wish to remain
Psychoactive Substances Act: A council guide
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involved in this type of enforcement, and
the police may welcome councils providing
a soft enforcement approach whereby first
or less serious offences are dealt with by
councils, for example through using the civil
sanctions in the Act. The key point is that
such an approach should be aligned with
local police activity to avoid duplication of
effort. To secure this, there should be joint
understanding or a protocol covering when
a council might take action, and how both
the police and councils will keep each other
informed of issues at specific premises. In
two-tier areas, this will need to consider the
role of county and district councils, given the
possible interest of both trading standards
and community safety teams.
Where there is a requirement for a substance
to be tested for psychoactivity, this will need
to be led by the police. This is because
police forces, rather than councils, will be
able to refer to CAST’s central reference
bank of substances, and able to utilise the
forensic contract set up by CAST to test
substances for psychoactivity following the
implementation of the Act. There should be
no need for any council to establish its own
contract or be directly involved in testing
substances for psychoactivity.
Use of other powers
and tools
The Act gives more clarity and creates
specific criminal offences and civil sanctions
to deal with psychoactive substances
which are not controlled drugs. However,
councils and the police may still wish to
consider whether other measures should
be applied where there are ongoing issues
with psychoactive substances. For example,
public space protection orders (PSPOs) could
be considered if there are specific antisocial
behaviour issues associated with use of
psychoactive substances. In light of ongoing
media scrutiny of the use of PSPOs, areas
considering introducing them should ensure
there is a comprehensive evidence base and
thorough consultation process before doing
so. The LGA is developing guidance on the
introduction of PSPOs, which will be available
in summer 2016.
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There may very occasionally still be a role
for legislation previously used to try to tackle
psychoactive substances – such as the
General Product Safety Regulations 2005
or Human Medicines Regulations 2012 – in
relation to cases involving substances which
prove not to be psychoactive or which fall as
exemptions (eg medicinal products).
Any such instances would need to be dealt
with on a case by case basis, in conjunction
with other local agencies.
Education, advice and support
Finally, as part of their public health
responsibilities, councils continue to have
on important role in providing support for
users of controlled drugs and psychoactive
substances, and for educating people about
the dangers of using them. Councils work
closely with partners in the police, health
system, probation and voluntary sector to
respond to locally identified needs relating
to drug and alcohol dependency. Following
the introduction of the Act, council teams
involved in wider drugs prevention/support
work (notably public health and community
safety teams) will wish to monitor the impact
of the Act on local use of new psychoactive
substances. This will enable them to assess
the implications of changing patterns of
use, and users, for future drugs and alcohol
programmes.
Psychoactive Substances Act: A council guide
Psychoactive Substances Act: A council guide
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REF: 4.5