Psychoactive Substances Act 2016

The Psychoactive Substances Act (PSA) 2016 criminalises certain activities related to any substance which “is capable of producing a psychoactive effect in a person who consumes it” and is not an exempted substance. 

The PSA does not replace the Misuse of Drugs Act 1971 (MDA) which carries on applying to controlled drugs not covered by the PSA.

Exempted substances include:

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

Under the Act, possession for personal use is not an offence, but the following activities are:

• Production (including for personal use);
• Supply or offering to supply;
• Aggravated supply or offering to supply (near schools, prisons etc. or using someone under 18 as a courier);
• Possession with intent to supply;
• Importation;
• Exportation;
• Possession in prisons (and other custodial institutions).

Maximum sentences are:

Producers and suppliers might be given one of the following to stop them doing certain activities, without being convicted of a criminal offence:

• Prohibition Notice – a warning to stop doing prohibited activity
• Premises Notice –  a warning to a property owner, landlord etc. to take steps to stop prohibited activity
• Prohibition Order – a Court Order to stop doing prohibited activity
• Premises Order – a Court Order to a property owner, landlord etc. to take steps to stop prohibited activity

Orders can last for up to three years. Breach of an Order is a criminal offence punishable by a prison sentence of up to two years, an unlimited fine, or both.

For all offences, the prosecution will have to prove that a substance is psychoactive. For some substances, there will be existing evidence about their effects, other substances will need careful testing. In some cases, evidence such as witness statements about your behaviour can be used. In some cases, evidence such as witness statements about your behaviour can be used. 

Guidance from the Home Office shows that part of the testing will be looking at the way the PS acts/reacts compared to similar drugs controlled under the MDA. 

Stop and search

You can only be stopped and searched (by police, National Crime Agency officers and customs officials) for psychoactive substances if the authorities reasonably suspect that you have committed, or are likely to commit, one of the offences below.

Possession for personal use is not an offence – you can’t be stopped and searched just for this. But, you might be stopped and searched for a controlled drug (e.g. If ‘a small bag of white powder’ is seen) as the officer won’t know what it is at first. If this happens, you should tell them straight away that it is not a controlled drug and that you want it tested.

Entering, searching and taking items from you

The officers, mentioned above, have the power to enter and search any property under the PSA if they reasonably believe there are items in the building that are relevant evidence for an offence under the Act, and they have a search warrant. They also have the power to search any vehicle that they suspect has evidence of one of the offences.

The authorities can take from you, and keep, anything they find in a search which they reasonably believe is a PS or is evidence of one of the offences.

Keeping and destroying items

Anything that is seized can be kept for as long as is necessary. This will apply where a substance needs to be tested to prove it is a PS, and also if something will be used as evidence in Court.

If officers take an item from you in legal search under the PSA, they have the power to dispose of it as long as:

• They reasonably believe it is PS, but,
• Isn’t evidence of an offence under the PSA, and,
• They don’t think it was being used for an exempted (allowed) activity.

You can’t be searched just for possession of a PS.

Returning items to you

In some cases a PS and/or other items will be given back to you at the end of a case. The Court might order this if they aren’t sure that something:

• Is a psychoactive substance, or,
• Has been used to commit an offence,

OR, even if it is a PS:

• It wasn’t likely to be consumed by anyone for its psychoactive effects, or,
• The item was being used for an exempted activity.

You can also apply for a PS or items to be returned to you.

If you have been arrested or charged for a drugs offence call or email Release for free and confidential advice.