The Psychoactive Substances Act is a bad law and the Government doesn’t even know what it means

The Psychoactive Substances Act, which came into force last week, has been much criticised.

There have been two broad criticisms: first, that it will fail to control the harm done by new psychoactive substances; secondly that it will prove largely unenforceable.

It will certainly have the effect of driving the sale of formerly legal highs underground. Possession of such substances remains legal (except in prisons), but their supply, possession with intent to supply, import and export have become criminal offences. Thus, the only means of obtaining substances that are in themselves legal to possess, will be through criminals. Businesses that once traded openly, and paid taxes, have now closed.

Opening up a whole new area of drugs business for criminals will create new problems: robberies, burglaries and violence are the usual accompaniments to the business of drug dealing.

The reason given for banning new psychoactive substances is that they harm those who use them. By restricting their supply it is hoped that fewer people will use them, and so fewer will be harmed. The problem with this theory is that most of the empirical evidence has shown it to be deeply flawed, if not complete nonsense.

PROHIBITION LEADS TO MORE DRUGS DEATHS

It is, of course, the same policy of prohibition that has been pursued against controlled drugs. At first glance that policy appears to be having at least some beneficial effect. According to the Crime Survey for England and Wales, for some years prior to 2003/4 approximately 12% of adults had taken a controlled drug in any given year. In recent years that has fallen to around 8 – 9%. This might indicate a modest degree of success, although the superficially encouraging decline in overall drug use conceals the fact that the use of Class A drugs actually increased slightly during the same period, from 2.7% to 3.2%.

Unfortunately, any optimism caused by the drop in the proportion of people using drugs quickly turns to sombre pessimism as soon as one realises that a greater proportion of people are now being killed by controlled drugs.

Far and away the biggest killers are the opiates: heroin and its relatives. Cocaine comes in at a fairly distant second place. Legal highs are, at present, a distant “also ran.”

According to the ONS in 1996 there were 7.7 deaths per million in which opiates were registered as a cause of death. By 2014/15 (the last year for which figures are available) the figure had risen to 16.9 deaths per million.

Cocaine related deaths had risen from 0.2 to 4.4 per million over the same period.

(For what it is worth, New psychoactive substances had a death rate of nil in 1996, but were implicated, at least partially, in 1.4 deaths per million in 2014.)

A correlation between prohibition and a rising death rate does not in itself show that the prohibition causes drugs deaths. The causes are obviously very complex and supporters of the existing regime might plausibly say “there might have been even more deaths without prohibition.” On the other hand it ought to worry anyone who thinks that banning new psychoactive substances will help to reduce what is still a relatively minor part of the overall drug problem.

There are other grounds for doubting that the ban on psychoactive substances will actually reduce the harm they cause. Take the drug mephedrone (sometimes known as meow or m-cat). It was legal – an early “legal high” – in this country until 2010 when it was classified as a Class B drug.

The above chart, produced by the Office for National Statistics, shows what happened when this once legal high was banned. There was indeed a modest reduction in its use, but (at least for the first two years) also sharp rise in deaths from its use. Usage then began to rise, and deaths involving its use fell to double what they had been in the year in which it was banned. It is hardly a very encouraging picture for those who expect the Psychoactive Substances Act to reduce the harm caused by previously legal highs.

IRISH EXPERIENCE: A DISMAL FAILURE

The new Act is very closely based on the Irish Psychoactive Substances Act which came into force in 2010. On any fair assessment the Irish law has been a dismal failure, with both the use of and deaths from NPSs continuing to rise,¹ while according to one drugs user who talked to the BBC:

“When the law changed and the shops were closed down people started selling it on every street. It was even easier to get, because there was someone going to get it for you, all you had to do was meet them. You could also order it off the internet.”

This anecdotal evidence seems to be confirmed by the statistics. The 2014 Euro Flashbarometer found that – at least among 16 – 24 year olds – Ireland now has the highest usage rate of NPSs in the whole of Europe, with 9%. And despite the closing down of previously legitimate businesses only 5 successful prosecutions have taken place under a law which appears to be virtually unenforceable against the criminal gangs that have now taken their place.

IS THE LAW ENFORCEABLE?

This brings us to the second problem with the Psychoactive Substances Act 2016. There is no reason to suppose that its enforcement will be any easier in this country than its equivalent has been in Ireland.

The problems it is likely to encounter are well-illustrated by the Government’s apparent inability to know what substances its wretched Act has actually made it illegal to supply. We can leave on one side the slightly frivolous point that the definition of a psychoactive substance is wide enough to include things like air freshener, flowers and incense, although as Ian Dunt (who deserves enormous credit for highlighting the various follies of the Act) has pointed out, it probably is. No-one, as Dunt says, is going to be prosecuted for selling flowers.

The crucial definition is contained in Section 2, under the heading: Meaning of “Psychoactive Substance” etc.²:

(1) In this Act “psychoactive substance” means any substance which—

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

(b) is not an exempted substance (see section 3).

2. For the purposes of this Act 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; and references to a substance’s psychoactive effects are to be read accordingly.

IS THE SUPPLY OF POPPERS NOW LEGAL OR ILLEGAL?

Poppers, or alkyl nitrites, are another matter though. When the Bill was being debated in Parliament concern was expressed by many, notably including the former Justice minister Crispin Blunt, that it would make the supply of poppers illegal, even though the drugs are widely used by gay men with very little evidence that they have caused much serious harm.

If this was a legitimate concern – and I think it was – one solution would have been to add alkyl nitrites to the already lengthy list of exempt substances, along with coffee, tobacco and alcohol. Instead of adopting that simple approach, the Home Office instead referred the question to the Advisory Council on the Misuse of Drugs (ACMD), a 25 strong committee consisting mostly of doctors and pharmacologists, although it also contains a police officer a sociologist and, one legally qualified member, a non-practising solicitor who also sits as an immigration judge.

There are two entirely different questions here:

1. Should the supply of alkyl nitrites be banned?

2. Does the definition of “psychoactive substance” in S.2 in fact ban such supply?

The Committee was well-qualified to advise on the first of these questions, and did so by noting that the advice it had given in 2011 remained unchanged. Although the use of poppers carried some risk, “their misuse … is not seen to be capable of having ‘harmful effects sufficient to constitute a social problem.”

However, it also went on to consider the second question: regardless of whether it should do so, does the S.2 definition in fact ban them?

Poppers have various effects according to the committee. One of the main ones is to relax “smooth muscles” including the anal sphincter and the vagina. That effect does not appear to have anything to do with the “central nervous system.”

However they also have other effects, which the Committee then went on to note:

Inhaled nitrites are rapidly absorbed into the bloodstream, with the onset of effects being seen in seconds. The vasodilatory effects promote an increased blood flow, which often results in temporary reductions in blood pressure accompanied by increased heart rate and light-headedness. Vasodilation of cerebral blood vessels along with warm sensations and facial flushing are common and contribute to the users’ perceptions of a “rush” or “high”.

Producing a “high” is exactly the sort of effect on an “emotional state” that is required for a substance to be deemed “psychoactive.” It is not, however, sufficient. To come within the definition it must be an emotional state produced:

“by stimulating or depressing the person’s central nervous system ….”

So the Committee went on to describe the mechanism which produces the altered emotional state:

“The brain perceives a transient “rush” or “high” as an indirect effect

caused by increased blood flow caused by the dilation of blood vessels in brain and periphery.”

If the brain is not part of a person’s “central nervous system” I don’t know what is. However the effect on the central nervous system, powerful though it might be, should, the Committee said, be regarded as “indirect” and “peripheral.”

“The effects of poppers on blood vessels in the brain should be considered to be “peripheral” as these lie outside the “blood-brain barrier”.

Shimmying effortlessly from pharmacology to statutory interpretation, the Committee then reached what it called a “consensus” view that:

“a psychoactive substance has a direct action on the brain and …

substances having peripheral effects, such as those caused by alkyl nitrites, do not directly stimulate or depress the central nervous system.” [Emphasis added]

As a result, the Committee concluded with swashbuckling confidence, there is no need to exempt poppers from the operation of the Act: they are not psychoactive substances within the meaning of the Act.

The difficulty with this conclusion is that the Committee – despite the eminence of many of its scientific members – is not qualified to interpret the meaning of the Act. It reached its conclusion that poppers are not psychoactive substances by ignoring a pretty basic principle of statutory construction. If the words of a statute are clear (and in fact usually even if they are not) you cannot simply add words, even nice simple words like “direct” or “peripheral,” to make a statute mean what you think it ought to mean.

With just a single legally qualified member it would not be surprising if it got the law wrong. It is well equipped to advise on what drugs policy should be. It cannot possibly offer any authoritative opinion on what the law actually is, and it has badly over-reached itself in trying to do so in this case.

Hundreds of long judgments have been delivered and weighty monographs penned on how to interpret (or “construe”) Acts of Parliament.³ There are all sorts of considerations that can affect the meaning of a statute, and the “obvious” meaning does not always turn out to be the correct one. To take but one striking example familiar to all English lawyers, the word “malicious” in S.20 of the Offences Against the Person Act 1861 does not mean “with malice” as one might expect, it means something more akin to “with foresight of the possible consequences.” In modern times S.3 of the Human Rights Act 1998 has had a profound effect on the interpretation of some legislation (although I can’t see that it could be relevant here):

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

So possibly, with a good lawyer and a sympathetic judge the ACMD’s opinion that we should read S.2 of the Act as though it contained the words “direct” or “peripheral” would carry the day, but it would be what lawyers call a “strained construction” of the language.

For what it’s worth, my view is that it’s not just strained, it’s wrong. The definition, stupid though it may be, is not made any clearer by adding the words “direct” or “peripheral.” In fact they simply add another layer of complication to what is already a fairly tricky concept, which is perhaps one very good reason why the draftsman decided not to include them. If one reads the words of the definition as they appear in the Act, without adding the unnecessary words “direct” or “peripheral,” then poppers fall squarely within the definition of a psychoactive substance, and anyone supplying them is now likely to be committing a serious criminal offence.

The Government however, has decided to accept the Committee’s legal opinion, and published an extraordinary letter from Karen Bradley the Minister for Preventing Exploitation, Abuse and Crime:

“… in common with others, the Government took the view that “poppers” was psychoactive for the purposes of the Act throughout its parliamentary passage.

Having given due consideration, the Government agrees with your advice and interpretation of the definition. We do so in the understanding that “poppers” have these unique indirect effects. Our understanding is that this approach does not have any further implications for the operation of the Act and that other substances that the Act intends to cover are not affected. We remain confident that the psychoactivity of those substances can be established under the definition in the Act. We will ask law enforcement agencies to be guided by our agreement with your advice.”

So, despite (no doubt after careful advice from Parliamentary draftsmen, who tend to know about these things) promoting legislation which it believed applied to poppers “throughout its Parliamentary passage,” the Government has now accepted an interpretation of that legislation, not by judges, or even lawyers, but by a Committee largely made up of pharmacologists which says the opposite.

Where this leaves other substances that may have different “indirect” effects on the central nervous system is anybody’s guess. Nevertheless the Government has asked law enforcement agencies to be guided by this incoherent and incomprehensible agreement.

HOW DO YOU PROVE A SUBSTANCE IS PSYCHOACTIVE?

This brings us to yet another problem with the Act: how are those law enforcement agencies going to prove in any given case that some grey powder seized from a sleazy man’s rectum is a psychoactive substance, and what’s more that it is “directly” and not just “peripherally” psychoactive?

The main justification for the Act is that chemists (mainly those clever Chinese) were producing new substances faster than the Government could classify them as controlled drugs. Even though a drug could become controlled (into class A, B or C) at the stroke of a ministerial pen, this did not cover drugs that had not been encountered before. Under the Brave New World that arrived on 26^th May a substance does not need to be classified as a controlled drug; providing it is psychoactive it is a crime to supply it.

This places an extra strain on hard pressed forensic science services. When a suspicious substance is found it will be sent to a laboratory. Scientists will no doubt be able to analyse it and determine its chemical constituents. If it is a controlled drug there is no problem; if it is a drug which has long been known to be [directly?] psychoactive there is no problem, although presumably in such a case it would have been a relatively simple matter to classify it in the old-fashioned way anyway.

But what if it is a new substance that hasn’t been seen before, the type of substance that the Act is actually aimed at?

In such a case the prosecution will have to prove that it has the capability –and if the ACMD is correct by means of a direct (and not a peripheral) action on the central nervous system – of producing an effect on a person’s mental functioning or emotional state.

The obvious way of proving that is to conduct an experiment on a person. Or rather, to be absolutely sure because random results can mislead, and because the scientific method demands it, to conduct a number of experiments on a number of persons.

Do I hear you all shouting at once? You can’t all want to perform the public service of seeing what happens if you eat the contents of that cling-film package so conscientiously pulled out by prison officers from a drug addict’s anus? No?

Even if the scientists can find people to experiment on, I’m not sure that they’ll get it past their University ethics committee; and even if they were to overcome these problems, the results are liable to be subjective in the extreme. It’s all very well if the substance reduces the guinea-pig to a state of gibbering incoherence (“mental functioning”), but what if it just produces a warm and pleasant glow of well-being, like a small Scotch after a day’s deer-stalking in the Cuillin Hills (“emotional state”)?

Alert as always to problems like this, the Government has thought up a solution. It has a “Psychoactive Substances Forensic Strategy.”

There will, it says, be no need for human guinea pigs. Instead:

A commercial supplier has been contracted to perform the testing for a range of Certified Drug Reference Standards (CDRS) of substances detected in the UK in the last year.

CDRSs are pure samples of a drug which are already used to identity a drug or its chemical structure in law enforcement seizures. These (rather than case samples) will now be tested in the in-vitro testing. If the CDRS is shown to be psychoactive, the FSP (Forensic Science Provider) will only need to identify the substance chemically and the results from the in-vitro testing can be applied for each case. The FSP can then report the results to the law enforcement agency within normal timeframes.

A central agency will test pure samples of drugs (“CDSRs”) in a laboratory to see whether they are psychoactive. The ordinary forensic scientists’ job will be limited, as it is at present, to identifying the chemical constituents of a substance seized. If it matches a psychoactive CDSR that will be sufficient.

I am no scientist, but it seems dangerous to assume that a drug which appears to be psychoactive in laboratory conditions will necessarily be so in the human body. The history of medical research is littered with substances that appeared to have some promising effect in the test tube, only to have a quite different effect when tried in the human body. If there is even a small doubt that the in vitro test might give a false positive then the system collapses.

It so happens that the ACMD – the majority of whom are distinguished scientists – made precisely that point in a letter to Theresa May last July.

“Determining Psychoactivity

I would like to reiterate that psychoactivity in humans cannot be definitively established in many cases in a way that would definitely stand up in a court of law where a high threshold of evidence is required. There is currently no way to define psychoactivity through a biochemical test, therefore there is no guarantee of proving psychoactivity in a court of law. The only definitive way of determining psychoactivity is via human experience, which is usually not documented.” [Emphasis added]

The ACMD offered to help in the design of biochemical tests designed to prove if a substance was “likely” to be psychoactive, while emphasising that such tests could not be conclusive.

In a criminal case proof that a substance is likely to be psychoactive is neither here nor there. A criminal conviction requires “definitive” proof. Nowhere in the Forensic Strategy is there any acknowledgement of this rather important point.

Anyway, since the Psychoactive Substances Forensic Strategy relies on maintaining what is in effect a register of substances proven to be psychoactive, it is hard to see how the system is much of an improvement on the old system of simply controlling dangerous drugs by ministerial fiat as soon as they are identified. Nimble Chinese chemists may still be able to produce new psychoactive drugs more quickly than law enforcement chemists can test them.

A TERRIBLE LAW

This really is a terrible law.

It is astonishing that even now it is completely unclear what substances are banned and what are not.

It is remarkable that the Government has relied on the ACMD’s advice on statutory interpretation (in respect of which it had no expertise), yet ignored its advice on the impossibility of devising a definitive in vitro test for psychoactivity (in respect of which it had enormous expertise).

It is depressing that the Government appears to have learnt virtually nothing from the Irish experience.

The Act will probably lead to more drugs related deaths, and it will certainly produce more business opportunities for criminals. Like many bad laws it sailed through Parliament with support from almost everyone. It is a great shame that nobody listened to Paul Flynn, one of the few MPs to have opposed it. Speaking in the House of Commons on January 20^th 2016 he summed it up in a few words:

Evidence-free and prejudice-rich, this Bill will do harm. It is evidence-free because the House has ignored the evidence of the countries that have taken this step before and have increased drug use. … By banning a drug, we make it more attractive, drive it underground, increase the prices, and have more irresponsible people selling it.

It is the shared foolishness of the House to believe that prohibition works. It does not: it makes things worse. Drugs will not be controlled by this Bill just as they are not controlled in our prisons, where there is illegal drug use in every single one. This is a foolish Bill based on prejudice and not on evidence.