Rudi Fortson K.C.

The Home Office has published a commendably detailed review into the operation of the Psychoactive Substances Act 2016 since it came into force on 26 May 2016 [Link].  Its conclusions (only summarised below, p.69) are:

1. To put an end to the open sale of NPS: This appears to have been achieved although the main source of supply for NPS “is now likely to be street dealers, particularly for synthetic cannabinoids.”
2. To put an end to the game of ‘cat and mouse’.  This does not appear to have been achieved (based on a small number of observations from the Forensic Early Warning System).  “Novel drugs which are not controlled under the MDA have continued to emerge”.
3. To reduce the number of people using NPS.  This appears to have been achieved for the general adult population, “with a significant reduction in NPS use since the Act, particularly among young adults”.  However, what has not changed significantly is the use of nitrous oxide among adults and the use of NPS among children.  As for NPS use among vulnerable users, including the homeless, the evidence “is mixed” with “some displacement from synthetic cannabinoids to ‘traditional’ controlled drugs”.  In prisons, “the PSA does not appear to have restricted the prevalence of NPS, with use of synthetic cannabinoids in particular appearing to have increased since the Act was introduced”.
4. To reduce the various health and social harms associated with NPS. “This appears to have been achieved in the main, although there are some specific areas of concern…. [W]hile there has been a reduction in NPS-related deaths across England and Wales, there has been a considerable increase in Scotland since the Act has been introduced”.

The Review states that the decisions of the Court of Appeal in R v Chapman [2017] EWCA Crim 319, and R v Rochester [2018] EWCA Crim 1936, are “binding” (p.4, p.14).  However, care must be taken when determining the points of legal principle that are truly “binding”.  In Rochester, the Court made it clear that whether something is capable of producing a psychoactive effect “is a question of fact, no doubt sometimes assisted by expert evidence” [para.19; emphasis added].  The legal principle, which is ‘binding’, is that “section 2 of the 2016 Act does not distinguish between direct and indirect effect when it defines a psychoactive substance as one which produces a psychoactive effect” [para.25; emphasis added].  The potential implications of this decision extend beyond cases of nitrous oxide presented in canisters for catering use.

BCL Solicitors, David Hardstaff and Daniel Jackson, have raised an important issue in relation to the Proceeds of Crime Act 2002 (POCA), anti-money laundering (AML), and the re-scheduling of cannabis based medicinal products for human use (https://www.bcl.com/a-green-light-for-business/).  Others have also done so.
The problem arises in relation to the definition of “criminal conduct” in s.340(2) POCA, namely, conduct which “(a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there” [emphasis added].
A money laundering offence under ss.327-329 POCA is not committed if a person “(a) …knows, or believes on reasonable grounds, that the relevant criminal conduct occurred in a particular country or territory outside the United Kingdom, and (b) the relevant criminal conduct (i) was not, at the time it occurred, unlawful under the criminal law then applying in that country or territory, and (ii) is not of a description prescribed by an order made by the Secretary of State”.  However, the Proceeds of Crime Act 2002 (Money Laundering: Exceptions to Overseas Conduct Defence) Order 2006, provides limited protection.
It would be a harsh result if a person fell foul of the money laundering provisions when handling, in the UK, money obtained by a reputable pharmaceutical company from the manufacture overseas (and under licence there) of a drug which, in the UK, is a “controlled drug” (MDA 1971) and not licenced for production in the UK.  Can this result be avoided?  It may not be tenable to say that because the company had acted under licence overseas, the same “conduct”, “if it occurred [in the UK]” (i.e., licensed production), would therefore not constitute an offence.  This would be to treat the grant or absence of a licence as a circumstance of the “conduct”.  If this were held to be sufficient to escape liability, then the outcome would (arguably) be more generous than the limited exception granted by the 2006 Order.  In any event, as the writers point out, a “‘like for like’ comparison of the UK’s controlled drug licensing regime with that of another country is unlikely to be straightforward”.  Perhaps the most satisfactory answer is to amend the 2006 Order and provide a wider exception or range of exceptions.

See also my post re the regulations in respect of CBMPs [Link]