Psychoactive Substances Act 2016

Introductory

1 Overview

(1) This Act contains provision about psychoactive substances.

(2) Section 2 defines what is meant by a “psychoactive substance”.

(3) Sections 4 to 10 contain provision about offences relating to psychoactive substances.

(4) Section 11 provides for exceptions to those offences.

(5) Sections 12 to 35 contain powers for dealing with prohibited activities in respect of psychoactive substances, in particular powers to give prohibition notices and make prohibition orders.

(6) Sections 36 to 54 contain enforcement powers.

Psychoactive substances

2 Meaning of “psychoactive substance” etc

(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.

(3) For the purposes of this Act a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way.

3 Exempted substances

(1) In this Act “exempted substance” means a substance listed in Schedule 1.

(2) The Secretary of State may by regulations amend Schedule 1 in order to—

(a) add or vary any description of substance;

(b) remove any description of substance added under paragraph (a).

(3) Before making any regulations under this section the Secretary of State must consult—

(a) the Advisory Council on the Misuse of Drugs, and

(b) such other persons as the Secretary of State considers appropriate.

(4) The power to make regulations under this section is exercisable by statutory instrument.

(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Offences

4 Producing a psychoactive substance

(1) A person commits an offence if—

(a) the person intentionally produces a psychoactive substance,

(b) the person knows or suspects that the substance is a psychoactive substance, and

(c) the person—

(i) intends to consume the psychoactive substance for its psychoactive effects, or

(ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

(2) This section is subject to section 11 (exceptions to offences).

5 Supplying, or offering to supply, a psychoactive substance

(1) A person commits an offence if—

(a) the person intentionally supplies a substance to another person,

(b) the substance is a psychoactive substance,

(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and

(d) the person knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effects.

(2) A person (“P”) commits an offence if—

(a) P offers to supply a psychoactive substance to another person (“R”), and

(b) P knows or is reckless as to whether R, or some other person, would, if P supplied a substance to R in accordance with the offer, be likely to consume the substance for its psychoactive effects.

(3) For the purposes of subsection (2)(b), the reference to a substance’s psychoactive effects includes a reference to the psychoactive effects which the substance would have if it were the substance which P had offered to supply to R.

(4) This section is subject to section 11 (exceptions to offences).

6 Aggravation of offence under section 5

(1) This section applies if—

(a) a court is considering the seriousness of an offence under section 5, and

(b) at the time the offence was committed the offender was aged 18 or over.

(2) If condition A, B or C is met the court—

(a) must treat the fact that the condition is met as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and

(b) must state in open court that the offence is so aggravated.

(3) Condition A is that the offence was committed on or in the vicinity of school premises at a relevant time.

(4) For the purposes of subsection (3) a “relevant time” is—

(a) any time when the school premises are in use by persons under the age of 18;

(b) one hour before the start and one hour after the end of any such time.

(5) In this section—

• “school premises” means land used for the purposes of a school, other than any land occupied solely as a dwelling by a person employed at the school;

• “school” has the same meaning—

  (a)

  in England and Wales, as in section 4 of the Education Act 1996;

  (b)

  in Scotland, as in section 135(1) of the Education (Scotland) Act 1980;

  (c)

  in Northern Ireland, as in Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3)).

(6) Condition B is that in connection with the commission of the offence the offender used a courier who, at the time the offence was committed, was under the age of 18.

(7) For the purposes of subsection (6) a person (“P”) uses a courier in connection with an offence under section 5 if P causes or permits another person (the courier)—

(a) to deliver a substance to a third person, or

(b) to deliver a drug-related consideration to P or a third person.

(8) A drug-related consideration is a consideration of any description which—

(a) is obtained in connection with the supply of a psychoactive substance, or

(b) is intended to be used in connection with obtaining a psychoactive substance.

(9) Condition C is that the offence was committed in a custodial institution.

(10) In this section—

• “custodial institution” means any of the following—

  (a)

  a prison;

  (b)

  a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;

  (c)

  a removal centre, a short-term holding facility or pre-departure accommodation;

  (d)

  service custody premises;

• “removal centre”, “short-term holding facility” and “pre-departure accommodation” have the meaning given by section 147 of the Immigration and Asylum Act 1999;

• “service custody premises” has the meaning given by section 300(7) of the Armed Forces Act 2006.

7 Possession of psychoactive substance with intent to supply

(1) A person commits an offence if—

(a) the person is in possession of a psychoactive substance,

(b) the person knows or suspects that the substance is a psychoactive substance, and

(c) the person intends to supply the psychoactive substance to another person for its consumption, whether by any person to whom it is supplied or by some other person, for its psychoactive effects.

(2) This section is subject to section 11 (exceptions to offences).

8 Importing or exporting a psychoactive substance

(1) A person commits an offence if—

(a) the person intentionally imports a substance,

(b) the substance is a psychoactive substance,

(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and

(d) the person—

(i) intends to consume the psychoactive substance for its psychoactive effects, or

(ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

(2) A person commits an offence if—

(a) the person intentionally exports a substance,

(b) the substance is a psychoactive substance,

(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and

(d) the person—

(i) intends to consume the psychoactive substance for its psychoactive effects, or

(ii) knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.

(3) In a case where a person imports or exports a controlled drug suspecting it to be a psychoactive substance, the person is to be treated for the purposes of this section as if the person had imported or exported a psychoactive substance suspecting it to be such a substance.

In this subsection “controlled drug” has the same meaning as in the Misuse of Drugs Act 1971.

(4) Section 5 of the Customs and Excise Management Act 1979 (time of importation, exportation, etc) applies for the purposes of this section as it applies for the purposes of that Act.

(5) This section is subject to section 11 (exceptions to offences).

9 Possession of a psychoactive substance in a custodial institution

(1) A person commits an offence if—

(a) the person is in possession of a psychoactive substance in a custodial institution,

(b) the person knows or suspects that the substance is a psychoactive substance, and

(c) the person intends to consume the psychoactive substance for its psychoactive effects.

(2) In this section “custodial institution” has the same meaning as in section 6.

(3) This section is subject to section 11 (exceptions to offences).

10 Penalties

(1) A person guilty of an offence under any of sections 4 to 8 is liable—

(a) on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or

(ii) to a fine,

or both;

(b) on summary conviction in Scotland—

(i) to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(d) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine, or both.

(2) A person guilty of an offence under section 9 is liable—

(a) on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or

(ii) to a fine,

or both;

(b) on summary conviction in Scotland—

(i) to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.

11 Exceptions to offences

(1) It is not an offence under this Act for a person to carry on any activity listed in subsection (3) if, in the circumstances in which it is carried on by that person, the activity is an exempted activity.

(2) In this section “exempted activity” means an activity listed in Schedule 2.

(3) The activities referred to in subsection (1) are—

(a) producing a psychoactive substance;

(b) supplying such a substance;

(c) offering to supply such a substance;

(d) possessing such a substance with intent to supply it;

(e) importing or exporting such a substance;

(f) possessing such a substance in a custodial institution (within the meaning of section 9).

(4) The Secretary of State may by regulations amend Schedule 2 in order to—

(a) add or vary any description of activity;

(b) remove any description of activity added under paragraph (a).

(5) Before making any regulations under this section the Secretary of State must consult—

(a) the Advisory Council on the Misuse of Drugs, and

(b) such other persons as the Secretary of State considers appropriate.

(6) The power to make regulations under this section is exercisable by statutory instrument.

(7) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Powers for dealing with prohibited activities

12 Meaning of “prohibited activity”

(1) In this Act “prohibited activity” means any of the following activities—

(a) producing a psychoactive substance that is likely to be consumed by individuals for its psychoactive effects;

(b) supplying such a substance;

(c) offering to supply such a substance;

(d) importing such a substance;

(e) exporting such a substance;

(f) assisting or encouraging the carrying on of a prohibited activity listed in any of paragraphs (a) to (e).

(2) The carrying on by a person of an activity listed in any of paragraphs (a) to (e) of subsection (1) is not the carrying on of a prohibited activity if the carrying on of the activity by that person would not be an offence under this Act by virtue of section 11.

13 Prohibition notices

(1) A senior officer or a local authority may give a prohibition notice to a person if conditions A and B are met.

(2) A prohibition notice is a notice that requires the person to whom it is given not to carry on any prohibited activity or a prohibited activity of a description specified in the notice.

(3) Condition A is that the senior officer or local authority reasonably believes that the person is carrying on, or is likely to carry on, a prohibited activity.

(4) Condition B is that the senior officer or local authority reasonably believes that it is necessary and proportionate to give the prohibition notice for the purpose of preventing the person from carrying on any prohibited activity.

(5) A prohibition notice may not be given—

(a) in England and Wales or Northern Ireland, to an individual who is under the age of 10, or

(b) in Scotland, to an individual who is under the age of 12.

(6) A prohibition notice given to an individual who is under the age of 18—

(a) must specify the period for which it has effect, and

(b) may not have effect for more than 3 years.

(7) In this Act “senior officer” means—

(a) a constable of at least the rank of inspector;

(b) a designated NCA officer of grade 3 or above;

(c) a general customs official of at least the grade of higher officer.

14 Premises notices

(1) A senior officer or a local authority may give a premises notice to a person if conditions A and B are met.

(2) A premises notice is a notice that requires the person to whom it is given to take all reasonable steps to prevent any prohibited activity, or a prohibited activity of a description specified in the notice, from being carried on at any premises specified in the notice that are owned, leased, occupied, controlled or operated by the person.

(3) Condition A is that—

(a) the senior officer or local authority reasonably believes that a prohibited activity is being, or is likely to be, carried on at particular premises, and

(b) the person owns, leases, occupies, controls or operates the premises.

(4) Condition B is that the senior officer or local authority reasonably believes that it is necessary and proportionate to give the premises notice for the purpose of preventing any prohibited activity from being carried on at any premises owned, leased, occupied, controlled or operated by the person.

(5) A premises notice may not be given to an individual who is under the age of 18.

(6) For the purposes of this section a person (other than a mortgagee not in possession) “owns” premises in England and Wales or Northern Ireland if—

(a) the person is entitled to dispose of the fee simple in the premises, whether in possession or reversion, or

(b) the person holds or is entitled to the rents and profits of the premises under a lease that (when granted) was for a term of not less than 3 years.

(7) For the meaning of “senior officer”, see section 13(7).

15 Prohibition notices and premises notices: supplementary

(1) This section applies to the giving of prohibition notices and premises notices.

(2) A notice must—

(a) set out the grounds for giving the notice;

(b) explain the possible consequences of not complying with the notice.

(3) A notice may be withdrawn by a notice to that effect given by—

(a) where the notice was given by a senior officer, that officer or another senior officer acting on behalf of the same person as that officer;

(b) where the notice was given by a local authority, that local authority.

(4) The withdrawal of a notice does not prevent the giving of a further notice to the same person.

(5) For the meaning of “senior officer”, see section 13(7).

16 Further provision about giving notices under sections 13 to 15

(1) This section applies to the giving of notices under sections 13 to 15.

(2) A notice takes effect when it is given.

(3) A notice may be given to a person by—

(a) handing it to the person,

(b) leaving it at the person’s proper address,

(c) sending it by post to the person at that address, or

(d) subject to subsection (9), sending it to the person by electronic means.

(4) A notice to a body corporate may be given to the secretary or clerk of that body.

(5) A notice to a partnership may be given to a partner or a person who has the control or management of the partnership business.

(6) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of a person is—

(a) in the case of a body corporate or its secretary or clerk, the address of the body’s registered or principal office;

(b) in the case of a partnership, a partner or a person having the control or management of the partnership business, the address of the principal office of the partnership;

(c) in any other case, the person’s last known address.

(7) For the purposes of subsection (6) the principal office of a company registered outside the United Kingdom, or of a partnership carrying on business outside the United Kingdom, is its principal office within the United Kingdom.

(8) If a person has specified an address in the United Kingdom, other than the person’s proper address within the meaning of subsection (6), as the one at which the person or someone on the person’s behalf will accept notices of the same description as a notice under section 13, 14 or 15 (as the case may be), that address is also treated for the purposes of this section and section 7 of the Interpretation Act 1978 as the person’s proper address.

(9) A notice may be sent to a person by electronic means only if—

(a) the person has indicated that notices of the same description as a notice under section 13, 14 or 15 (as the case may be) may be given to the person by being sent to an electronic address and in an electronic form specified for that purpose, and

(b) the notice is sent to that address in that form.

(10) A notice sent to a person by electronic means is, unless the contrary is proved, to be treated as having been given at 9 am on the working day immediately following the day on which it was sent.

(11) In this section—

• “electronic address” means any number or address used for the purposes of sending or receiving documents or information by electronic means;

• “working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

17 Meaning of “prohibition order”

(1) In this Act a “prohibition order” means an order prohibiting the person against whom it is made from carrying on any prohibited activity or a prohibited activity of a description specified in the order.

(2) A prohibition order may be made—

(a) on application (see section 18), or

(b) following conviction of an offence under any of sections 4 to 8 or a related offence (see section 19).

(3) For the meaning of “prohibited activity”, see section 12.

18 Prohibition orders on application

(1) The appropriate court may make a prohibition order under this section against a person if—

(a) condition A or B is met, and

(b) condition C is met.

(2) Condition A is that the court is satisfied on the balance of probabilities that the person has failed to comply with a prohibition notice.

(3) Condition B is that, where no prohibition notice has been given (or one was given but has been withdrawn)—

(a) the court is satisfied on the balance of probabilities that the person is carrying on, or is likely to carry on, a prohibited activity, and

(b) the court considers that the person would fail to comply with a prohibition notice if given.

(4) Condition C is that the court considers it necessary and proportionate to make the prohibition order for the purpose of preventing the person from carrying on any prohibited activity.

(5) If a court makes a prohibition order under this section based on condition A having been met, the prohibition notice is to be treated as having been withdrawn.

(6) A prohibition order under this section may not be made—

(a) in England and Wales or Northern Ireland, against an individual who is under the age of 10, or

(b) in Scotland, against an individual who is under the age of 12.

(7) A prohibition order under this section made against an individual who is under the age of 18 at the time the order is made—

(a) must specify the period for which it has effect, and

(b) may not have effect for more than 3 years.

(8) A prohibition order under this section may be made only on an application made in accordance with section 21.

(9) In this section “the appropriate court” means—

(a) in relation to England and Wales—

(i) where the person in respect of whom the application is made is an individual who is under the age of 18, a youth court, and

(ii) in any other case, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland—

(i) where the person in respect of whom the application is made is an individual who is under the age of 18, a youth court, and

(ii) in any other case, a court of summary jurisdiction.

19 Prohibition orders following conviction

(1) Where a court is dealing with a person who has been convicted of a relevant offence, the court may make a prohibition order under this section if the court considers it necessary and proportionate for the purpose of preventing the person from carrying on any prohibited activity.

(2) A prohibition order may not be made under this section except—

(a) in addition to a sentence imposed in respect of the offence concerned, or

(b) in addition to an order discharging the person conditionally or, in Scotland, discharging the person absolutely.

(3) If a court makes a prohibition order under this section, any prohibition notice that has previously been given to the person against whom the order is made is to be treated as having been withdrawn.

(4) A prohibition order under this section made against an individual who is under the age of 18 at the time the order is made—

(a) must specify the period for which it has effect, and

(b) may not have effect for more than 3 years.

(5) In this section “relevant offence” means—

(a) an offence under any of sections 4 to 8;

(b) an offence of attempting or conspiring to commit an offence under any of sections 4 to 8;

(c) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence under any of sections 4 to 8;

(d) an offence of inciting a person to commit an offence under any of sections 4 to 8;

(e) an offence of aiding, abetting, counselling or procuring the commission of an offence under any of sections 4 to 8.

20 Premises orders

(1) The appropriate court may make a premises order against a person if—

(a) condition A or B is met, and

(b) condition C is met.

(2) A premises order is an order that requires the person against whom it is made to take all reasonable steps to prevent any prohibited activity, or a prohibited activity of a description specified in the order, from being carried on at any premises specified in the order that are owned, leased, occupied, controlled or operated by the person.

(3) Condition A is that the court is satisfied on the balance of probabilities that the person has failed to comply with a premises notice.

(4) Condition B is that, where no premises notice has been given (or one was given but has been withdrawn)—

(a) the court is satisfied on the balance of probabilities that a prohibited activity is being, or is likely to be, carried on at particular premises,

(b) the person owns, leases, occupies, controls or operates the premises, and

(c) the court considers that the person would fail to comply with a premises notice if given.

(5) Condition C is that the court considers it necessary and proportionate to make the premises order for the purpose of preventing any prohibited activity from being carried on at any premises owned, leased, occupied, controlled or operated by the person.

(6) If a court makes a premises order based on condition A having been met, the premises notice is to be treated as having been withdrawn.

(7) A premises order may not be made against an individual who is under the age of 18.

(8) A premises order may be made only on an application made in accordance with section 21.

(9) In this section the “appropriate court” means—

(a) in relation to England and Wales, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland, a court of summary jurisdiction.

(10) Subsection (6) of section 14 (when a person “owns” premises) applies for the purposes of this section as it applies for the purposes of that section.

21 Applications for prohibition orders and premises orders

(1) An application for a prohibition order under section 18 or a premises order may be made—

(a) in England and Wales, by the chief officer of police for a police area,

(b) in Scotland, by the chief constable of the Police Service of Scotland,

(c) in Northern Ireland, by the chief constable of the Police Service of Northern Ireland,

(d) in England and Wales or Scotland, by the chief constable of the British Transport Police Force,

(e) by the Director General of the National Crime Agency,

(f) by the Secretary of State by whom general customs functions are exercisable, or

(g) by a local authority.

This is subject to subsection (2).

(2) Where an application is made based on a failure to comply with a prohibition notice or a premises notice (as the case may be), the application must be made—

(a) where the notice was given by a constable, by the chief officer of police or chief constable (as the case may be) of the police force of which the constable was a member when the notice was given;

(b) where the notice was given by a designated NCA officer, by the Director General of the National Crime Agency;

(c) where the notice was given by a general customs official, by the Secretary of State by whom general customs functions are exercisable;

(d) where the notice was given by a local authority, by that local authority.

(3) An application for a prohibition order under section 18 or a premises order is—

(a) in England and Wales, to be made by complaint;

(b) in Northern Ireland, to be made by complaint under Part 8 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)).

22 Provision that may be made by prohibition orders and premises orders

(1) A court making a prohibition order or a premises order, or a court varying such an order under or by virtue of any of sections 28 to 31, may by the order impose any prohibitions, restrictions or requirements that the court considers appropriate (in addition to the prohibition referred to in section 17(1) or the requirement referred to in section 20(2) (as the case may be)).

(2) Subsections (3) to (6) contain examples of the type of provision that may be made under subsection (1), but they do not limit the type of provision that may be so made.

(3) The prohibitions, restrictions or requirements that may be imposed on a person by a prohibition order or a premises order include prohibitions or restrictions on, or requirements in relation to, the person’s business dealings (including the conduct of the person’s business over the internet).

(4) The requirements that may be imposed on a person by a prohibition order include a requirement to hand over for disposal an item belonging to the person that the court is satisfied—

(a) is a psychoactive substance, or

(b) has been, or is likely to be, used in the carrying on of a prohibited activity.

(5) An item that is handed over in compliance with a requirement imposed by virtue of subsection (4) may not be disposed of—

(a) before the end of the period within which an appeal may be made against the imposition of the requirement (ignoring any power to appeal out of time), or

(b) if such an appeal is made, before it is determined or otherwise dealt with.

(6) The prohibitions that may be imposed on a person by a prohibition order or a premises order include a prohibition prohibiting access to premises owned, occupied, leased, controlled or operated by the person for a specified period (an “access prohibition”).

(7) The period specified under subsection (6) may not exceed 3 months (but see subsections (3) to (5) of section 28).

(8) An access prohibition may prohibit access—

(a) by all persons, or by all persons except those specified, or by all persons except those of a specified description;

(b) at all times, or at all times except those specified;

(c) in all circumstances, or in all circumstances except those specified.

(9) An access prohibition may—

(a) be made in respect of the whole or any part of the premises;

(b) include provision about access to a part of the building or structure of which the premises form part.

(10) In this section “specified” means specified in the prohibition order or the premises order (as the case may be).

(11) Subsection (6) of section 14 (when a person “owns” premises) applies for the purposes of subsection (6) of this section as it applies for the purposes of that section.

23 Enforcement of access prohibitions

(1) An authorised person may—

(a) enter premises in respect of which an access prohibition is in effect (see section 22(6));

(b) do anything necessary to secure the premises against entry.

(2) In this section “authorised person”—

(a) in relation to an access prohibition imposed by a prohibition order under section 18, or a premises order, made on the application of the chief officer of police for a police area, the chief constable of the Police Service of Scotland, the chief constable of the Police Service of Northern Ireland or the chief constable of the British Transport Police Force, means a constable or a person authorised by the chief officer of police or the chief constable (as the case may be) who applied for the order;

(b) in relation to an access prohibition imposed by a prohibition order under section 18, or a premises order, made on the application of the Director General of the National Crime Agency, means a person authorised by the Director General;

(c) in relation to an access prohibition imposed by a prohibition order under section 18, or a premises order, made on the application of the Secretary of State by whom general customs functions are exercisable, means a general customs official or a person authorised by that Secretary of State;

(d) in relation to an access prohibition imposed by a prohibition order under section 18, or a premises order, made on the application of a local authority, means a person authorised by that local authority;

(e) in relation to an access prohibition imposed by a prohibition order under section 19, means a constable, a general customs official or a person authorised by a person listed in subsection (3).

(3) Those persons are—

(a) the chief officer of police for a police area, in the case of an order made in England and Wales;

(b) the chief constable of the Police Service of Scotland, in the case of an order made in Scotland;

(c) the chief constable of the Police Service of Northern Ireland, in the case of an order made in Northern Ireland;

(d) the chief constable of the British Transport Police Force, in the case of an order made in England and Wales or Scotland;

(e) the Director General of the National Crime Agency;

(f) the Secretary of State by whom general customs functions are exercisable.

(4) A person acting under subsection (1) may use reasonable force.

(5) A person seeking to enter premises under subsection (1) must, if required to do so by the occupier of the premises or, where the occupier is not present, by another person appearing to be in charge of the premises—

(a) give his or her name;

(b) if not a constable in uniform, produce documentary evidence that he or she is an authorised person.

(6) An authorised person may also enter premises in respect of which an access prohibition is in effect to carry out essential maintenance or repairs to the premises.

24 Access prohibitions: reimbursement of costs

(1) A person listed in subsection (2) that incurs expenditure for the purpose of clearing, securing or maintaining premises in respect of which an access prohibition is in effect (see section 22(6)) may apply to the court for an order under this section.

(2) Those persons are—

(a) a local policing body;

(b) the Scottish Police Authority;

(c) the chief constable of the Police Service of Northern Ireland;

(d) the British Transport Police Authority;

(e) the Director General of the National Crime Agency;

(f) the Secretary of State by whom general customs functions are exercisable;

(g) a local authority.

(3) On an application under this section the court may make whatever order it considers appropriate for the reimbursement (in full or in part) by the person against whom the order imposing the access prohibition was made of the expenditure mentioned in subsection (1).

(4) An application for an order under this section may not be heard unless it is made before the end of the period of 3 months starting with the day on which the access prohibition ceases to have effect.

(5) An application under this section must be served on the person against whom the order imposing the access prohibition was made.

(6) In this section “the court” means—

(a) in a case where the prohibition order or the premises order imposing the access prohibition was made by a court in England and Wales or Northern Ireland, the court that made the order, except where paragraph (b) or (c) applies;

(b) where the court that made the order was the Court of Appeal, the Crown Court;

(c) where the court that made the order was a youth court but the person against whom the order was made is aged 18 or over at the time of the application, a magistrates’ court or, in Northern Ireland, a court of summary jurisdiction;

(d) in a case where the prohibition order or the premises order imposing the access prohibition was made by a court in Scotland, the sheriff.

25 Access prohibitions: exemption from liability

(1) Neither an authorised person, nor the person under whose direction or control the authorised person acts, is to be liable in damages for anything done, or omitted to be done, by the authorised person in the exercise or purported exercise of a power under section 23.

(2) Subsection (1) does not apply to an act or omission shown to have been in bad faith.

(3) Subsection (1) does not apply so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful by virtue of section 6(1) of the Human Rights Act 1998.

(4) This section does not affect any other exemption from liability (whether at common law or otherwise).

(5) In this section “authorised person” has the same meaning as in section 23.

26 Offence of failing to comply with a prohibition order or premises order

(1) A person against whom a prohibition order or a premises order is made commits an offence by failing to comply with the order.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales—

(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or

(ii) to a fine,

or both;

(b) on summary conviction in Scotland—

(i) to imprisonment for a term not exceeding 12 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(c) on summary conviction in Northern Ireland—

(i) to imprisonment for a term not exceeding 6 months, or

(ii) to a fine not exceeding the statutory maximum,

or both;

(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine, or both.

(3) A person does not commit an offence under this section if—

(a) the person took all reasonable steps to comply with the order, or

(b) there is some other reasonable excuse for the failure to comply.

27 Offence of failing to comply with an access prohibition, etc

(1) This section applies where a prohibition order or a premises order imposes an access prohibition (see section 22(6)).

(2) A person, other than the person against whom the order was made, who without reasonable excuse remains on or enters premises in contravention of the access prohibition commits an offence.

(3) A person who without reasonable excuse obstructs a person acting under section 23(1) commits an offence.

(4) A person guilty of an offence under subsection (2) or (3) is liable—

(a) on summary conviction in England and Wales, to either or both of the following—

(i) imprisonment for a term not exceeding 51 weeks (or 6 months, if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003);

(ii) a fine;

(b) on summary conviction in Scotland, to either or both of the following—

(i) imprisonment for a term not exceeding 12 months;

(ii) a fine not exceeding level 5 on the standard scale;

(c) on summary conviction in Northern Ireland, to either or both of the following—

(i) imprisonment for a term not exceeding 6 months;

(ii) a fine not exceeding level 5 on the standard scale.

28 Variation and discharge on application

(1) The court may vary or discharge a prohibition order or a premises order on the application of—

(a) the person who applied for the order (if any),

(b) the person against whom the order was made, or

(c) any other person who is significantly adversely affected by the order.

(2) Where a prohibition order is made under section 19, the court may also vary or discharge the order on the application of—

(a) in the case of an order made in England and Wales, the chief officer of police for a police area or the chief constable of the British Transport Police Force;

(b) in the case of an order made in Scotland, the Lord Advocate or a procurator fiscal;

(c) in the case of an order made in Northern Ireland, the chief constable of the Police Service of Northern Ireland;

(d) in the case of an order made in England and Wales or Northern Ireland, the Director General of the National Crime Agency;

(e) in the case of an order made in England and Wales or Northern Ireland, the Secretary of State by whom general customs functions are exercisable.

(3) Subsection (4) applies where—

(a) a prohibition order or a premises order imposes an access prohibition (see section 22(6)), and

(b) an application for the variation of the order is made by the person who applied for the order, or by a person mentioned in subsection (2), before the expiry of the period for which the access prohibition has effect.

(4) Where this subsection applies, the court may vary the order by extending (or further extending) the period for which the access prohibition has effect.

(5) The period for which an access prohibition has effect may not be extended so that it has effect for more than 6 months.

(6) In this section “the court” means—

(a) the court that made the order, except where paragraph (b) or (c) applies;

(b) where—

(i) the order was made under section 19 on an appeal in relation to a person’s conviction or sentence for an offence, or

(ii) the order was made by a court under that section against a person committed or remitted to that court for sentencing for an offence,

the court by or before which the person was convicted (but see subsection (7));

(c) where the court that made the order was a youth court but the person against whom the order was made is aged 18 or over at the time of the application, a magistrates’ court or, in Northern Ireland, a court of summary jurisdiction.

(7) Where the person mentioned in subsection (6)(b)—

(a) was convicted by a youth court, but

(b) is aged 18 or over at the time of the application,

the reference in subsection (6)(b) to the court by or before which the person was convicted is to be read as a reference to a magistrates’ court or, in Northern Ireland, a court of summary jurisdiction.

(8) An order that has been varied under this section remains an order of the court that first made it for the purposes of—

(a) section 24;

(b) any further application under this section.

29 Variation following conviction

(1) This section applies where—

(a) a court is dealing with a person who has been convicted of a relevant offence and against whom a prohibition order or a premises order has previously been made, or

(b) a court is dealing with a person who has been convicted of an offence under section 26 of failing to comply with a prohibition order or a premises order.

(2) The court may vary the prohibition order or (as the case may be) the premises order.

(3) An order that has been varied under subsection (2) remains an order of the court that first made it for the purposes of sections 24 and 28.

(4) An order may not be varied under this section except—

(a) in addition to a sentence imposed in respect of the offence concerned, or

(b) in addition to an order discharging the person conditionally or, in Scotland, discharging the person absolutely.

(5) In this section “relevant offence” has the same meaning as in section 19.

30 Appeals against making of prohibition orders and premises orders

Orders made under section 18 or 20

(1) A person against whom a prohibition order under section 18 or a premises order is made by a court specified in the first column of the table may appeal against the making of the order to the court specified in the corresponding entry in the second column of the table—

Court that made order	Court to which appeal lies
Youth court in England and Wales	Crown Court
Magistrates’ court
Sheriff	Sheriff Appeal Court
Youth court in Northern Ireland	County Court
Court of summary jurisdiction

(2) An appeal under subsection (1) against the making of an order must be made before the end of the period of 28 days starting with the date of the order.

(3) On an appeal under subsection (1) the court hearing the appeal may by order affirm, vary or revoke the order, and may also make such incidental or consequential orders as appear to it to be just.

(4) An order that has been affirmed or varied under subsection (3) remains an order of the court that first made it for the purposes of sections 24 and 28.

Orders made under section 19

(5) A person against whom a prohibition order is made under section 19 may appeal against the making of the order as if it were a sentence passed on the person for the offence referred to in section 19(1) (to the extent it would not otherwise be so appealable).

31 Appeals about variation and discharge

Decisions under section 28

(1) An appeal may be made against a decision under section 28 of a court specified in the first column of the table to the court specified in the corresponding entry in the second column of the table—

Court that made section 28 decision	Court to which appeal lies
Youth court in England and Wales	Crown Court
Magistrates’ court
Sheriff	High Court of Justiciary sitting as the Court of Criminal Appeal, in a case where the relevant order was made under section 19 and the person against whom it was made had been convicted in proceedings on indictment
	Sheriff Appeal Court, in any other case
Youth court in Northern Ireland	County Court
Court of summary jurisdiction
Crown Court	Court of Appeal
High Court of Justiciary	High Court of Justiciary sitting as the Court of Criminal Appeal

(2) The right of appeal under subsection (1) is exercisable by—

(a) the person against whom the relevant order was made, and

(b) any other person who is significantly adversely affected by that order.

(3) In subsections (1) and (2) the “relevant order” means the order that was the subject of the application under section 28.

(4) An appeal under subsection (1) against the making of a decision must be made before the end of the period of 28 days starting with the date of the decision.

(5) On an appeal under subsection (1) the court hearing the appeal may (to the extent it would not otherwise have power to do so) make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.

(6) A prohibition order or a premises order that has been varied by virtue of subsection (5) remains an order of the court that first made it for the purposes of sections 24 and 28.

Decisions under section 29

(7) A person against whom a prohibition order or a premises order has been made may appeal against a variation of the order under section 29 as if the varied order were a sentence passed on the person for the offence referred to in section 29(1) (to the extent it would not otherwise be so appealable).

32 Nature of proceedings under sections 19 and 29, etc

(1) Proceedings before a court arising by virtue of section 19 or 29 are civil proceedings (like court proceedings under section 18, 20 or 28).

(2) The standard of proof to be applied by the court in the proceedings is the balance of probabilities.

(3) The court is not restricted in the proceedings to considering evidence that would have been admissible in the criminal proceedings in which the person concerned was convicted.

(4) The court may adjourn any proceedings arising by virtue of section 19 or 29 even after sentencing the person concerned.

(5) An Act of Adjournal under section 305 of the Criminal Procedure (Scotland) Act 1995 (Acts of Adjournal) may be made in relation to proceedings before the High Court of Justiciary, the sheriff or the Sheriff Appeal Court—

(a) arising by virtue of section 19 or 29;

(b) under section 28, where the application relates to a prohibition order made under section 19;

(c) under section 30(5);

(d) under subsection (1) of section 31, where the relevant order (as defined in subsection (3) of that section) was made under section 19;

(e) under section 31(7).

(6) A prohibition order may be made or varied as mentioned in section 19(2)(b) or 29(4)(b) (as the case may be) in spite of anything in the following provisions (which relate to orders discharging a person conditionally or absolutely and their effect)—

(a) sections 12 and 14 of the Powers of Criminal Courts (Sentencing) Act 2000;

(b) sections 246 and 247 of the Criminal Procedure (Scotland) Act 1995;

(c) Articles 4 and 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)).

33 Special measures for witnesses: England and Wales

(1) Chapter 1 of Part 2 of the Youth Justice and Criminal Evidence Act 1999 (special measures directions in the case of vulnerable and intimidated witnesses) applies to relevant proceedings under this Act as it applies to criminal proceedings, but with—

(a) the omission of the provisions of that Act mentioned in subsection (2) (which make provision only in the context of criminal proceedings), and

(b) any other necessary modifications.

(2) The provisions are—

(a) section 17(4) to (7);

(b) section 21(4C)(e);

(c) section 22A;

(d) section 32.

(3) Rules of court made under or for the purposes of Chapter 1 of Part 2 of that Act apply to relevant proceedings under this Act—

(a) to the extent provided by rules of court, and

(b) subject to any modifications provided by rules of court.

(4) Section 47 of that Act (restrictions on reporting special measures directions etc.) applies with any necessary modifications—

(a) to a direction under section 19 of that Act as applied by this section;

(b) to a direction discharging or varying such a direction.

Sections 49 and 51 of that Act (offences) apply accordingly.

(5) In this section “relevant proceedings under this Act” means—

(a) proceedings in England and Wales under section 18, 20, 28, 30 or 31, and

(b) proceedings in England and Wales arising by virtue of section 19 or 29.

34 Special measures for witnesses: Northern Ireland

(1) Part 2 of the Criminal Evidence (Northern Ireland) Order 1999 (S.I. 1999/2789 (N.I. 8)) (special measures directions in the case of vulnerable and intimidated witnesses) applies to relevant proceedings under this Act as it applies to criminal proceedings, but with—

(a) the omission of the provisions of the Order of 1999 mentioned in subsection (2) (which make provision only in the context of criminal proceedings), and

(b) any other necessary modifications.

(2) The provisions are—

(a) Article 5(4);

(b) Article 9(4C)(e);

(c) Article 10A;

(d) Article 20.

(3) Rules of court made under or for the purposes of Part 2 of the Order of 1999 apply to relevant proceedings under this Act—

(a) to the extent provided by rules of court, and

(b) subject to any modifications provided by rules of court.

(4) Section 47 of the Youth Justice and Criminal Evidence Act 1999 (restrictions on reporting special measures directions etc.) applies with any necessary modifications—

(a) to a direction under Article 7 of the Order of 1999 as applied by this section;

(b) to a direction discharging or varying such a direction.

Sections 49 and 51 of that Act (offences) apply accordingly.

(5) In this section “relevant proceedings under this Act” means—

(a) proceedings in Northern Ireland under section 18, 20, 28, 30 or 31, and

(b) proceedings in Northern Ireland arising by virtue of section 19 or 29.

35 Transfer of proceedings from youth court

(1) This section applies where—

(a) an individual against whom a prohibition order is sought reaches the age of 18 while proceedings before a youth court for the making of the order are ongoing;

(b) an individual against whom a prohibition order has been made reaches the age of 18 while proceedings before a youth court for the variation or discharge of the order are ongoing;

(c) an individual against whom a prohibition order imposing an access prohibition has been made reaches the age of 18 while proceedings before a youth court under section 24 are ongoing.

(2) Rules of court may provide for the transfer of the proceedings from the youth court to—

(a) in England and Wales, a magistrates’ court;

(b) in Northern Ireland, a court of summary jurisdiction.

(3) Rules of court may prescribe circumstances in which the proceedings may or must remain in the youth court.

Powers of entry, search and seizure

36 Power to stop and search persons

(1) This section applies where a police or customs officer has reasonable grounds to suspect that a person has committed, or is likely to commit, an offence under any of sections 4 to 9 or section 26.

(2) The officer may—

(a) search the person for relevant evidence, and

(b) stop and detain the person for the purposes of the search.

(3) The powers conferred by this section may be exercised in any place to which the officer lawfully has access (whether or not it is a place to which the public has access).

(4) In this Act—

• “police or customs officer” means—

  (a)

  a constable,

  (b)

  a general customs official, or

  (c)

  a designated NCA officer authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a police or customs officer under this Act;

• “relevant evidence” means evidence that an offence has been committed under any of sections 4 to 9 or section 26.

37 Power to enter and search vehicles

(1) This section applies where—

(a) a police or customs officer has reasonable grounds to suspect that there is relevant evidence in a vehicle, and

(b) the vehicle is not a dwelling.

(2) The officer may at any time—

(a) enter the vehicle and search it for relevant evidence;

(b) stop and detain the vehicle for the purposes of entering and searching it.

(3) Where—

(a) a police or customs officer has stopped a vehicle under this section, and

(b) the officer considers that it would be impracticable to search the vehicle in the place where it has stopped,

the officer may require the vehicle to be taken to such place as the officer directs to enable the vehicle to be searched.

(4) A police or customs officer may require—

(a) any person travelling in a vehicle, or

(b) the registered keeper of a vehicle,

to afford such facilities and assistance with respect to matters under that person’s control as the officer considers would facilitate the exercise of any power conferred by this section.

(5) The powers conferred by this section may be exercised in any place to which the officer lawfully has access (whether or not it is a place to which the public has access).

(6) In this section “vehicle” does not include any vessel or aircraft.

(7) For provision conferring additional powers to enter and search vehicles, see section 39.

38 Power to board and search vessels or aircraft

(1) This section applies where—

(a) a police or customs officer has reasonable grounds to believe that there is relevant evidence in or on any vessel or aircraft, and

(b) the vessel or aircraft is not a dwelling.

(2) The officer may at any time—

(a) board the vessel or aircraft, and

(b) search it for relevant evidence.

(3) For the purposes of exercising the power conferred by subsection (2), the officer may require a vessel or aircraft—

(a) to stop, or

(b) to do anything else that will facilitate the boarding of that or any other vessel or aircraft.

(4) A police or customs officer who has boarded a vessel or aircraft may, for the purposes of disembarking from the vessel or aircraft, require that or any other vessel or aircraft—

(a) to stop, or

(b) to do anything else that will enable the officer to disembark from the vessel or aircraft.

(5) A police or customs officer may require any person on board a vessel or aircraft to afford such facilities and assistance with respect to matters under that person’s control as the officer considers would facilitate the exercise of any power conferred by this section.

(6) For provision conferring additional powers to enter and search vessels and aircraft, see section 39.

39 Power to enter and search premises

(1) Where a justice is satisfied that the requirements in subsection (4) are met in relation to any premises, the justice may issue a warrant (a “search warrant”) authorising a relevant enforcement officer—

(a) to enter the premises, and

(b) to search them for relevant evidence.

(2) A search warrant may be issued only on the application of—

(a) a relevant enforcement officer, in England and Wales or Northern Ireland;

(b) a relevant enforcement officer or a procurator fiscal, in Scotland.

(3) A search warrant may be either—

(a) a warrant that relates only to premises specified in the warrant (a “specific-premises warrant”), or

(b) in the case of a warrant issued in England and Wales or Northern Ireland, a warrant that relates to any premises occupied or controlled by a person specified in the warrant (an “all-premises warrant”).

(4) The requirements of this subsection are met in relation to premises if there are reasonable grounds to suspect that—

(a) there are items on the premises that are relevant evidence, and

(b) in a case where the premises are specified in the application, any of the conditions in subsection (5) is met.

(5) The conditions referred to in subsection (4)(b) are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that it is not practicable to communicate with any person entitled to grant access to the items;

(c) that entry to the premises is unlikely to be granted unless a warrant is produced;

(d) that the purpose of entry may be frustrated or seriously prejudiced unless a relevant enforcement officer arriving at the premises can secure immediate entry to them.

(6) In this Act “relevant enforcement officer” means—

(a) a police or customs officer (see section 36(4)), or

(b) an officer of a local authority.

40 Further provision about search warrants

(1) An application for a search warrant may be made without notice being given to persons who might be affected by the warrant.

(2) The application must be supported—

(a) in England and Wales, by an information in writing;

(b) in Scotland, by evidence on oath;

(c) in Northern Ireland, by a complaint on oath.

(3) A person applying for a search warrant must answer on oath any question that the justice hearing the application asks the person.

In the case of an application made by a procurator fiscal, that requirement may be met by a relevant enforcement officer.

(4) A search warrant may be executed by any relevant enforcement officer.

(5) A search warrant may authorise persons to accompany any relevant enforcement officer who is executing it.

(6) A person authorised under subsection (5) to accompany a relevant enforcement officer may exercise any power conferred by sections 39 to 45 which the officer may exercise as a result of the warrant.

But the person may exercise such a power only in the company of, and under the supervision of, a relevant enforcement officer.

(7) Schedule 3 contains further provision about—

(a) applications for search warrants made in England and Wales or Northern Ireland, and

(b) search warrants issued in England and Wales or Northern Ireland.

(8) An entry on or search of premises under a search warrant issued in England and Wales or Northern Ireland is unlawful unless it complies with the provisions of Part 3 of that Schedule (execution of search warrants).

41 Powers of examination, etc

(1) This section applies where a relevant enforcement officer is exercising a power of search conferred by section 37, 38 or 39 in relation to any premises.

(2) The officer may examine anything that is in or on the premises.

(3) The officer may carry out any measurement or test of anything which the officer has power under this section to examine.

(4) The power conferred by subsection (3) includes power to take a sample from any live plant.

(5) For the purpose of exercising—

(a) a power of search conferred by section 37, 38 or 39, or

(b) any power conferred by this section,

the officer may, so far as is reasonably necessary for that purpose, break open any container or other locked thing.

(6) The officer may require any person in or on the premises to afford such facilities and assistance with respect to matters under that person’s control as the officer considers would facilitate the exercise of—

(a) a power of search conferred by section 37, 38 or 39, or

(b) any power conferred by this section.

(7) Nothing in this section confers any power to search a person.

42 Power to require production of documents, etc

(1) This section applies where a relevant enforcement officer is exercising a power of search conferred by section 37, 38 or 39 in relation to any premises.

(2) The officer may require any person in or on the premises to produce any document or record that is in the person’s possession or control.

(3) A reference in this section to the production of a document includes a reference to the production of—

(a) a hard copy of information recorded otherwise than in hard copy form, or

(b) information in a form from which a hard copy can be readily obtained.

(4) For the purposes of this section—

(a) information is recorded in hard copy form if it is recorded in a paper copy or similar form capable of being read (and references to hard copy have a corresponding meaning);

(b) information can be read only if—

(i) it can be read with the naked eye, or

(ii) to the extent that it consists of images (for example photographs, pictures, maps, plans or drawings), it can be seen with the naked eye.

43 Powers of seizure, etc

(1) A police or customs officer who is exercising the power of search conferred by section 36 may seize and detain anything found in the course of the search.

(2) This subsection applies where a relevant enforcement officer—

(a) is exercising a power of search conferred by section 37, 38 or 39 in relation to any premises, or

(b) is otherwise lawfully on premises.

(3) Where subsection (2) applies, the officer may—

(a) seize and detain or remove any item found on the premises;

(b) take copies of or extracts from any document or record found on the premises.

(4) A relevant enforcement officer to whom any document or record has been produced in accordance with a requirement imposed under section 42 may—

(a) seize and detain or remove that document or record;

(b) take copies of or extracts from that document or record.

In this subsection “document” includes anything falling within paragraph (a) or (b) of section 42(3).

(5) The powers under this section may only be exercised—

(a) for the purposes of determining whether an offence under any of sections 4 to 9 or section 26 has been committed, or

(b) in relation to an item which a relevant enforcement officer reasonably believes to be—

(i) relevant evidence, or

(ii) a psychoactive substance (whether or not it is relevant evidence).

(6) Nothing in this section confers power on a relevant enforcement officer to seize an item which is an excluded item (see section 44).

44 Excluded items

(1) This section defines what is meant by “excluded items” for the purposes of section 43.

(2) In England and Wales “excluded items” means—

(a) items subject to legal privilege, within the meaning of the Police and Criminal Evidence Act 1984 (see section 10 of that Act);

(b) excluded material, within the meaning of that Act (see section 11 of that Act);

(c) special procedure material, within the meaning of that Act (see section 14 of that Act).

(3) In Scotland “excluded items” means items in respect of which a claim to confidentiality of communications could be maintained in legal proceedings.

(4) In Northern Ireland “excluded items” means—

(a) items subject to legal privilege, within the meaning of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order);

(b) excluded material, within the meaning of that Order (see Article 13 of that Order);

(c) special procedure material, within the meaning of that Order (see Article 16 of that Order).

45 Further provision about seizure under section 43

(1) Where—

(a) any items which a relevant enforcement officer wishes to seize and remove are in a container, and

(b) the officer reasonably considers that it would facilitate the seizure and removal of the items if they remained in the container for that purpose,

any power to seize and remove the items conferred by section 43 includes power to seize and remove the container.

(2) If a container is seized under this section, reasonable efforts must be made to return it to—

(a) the person from whom it was seized, or

(b) (if different) a person to whom it belongs.

(3) Subsection (2) does not apply—

(a) if the container appears to be of negligible value,

(b) if it is not practicable for the container to be returned, or

(c) while the container is or may be needed for use as evidence at a trial for an offence.

(4) If, in the opinion of a relevant enforcement officer, it is not for the time being practicable for the officer to seize and remove any item, the officer may require—

(a) the person from whom the item is being seized, or

(b) where the officer is exercising a power of search conferred by section 37, 38 or 39 in relation to any premises, any person in or on the premises,

to secure that the item is not removed or otherwise interfered with until such time as the officer may seize and remove it.

46 Notices and records in relation to seized items

(1) This section applies where a relevant enforcement officer, or a person accompanying a relevant enforcement officer, seizes any item under section 43.

(2) When the item is seized, the officer must make reasonable efforts to give written notice to each of the following persons—

(a) in the case of an item seized from a person, the person from whom the item was seized;

(b) in the case of an item seized from premises, any person who appears to the officer to be the occupier of the premises or otherwise to be in charge of the premises;

(c) if the officer thinks that the item may belong to any person not falling within paragraph (a) or (b), that other person.

A person falling within any of paragraphs (a) to (c) is referred to in this section as an “affected person”.

(3) If—

(a) the item is seized from premises, and

(b) at the time of the seizure it is not reasonably practicable to give a notice to any affected person,

the officer must leave a copy of the notice in a prominent place on the premises.

(4) The notice must—

(a) state what has been seized and the reason for its seizure;

(b) specify any offence which the officer believes has been committed;

(c) explain the effect of sections 49 to 51 and 53.

(5) The officer must make a record of what has been seized.

(6) If a person who appears to a relevant enforcement officer to be an affected person asks for a copy of that record, the officer must, within a reasonable time, provide a copy of that record to that person.

47 Powers of entry, search and seizure: supplementary provision

(1) A relevant enforcement officer may use reasonable force, if necessary, for the purpose of exercising any power conferred by sections 36 to 45.

(2) A person authorised under section 40(5) to accompany a relevant enforcement officer may use reasonable force, if necessary, for the purpose of exercising any power conferred by sections 39 to 45.

(3) The powers conferred on a relevant enforcement officer by any of sections 36 to 45 do not affect any powers exercisable by the officer apart from that section.

48 Offences in relation to enforcement officers

(1) A person commits an offence if, without reasonable excuse, the person intentionally obstructs a relevant enforcement officer in the performance of any of the officer’s functions under sections 36 to 45.

(2) A person commits an offence if—

(a) the person fails without reasonable excuse to comply with a requirement reasonably made, or a direction reasonably given, by a relevant enforcement officer in the exercise of any power conferred by sections 37 to 45, or

(b) the person prevents any other person from complying with any such requirement or direction.

(3) In this section any reference to a relevant enforcement officer includes a reference to a person authorised under section 40(5) to accompany a relevant enforcement officer.

(4) A person who is guilty of an offence under this section is liable—

(a) on summary conviction in England and Wales, to either or both of the following—

(i) imprisonment for a term not exceeding 51 weeks (or 6 months, if the offence was committed before the commencement of section 281(5) of the Criminal Justice Act 2003);

(ii) a fine;

(b) on summary conviction in Scotland, to either or both of the following—

(i) imprisonment for a term not exceeding 12 months;

(ii) a fine not exceeding level 5 on the standard scale;

(c) on summary conviction in Northern Ireland, to either or both of the following—

(i) imprisonment for a term not exceeding 6 months;

(ii) a fine not exceeding level 5 on the standard scale.

Retention and disposal of items

49 Retention of seized items

(1) This section applies to any item seized under section 43.

(2) The item may be retained so long as is necessary in all the circumstances and in particular—

(a) for use as evidence at a trial for an offence under this Act, or

(b) for forensic examination or for investigation in connection with an offence under this Act.

(3) No item may be retained for either of the purposes mentioned in subsection (2) if a photograph or a copy would be sufficient for that purpose.

50 Power of police, etc to dispose of seized psychoactive substances

(1) This section applies if—

(a) a police or customs officer has seized an item found during the course of a search under section 36, 37 or 38,

(b) the search was carried out in a place to which the officer lawfully had access without a warrant (whether issued under this Act or under any other enactment),

(c) the officer reasonably believes that the item—

(i) is a psychoactive substance which, if it had not been seized, was likely to be consumed by an individual for its psychoactive effects, but

(ii) is not evidence of any offence under this Act, and

(d) the officer has no reason to believe that, at the time of the seizure, the item was being used for the purposes of, or in connection with, an exempted activity carried on by a person entitled to the item.

(2) The officer may dispose of the item in whatever way the officer thinks is suitable.

(3) For the purposes of this section—

(a) an activity is an “exempted activity” in relation to a person if the carrying on of the activity by that person would not be an offence under this Act by virtue of section 11;

(b) the persons “entitled” to an item are—

(i) the person from whom it was seized;

(ii) (if different) any person to whom it belongs.

(4) In this section “enactment” includes—

(a) an enactment contained in subordinate legislation;

(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;

(c) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales;

(d) an enactment contained in, or in an instrument made under, Northern Ireland legislation.

51 Forfeiture of seized items by court on application

(1) A relevant enforcement officer may apply to the appropriate court for the forfeiture of an item retained under section 49.

(2) Where an application for the forfeiture of an item is made under this section, the item is to be retained while proceedings on the application are in progress.

(3) If the court is satisfied that—

(a) the item is a psychoactive substance which, if it had not been seized, was likely to be consumed by an individual for its psychoactive effects, and

(b) at the time of its seizure, the item was not being used for the purposes of, or in connection with, an exempted activity (see subsection (12)) carried on by a person entitled to the item,

the court must order the forfeiture of the item.

(4) If the item is not a psychoactive substance, the court may order the forfeiture of the item if satisfied that it has been used in the commission of an offence under this Act.

(5) Where an order for forfeiture of an item is made under subsection (3) or (4), the item may be disposed of in whatever way the officer who applied for the order, or another relevant enforcement officer acting on behalf of the same person as that officer, thinks is suitable.

(6) But the item may not be disposed of under subsection (5)—

(a) before the end of the period within which an appeal under section 52 may be made against the order, or

(b) if such an appeal is made, before it is determined or otherwise dealt with.

(7) If either subsection (8) or (9) applies in relation to an item, the court must order the item to be returned to a person entitled to it.

(For provision enabling an application for an order under this subsection to be made, see section 53.)

(8) This subsection applies in relation to an item if the court is not satisfied that the item—

(a) is a psychoactive substance, or

(b) has been used in the commission of an offence under this Act.

(9) This subsection applies in relation to an item if—

(a) the item is a psychoactive substance, and

(b) the court is satisfied that—

(i) if the item had not been seized, it was not likely to be consumed by any individual for its psychoactive effects, or

(ii) at the time of its seizure, the item was being used for the purposes of, or in connection with, an exempted activity carried on by a person entitled to the item.

(10) Where an order for the return of an item is made under subsection (7), the item may nevertheless be retained—

(a) until the end of the period within which an appeal under section 52 may be made against the order, or

(b) if such an appeal is made, until the time when it is determined or otherwise dealt with.

But if it is decided before the end of the period mentioned in paragraph (a) that there is to be no appeal, the item must be returned as soon as possible after that decision is made.

(11) In this section “the appropriate court” means—

(a) in relation to England and Wales—

(i) where the person in respect of whom the application is made is an individual who is under the age of 18, a youth court, and

(ii) in any other case, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland—

(i) where the person in respect of whom the application is made is an individual who is under the age of 18, a youth court, and

(ii) in any other case, a court of summary jurisdiction.

(12) For the purposes of this section—

(a) an activity is an “exempted activity” in relation to a person if the carrying on of the activity by that person would not be an offence under this Act by virtue of section 11;

(b) the persons “entitled” to an item are—

(i) the person from whom it was seized;

(ii) (if different) any person to whom it belongs.

52 Appeal against decision under section 51

(1) Where an order has been made under section 51, each of the following persons may appeal against the order—

(a) any party to the proceedings in which the order was made;

(b) any other person entitled to the item to which the order relates.

(2) Where—

(a) a relevant enforcement officer brings an appeal under this section, and

(b) no person entitled to the item in question was a party to the original proceedings,

the officer must make reasonable efforts to give notice of the appeal to every person who the officer thinks is or may be entitled to the item.

(3) An appeal under this section is to—

(a) the Crown Court, in England and Wales;

(b) the Sheriff Appeal Court, in Scotland;

(c) a county court, in Northern Ireland.

(4) An appeal under this section against an order must be made before the end of the period of 28 days starting with the date of the order.

(5) Subject to subsections (6) and (7), the court hearing the appeal may make any order the court thinks appropriate.

(6) If an appeal against an order for the return of an item is allowed—

(a) the court must order the item to be forfeited, and

(b) subsections (5) and (6) of section 51 apply with the necessary adaptations.

(7) If an appeal against an order forfeiting an item is allowed—

(a) the court must order the item to be returned to a person entitled to it, and

(b) subsection (10) of section 51 applies with the necessary adaptations.

(8) The persons “entitled” to an item for the purposes of this section are—

(a) the person from whom it was seized;

(b) (if different) any person to whom it belongs.

53 Return of item to person entitled to it, or disposal if return impracticable

(1) Where the retention of an item has been, but is no longer, authorised under this Act—

(a) the item must be returned to a person entitled to it (but see subsection (4));

(b) the appropriate court must, if asked to do so by a person entitled to the item, order it to be returned to that person.

(2) A person who claims to be entitled to an item retained under this Act may apply to the appropriate court for an order under subsection (1)(b) or section 51(7) (as appropriate).

(3) Where—

(a) a court makes an order under this Act requiring an item to be returned to a particular person, and

(b) reasonable efforts have been made, without success, to find that person, or it is for some other reason impracticable to return the item to that person,

the order has effect as if it required the item to be returned to any person entitled to it.

(4) Where—

(a) an item is required by a provision of this Act, or an order made under this Act, to be returned to a person entitled to it, and

(b) reasonable efforts have been made, without success, to find a person entitled to the item, or it is for some other reason impracticable to return the item to a person entitled to it,

a relevant enforcement officer may dispose of the item in whatever way the officer thinks is suitable.

(5) In this section “the appropriate court” means—

(a) in relation to England and Wales—

(i) where the person making the application is an individual who is under the age of 18, a youth court, and

(ii) in any other case, a magistrates’ court;

(b) in relation to Scotland, the sheriff;

(c) in relation to Northern Ireland—

(i) where the person making the application is an individual who is under the age of 18, a youth court, and

(ii) in any other case, a court of summary jurisdiction.

(6) The persons “entitled” to an item for the purposes of this section are—

(a) the person from whom it was seized;

(b) (if different) any person to whom it belongs.

54 Forfeiture by court following conviction

(1) This section applies where a person is convicted of—

(a) an offence under any of sections 4 to 9 and 26, or

(b) an ancillary offence (see subsection (11)).

(2) In this section “the court” means—

(a) the court by or before which the person is convicted of the offence, except where paragraph (b) or (c) applies;

(b) if the person is committed to the Crown Court to be dealt with for that offence, the Crown Court;

(c) if the person is remitted to the High Court of Justiciary to be dealt with for that offence, the High Court of Justiciary.

(3) The court must make an order for the forfeiture of any psychoactive substance in respect of which the offence was committed.

(4) The court may also make an order for the forfeiture of any other item that was used in the commission of the offence.

(5) An order under subsection (3) or (4) is referred to in this section as a “forfeiture order”.

(6) Before making a forfeiture order under subsection (4) in relation to any item, the court must give an opportunity to make representations to any person (in addition to the convicted person) who claims to be the owner of the item or otherwise to have an interest in it.

(7) A forfeiture order may not be made so as to come into force at any time before there is no further possibility (ignoring any power to appeal out of time) of the order being varied or set aside on appeal.

(8) Where the court makes a forfeiture order, it may also make such other provision as it considers to be necessary for giving effect to the forfeiture.

(9) That provision may, in particular, include provision relating to the retention, handling, destruction or other disposal of the item.

(10) Provision made by virtue of this section may be varied at any time by the court that made it.

(11) In this section “ancillary offence” means—

(a) an offence of attempting or conspiring to commit an offence under any of sections 4 to 9 and 26;

(b) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence under any of sections 4 to 9 and 26;

(c) an offence of inciting a person to commit an offence under any of sections 4 to 9 and 26;

(d) an offence of aiding, abetting, counselling or procuring the commission of an offence under any of sections 4 to 9 and 26.

Supplementary and final provisions

55 Application of Customs and Excise Management Act 1979

(1) Section 164 of the Customs and Excise Management Act 1979 (power to search persons) applies in relation to a psychoactive substance as it applies in relation to an article with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment.

(2) A psychoactive substance is liable to forfeiture under the Customs and Excise Management Act 1979 if—

(a) the psychoactive substance—

(i) is imported or exported, or

(ii) is entered for exportation or brought to any place in the United Kingdom for exportation,

(b) the psychoactive substance is likely to be consumed by any individual for its psychoactive effects, and

(c) the importation or (as the case may be) exportation of the psychoactive substance is not an exempted activity.

(3) For the purposes of subsection (2) the importation or exportation of a psychoactive substance is an “exempted activity” if it would not be an offence under this Act by virtue of section 11.

(4) Section 5 of the Customs and Excise Management Act 1979 (time of importation, exportation, etc) applies for the purposes of subsection (2) as it applies for the purposes of that Act.

56 Offences by directors, partners, etc

(1) Where an offence under this Act has been committed by a body corporate and it is proved that the offence—

(a) has been committed with the consent or connivance of a person falling within subsection (2), or

(b) is attributable to any neglect on the part of such a person,

that person (as well as the body corporate) is guilty of that offence and liable to be proceeded against and punished accordingly.

(2) The persons are—

(a) a director, manager, secretary or similar officer of the body corporate;

(b) any person who was purporting to act in such a capacity.

(3) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member, in connection with that management, as if the member were a director of the body corporate.

(4) Where an offence under this Act has been committed by a Scottish firm and it is proved that the offence—

(a) has been committed with the consent or connivance of a partner in the firm or a person purporting to act as such a partner, or

(b) is attributable to any neglect on the part of such a person,

that person (as well as the firm) is guilty of that offence and liable to be proceeded against and punished accordingly.

57 Providers of information society services

Schedule 4 contains provision about the application of certain provisions of this Act in relation to persons providing information society services within the meaning of that Schedule.

58 Review

(1) Before the end of the period mentioned in subsection (2), the Secretary of State must—

(a) review the operation of this Act,

(b) prepare a report of the review, and

(c) lay a copy of the report before Parliament.

(2) The period referred to in subsection (1) is the period of 30 months beginning with the day on which sections 4 to 8 come into force.

59 Interpretation

(1) In this Act—

• “access prohibition” has the meaning given by section 22(6);

• “designated NCA officer” means a National Crime Agency officer designated under section 10 of the Crime and Courts Act 2013 as a person having either or both of the following—

  (a)

  the powers and privileges of a constable;

  (b)

  the powers of an officer of Revenue and Customs;

• “exempted substance” has the meaning given by section 3;

• “general customs function” has the meaning given by section 1(8) of the Borders, Citizenship and Immigration Act 2009;

• “general customs official” means a person designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 2009;

• “item” includes any substance;

• “justice” means—

  (a)

  in England and Wales, a justice of the peace,

  (b)

  in Scotland, a sheriff or a justice of the peace, and

  (c)

  in Northern Ireland, a lay magistrate;

• “local authority” means—

  (a)

  in England, a county council, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly,

  (b)

  in Wales, a county council or county borough council,

  (c)

  in Scotland, a council constituted under section 2 of the Local Government etc (Scotland) Act 1994, and

  (d)

  in Northern Ireland, a district council constituted under section 1 of the Local Government Act (Northern Ireland) 1972;

• “police or customs officer” has the meaning given by section 36(4);

• “premises” includes any place and, in particular, includes—

  (a)

  any vehicle, vessel or aircraft;

  (b)

  any offshore installation within the meaning given by section 1 of the Mineral Workings (Offshore Installations) Act 1971;

  (c)

  any renewable energy installation within the meaning given by section 104 of the Energy Act 2004;

  (d)

  any tent or movable structure;

• “premises notice” is to be read in accordance with section 14;

• “premises order” is to be read in accordance with section 20;

• “prohibited activity” has the meaning given by section 12;

• “prohibition notice” is to be read in accordance with section 13;

• “prohibition order” is to be read in accordance with section 17;

• “psychoactive effects”, in relation to a substance, is to be read in accordance with section 2(2);

• “psychoactive substance” has the meaning given by section 2(1);

• “relevant enforcement officer” has the meaning given by section 39(6);

• “relevant evidence” has the meaning given by section 36(4);

• “search warrant” means a warrant under section 39;

• “senior officer” has the meaning given by section 13(7);

• “vessel” is to be read in accordance with subsection (4).

(2) In this Act—

(a) any reference to producing a substance is a reference to producing it by manufacture, cultivation or any other method;

(b) any reference to supplying a substance includes a reference to distributing it;

(c) any reference to consuming a substance is to be read in accordance with section 2(3).

(3) For the purposes of this Act the items which are in a person’s possession include any items which are—

(a) subject to that person’s control, but

(b) in the custody of another person.

(4) In this Act any reference to a vessel includes a reference to—

(a) any ship or boat or any other description of vessel used in navigation, and

(b) any hovercraft, submersible craft or other floating craft,

but does not include a reference to anything that permanently rests on, or is permanently attached to, the sea bed.

(5) Before the commencement of section 109 of the Courts Reform (Scotland) Act 2014 (abolition of appeal from a sheriff to the sheriff principal), any reference in this Act to the Sheriff Appeal Court, other than the reference in section 31(1) in relation to a prohibition order made under section 19, is to be read as a reference to the sheriff principal.

60 Consequential amendments

Schedule 5 (which contains consequential amendments) has effect.

61 Power to make further consequential amendments

(1) The Secretary of State may by regulations make provision that is consequential on any provision of this Act.

(2) The power to make regulations under this section—

(a) is exercisable by statutory instrument;

(b) includes power to make transitional, transitory or saving provision;

(c) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under primary legislation passed before this Act or in the same Session.

(3) A statutory instrument that contains (with or without other provision) regulations under this section that amend, repeal or revoke any provision of primary legislation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

(5) In this section “primary legislation” means—

(a) an Act of Parliament;

(b) an Act of the Scottish Parliament;

(c) a Measure or Act of the National Assembly for Wales;

(d) Northern Ireland legislation.

62 Extent

(1) Except as provided by subsection (2), this Act extends to England and Wales, Scotland and Northern Ireland.

(2) Any amendment or repeal made by this Act has the same extent as the provision amended or repealed.

(3) The power under section 384(1) of the Armed Forces Act 2006 (“the 2006 Act”) may be exercised so as to extend to any of the Channel Islands (with or without modifications) any amendment or repeal made by or under this Act of any part of the 2006 Act.

(4) The power under section 384(2) of the 2006 Act may be exercised so as to modify any provision of that Act as amended by or under this Act as it extends to the Isle of Man or a British overseas territory.

63 Commencement and short title

(1) The following provisions of this Act come into force on the day on which this Act is passed—

(a) sections 59, 61 and 62 and this section;

(b) any power to make regulations under this Act.

(2) The remaining provisions of this Act come into force in accordance with provision contained in regulations made by the Secretary of State.

(3) Regulations under subsection (2) may—

(a) make different provision for different purposes;

(b) make such transitory or transitional provision, or savings, as the Secretary of State considers necessary or expedient.

(4) This Act may be cited as the Psychoactive Substances Act 2016.