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Psychoactive substance test results to be deployed in first ‘designer drug’ trials

Lawyers prosecuting alleged dealers charged under new legislation banning formerly legal highs will rely on new technology commissioned by the Home Office.

In vitro techniques for determining whether the content of various ‘designer drugs’ seized by police falls under the government’s definition of a psychoactive substance are currently being finessed at the request of the Home Office, E&T has learnt.

Lawyers prosecuting alleged suppliers of what were until recently considered legal highs are expected to draw for the first time on the results of newly created laboratory tests at UK court trials scheduled to take place within the next few months.

Niamh Eastwood, executive director of Release, a charity that provides legal advice on drugs, questioned whether the approach would work.

She said prosecution lawyers would have to prove whether substances could change people’s mental state - a notoriously hard legal bar to cross.

“I’m not sure that’s provable in a test tube,” she added.  

The new testing techniques are based on fresh varieties of what are called receptor assays, which show whether a substance binds to a particular structure in human cells and activates a response in the body.

They have never before been used to support prosecutions in the British court system because recreational drugs have traditionally been banned with reference to their chemistry rather than the effects they may have on anyone who consumes them.

Catch-all legislation brought in last year which bans every psychoactive substance except for those socially accepted examples such as alcohol, caffeine and prescription medicines means the focus has now shifted from chemical formulas to the mind-altering nature of particular pills and powders.

Professor David Osselton from the Centre for Forensic Sciences at Bournemouth University said: “If it’s a brand-new substance, how do you test whether it’s psychoactive, because it has to be psychoactive to be controlled? Imagine you get this new white powder - how do you say this is psychoactive or it’s not psychoactive?

“I understand that the Home Office – although they’re not releasing information about it yet, or to my knowledge haven’t – is developing a receptor test.

“Effectively what they are trying to do is to work up an assay that says, fine, we can do a test to see if this new substance binds to the receptor. In principle, that’s quite a neat idea.”

The Psychoactive Substances Act was intended to tackle the problem of law enforcement always being one step behind the chemists who cook up new substances which mimic the effects of traditional recreational drugs while being sufficiently chemically different to escape the scope of existing prohibition laws.

Prof Osselton, whose lab analyses bags of luridly coloured tablets seized by the authorities at festivals and the UK border and adds them to the TICTAC drug identification database - used by police and hospitals nationwide - has described new psychoactive substances as a “toxicological nightmare” because of their seemingly endless variety.

He said: “The whole thing about these psychoactive substances was that they were being sold as legal because they weren’t controlled. Youngsters thought because it’s legal, it’s safe. The new law is that if it’s psychoactive, it’s controlled. Generally speaking, the idea was to try and get at the designer drugs.”

The Act has been largely successful at removing High Street “headshops” which had exploited the previous loophole, but toxicologists have noted several practical impediments to prosecuting any defendants whose cases go to trial.

In all cases to date in which criminals have been convicted under the new Act, defendants entered guilty pleas, meaning there was no trial. This has led to concern about prosecutions failing if the question of a substance’s psychoactivity ends up being examined before a judge and jury.

Professor Ray Hill, who serves on the UK Advisory Council on Misuse of Drugs, said receptor assay tests have been widely used in the pharmaceutical and biotechnology industries for some time, but he confirmed some labs are now putting them into use as part of forensic science services they offer police.

Similar tests to prove whether a substance contains cannabis, cocaine or LSD have long been used to prosecute alleged dealers of these traditional recreational drugs, but unlike roadside breathalyser-type testing of motorists they do not give an instant “positive” or “negative” result.

“You have to send samples away and assays have to be run and the results have to be quality screened and sent back, so it can take time,” Prof Hill said.

Those sceptical about the efficacy of the new assay tests include Professor David Nutt, the former government drugs adviser who was notoriously forced to resign from that post after saying LSD and ecstasy were less harmful than alcohol.

“A lot of drugs don’t get in the brain and if they don’t get in the brain they can’t be psychoactive,” he said. “Just because it binds to a receptor, that doesn’t tell you whether it would even get through the stomach wall, so there’s no way that binding in a test tube can have any meaning at all.

“The second thing is, a drug binding in a test tube doesn’t tell you whether it’s an agonist or an antagonist. Generally, antagonists don’t do anything when they get in the brain anyway. Agonists might. So you have two fundamental flaws in the test tube approach.

“I can almost guarantee it will have no impact on convictions because it will fall at the first hurdle in court.”

Release last year issued legal advice to potential defendants charged under the Psychoactive Substances Act, which stated: “Because this is a new law it is hard to say what will happen until some cases come to court – we will be keeping an eye on this and updating our guidance when needed.

“In the meantime, you might want to plead not guilty and make the prosecution prove the psychoactivity of a substance. This is your right, but remember there are risks involved if you are subsequently found guilty of the offence - the main one being a longer sentence than if you had pleaded guilty early on.”

The Home Office has not commented on the new tests.

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