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What should be done about the failure of the Psychoactive Substances Act 2013 to control unapproved psychoactive products?

Unapproved psychoactive products should be controlled drugs. As such, their classification should follow recommendations of the Expert Advisory Committee on Drugs, and pending any advice to the contrary they should be Class C controlled drugs.

An arguably premature revision of the mental elements for liability for drug offences was undertaken in Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 (not freely available online, strange to say). [Background: perhaps the delay in its availability was due to outstanding proceedings against an absconding defendant keeping suppression orders in force until his death, reported on 2 March 2019 - although there had been extensive media coverage in 2018 of the entire case up to sentencing, with everyone named. No, that's not the reason. There is no reason.] The new requirement of knowledge that the substance was a controlled drug, or of recklessness as to its being a controlled drug, is too narrow in that it pinpoints “controlled drug”. This means knowledge of, or recklessness as to, the substance being scheduled in the Misuse of Drugs Act 1975, including knowing it by a name that is a common term for a scheduled substance (see Cameron at [40], [93]).

The problem here is that under this requirement it would be a defence for a person to have thought that the substance was an unapproved psychoactive product (there are currently no approved products, and none are in the process of being tested for approval).

Under the pre-Cameron law, the mental elements for guilt included knowledge that the substance was a drug that had an effect on the mind. This requirement, settled for some 30 years after some interesting cases were digested, did not give rise to intrinsic difficulties of proof. If anyone asked what I thought, I would say, go back to that. Cameron is suited to an anticipated future in which there are approved psychoactive products and it is necessary to recognise the innocence of people who honestly think they have such a product when in fact they have a controlled drug. On this view, we have here a rare example of reality not having caught up with the law.

As far as controlled drug analogues are concerned, we should wonder whether the legislated criterion of "substantially similar" structure to a controlled drug is really on point. The purpose of the Act is to prevent the harm that is caused by the use of controlled drugs, and substantial structural similarity serves (whether accurately or not, we don't necessarily know) as a proxy for that. In any event, for liability, mens rea should address the effects of the substance when used. If requiring knowledge of, or recklessness as to, structural similarity seems somewhat absurd (it has never been necessary for a defendant to know that a substance was an isomer, a salt, an ester or an ether of a scheduled substance) courts should be more comfortable assessing whether a defendant knew of, or was reckless as to, the effect of the substance on the mind of a user. People who manufacture and distribute such substances should be well aware of their effects when used, and of the similarity of those effects to those caused by use of controlled drugs. So, for offences in relation to analogues, there is no reason to treat the mental elements for liability as being any different from those applicable to other controlled drug offences. Our current legislation follows international precedents, at least as to definition of the actus reus, but that should not stop the search for improvements in the case law definition of the elements of mens rea.