Section 4: Producing a psychoactive substance
This section provides for an offence of producing a psychoactive substance. The conduct (actus reus) element of the offence is satisfied if a person produces a psychoactive substance. By virtue of section 59(2)(a), production for these purposes covers manufacture, cultivation or any other method of production.
	There are then three mental (mens rea) elements of the offence. First, the prosecution must show that the production is intentional, so if a psychoactive substance was inadvertently created (for example, as an unintended by-product of research) the offence would not be made out. The defendant must also have intended to produce a psychoactive substance rather than any other substance. Second, the defendant must have known or suspected that the substance is a psychoactive substance. Third, the defendant must either intend to consume the psychoactive substance for its psychoactive effects, or know, or be reckless as to whether, the psychoactive substance is likely to be consumed by another person for its psychoactive effects.
	For a person to have known that a substance is a psychoactive substance, the knowledge must be founded on a true belief; a person cannot be convicted of this offence on the basis that he or she "knew" the substance is a psychoactive substance if, in fact, it was another substance.
	Suspicion is a subjective test and need not be based on reasonable grounds.  There must be a possibility, which is more than fanciful, that the relevant facts exist.  The courts have held that "a vague feeling of unease" would not suffice. But the suspicion need not be "clear" or "firmly" grounded and targeted on specific facts or based upon reasonable grounds (Da Silva [2006] EWCA Crim 1654).
	A person acts recklessly when he or she is aware of a risk that it exists or will exist and, in the circumstances known to him or her, it was unreasonable to take the risk but nonetheless he or she did so. The onus will be on the prosecution to prove that this is the case. The recklessness test would therefore capture circumstances where a defendant claims he or she was manufacturing, say, "plant food" but knows that there is a substantial risk that the substance will in fact be consumed (indeed, that is the real intention) and proceeds to produce the substance heedless of that risk.
	The offence does not apply where production is covered by an exemption provided for in Schedule 2 or in regulations made under section 11 (subsection (2)).
	The generic secondary offences will apply to the offences in this section (and sections 5, 7, 8 and 9) as they apply to any offence. Accordingly it will be an offence to encourage or assist the offence of production of a psychoactive substance (see Part 2 of the Serious Crime Act 2007), to attempt to produce a psychoactive substance (see section 1 of the Criminal Attempts Act 1981), or to conspire to commit the offence of production of a psychoactive substance (see section 1 of the Criminal Law Act 1977).