Psychoactive Substances Bill

Written evidence submitted by the Chartered Trading Standards Institute (CTSI) (PSB 09)

1. Evidence detailed within this submission has been collected from our expert team of front line trading standards lead officers whose subject specialism focuses on the wider issues of age-restricted sales and health.

2. In paragraphs 18-19 and 20-23 we outline proposed amendments to the bill as requested by the public bill committee. In all other sections of the submission we provide expert information we would like the committee to be aware of in their deliberations.

3. In light of the report of the Home Affairs Select Committee (published 23 October) we note that other organisations have echoed our concerns about the cost implications associated within enforcement of the Psychoactive Substances Bill and would like to re-iterate this point to the public bill committee.

4. Introduction to CTSI

5. The Chartered Trading Standards Institute (CTSI) is a professional membership association founded in 1881. It represents trading standards officers and associated personnel working in the UK and also overseas – in the business and consumer sectors as well as in local and central government.

6. The Institute aims to promote and protect the success of a modern vibrant economy and to safeguard the health, safety and wellbeing of citizens by empowering consumers, encouraging honest business, and targeting rogue traders.

7. We provide information, evidence, and policy advice to support local and national stakeholders.

8. We have also, as part of our recently revised remit, taken over responsibility for business advice and education concerning trading standards and consumer protection legislation. To this end, we have developed the Business Companion website ( www.businesscompanion.info ).

9. The CTSI Consumer Codes Approval Scheme, launched in 2013, has superseded the OFT scheme.

Executive Summary

· Local authority trading standards services have faced severe resource and staff reductions in recent years.

· Conducting investigations to determine the chemical nature and potential impact upon ingestion of suspected psychoactive substances can be incredibly costly.

· We are concerned about the ability of some trading standards services to effectively enforce the new legislation without additional funding.

· We propose the existing Bill should be amended in a number of ways:

§ To tighten up the definition of ‘psychoactive’ substance.

§ To remove the requirement that the prosecution must prove ‘beyond reasonable doubt’ that a substance has psychoactive effects and amend the Bill so that the prosecution only has to prove it is the intent of the supplier to sell substances that could have these effects (clause 5).

§ To enable enforcers to effectively seize suspected goods if they are otherwise lawfully on a premises (clauses 40, 41, 42).

§ To explicitly state who the government intends the enforcement body for the Bill to be.

Evidence

10. Firstly, we are concerned that the definition of a substance having ‘psychoactive’ effects, as outlined in the proposed Bill, is very wide and also very difficult to prove.

11. We echo the findings of the Home Affairs Committee report that raise concerns that in the current drafting of the Bill, the breadth of the definition of ‘psychoactive’ substance is a concern because at present it is unclear exactly the kinds of substances it is specifically referring to.

12. Many substances could, in some circumstances, be described as ‘psychoactive’ depending on how they are used. As a consequence, we feel that there needs to be a more precise definition for the term to make it clearer the kinds of substances that the Bill covers.

13. Furthermore, under the proposed legislation it would be down to the prosecution to illustrate that any suspected substance was capable of producing ‘psychoactive effects’ and expert evidence would need to be obtained to prove this in court. Each separate substance being investigated would be required to undergo rigorous scientific testing and analysis to obtain a toxicology report detailing the specific chemical components found in the drug.

14. Evidence obtained from one trading standards service indicates that it costs around £100 per substance to conduct a basic test. This type of test is limited as it only provides investigators with information as to which chemicals are contained within a substance. Crucially, it fails to provide information about the exact harm a substance could cause when ingested. Without clinical evidence it can be extremely challenging to obtain reliable information of this type and further complex testing is required to garner accurate evidence as to what the effects of ingestion might be.

15. In terms of resource burden, trading standards have found that head-shop investigations require multiple tests to be conducted as the contents of a substance may differ between packets due to basic manufacture techniques. At the very least, one test for each type of product is required. So, for example, if a shop carries a range of six psychoactive substances a minimum of six tests would have to be carried out.

16. We are concerned about the significant cost implications for enforcers associated with the testing process and fear a significant number services will struggle to cope with this kind of financial burden. In some cases toxicologists are charging hefty sums to produce reports detailing the effects of substance ingestion (sometimes amounting to over four figures). This is a massive cost, especially considering that multiple tests on multiple substances will probably be required to progress just one investigation (we shall elaborate further on resource concerns later in this submission).

17. The recent report on the psychoactive substances bill, produced by the Home Affairs Committee, highlights our concerns regarding funding and reiterates that this is an issue multiple organisations have raised as an area of concern.

18. Linked to the problem of definition and testing costs, we have considered amendments to clause 5 (supply of psychoactive substances) to remove the requirement that the prosecution has to prove ‘beyond reasonable doubt’ that a substance has ‘psychoactive’ effects. As stated previously, with the Bill as it currently stands, proving that a seized substance is psychoactive could be challenging and would be incredibly costly for enforcers. Under our proposed changes the prosecutor would only need to prove that the intent of the supplier was that they planned to distribute products that might have psychoactive effect. This would facilitate the work of enforcers in combating the supply of NPS.

19. Please see our proposed amendments below in square brackets:

5 - Supplying, or offering to supply, a psychoactive substance[ , or a substance purporting to be or likely to be mistaken for a psychoactive substance]

(1) A person commits an offence if-

(a) the person intentionally supplies[, offers or exposes for supply] a substance to another person,

(b) the substance is a psychoactive substance [or a substance purporting to be or likely to be mistaken for a psychoactive substance],

(c) the person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance [or a substance purporting to be or likely to be mistaken for a psychoactive substance], and

(d) the person knows, or is reckless as to whether, the psychoactive substance, [or a substance purporting to be or likely to be mistaken for a psychoactive substance], is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effects [whether these effects are realisable or not].

20. Secondly, we wish to take this opportunity to raise our concerns over the potential effectiveness of the proposed new legislation in terms of enforcement powers specifically relating to the seizure of goods. We fear that the Bill provides insufficient powers to enable local authority enforcement officers to take action against suppliers of new psychoactive substances.

21. Considering specific segment of the Bill, powers outlined under clause 40 (examination) and clause 41 (production of documents) are only available for use by enforcement officers when acting under a warrant. Powers under clause 42 (seizure) differ from the former in that they can be employed by an enforcement officer under warrant when an officer is otherwise lawfully in the premises.

22. We believe it is highly likely that trading standards officers will come across psychoactive substances when inspecting premises for other products such as illicit tobacco or alcohol but will not have a warrant to specifically obtain any suspected psychoactive substances found on their visit.

23. Indeed, it is important to note that although clause 42 of the Bill allows enforcement officers to seize psychoactive substances if they are otherwise lawfully on a premises, it is not possible for officers to seize suspected products without first examining the product or viewing the supplier’s documents to establish what the product is purporting to be. We feel that this loophole makes the legislation unworkable for officers who will have to make a second visit to obtain suspected products which could very likely have been removed by the supplier by the time they return. Furthermore, a second visit would be very costly to an already resource-stretched service. We believe the Bill should be amended to include the clause that officers can act under the powers of clause 40 and clause 41 if they are ‘otherwise lawfully on the premises’, as in clause 42, to enable seizure of suspected psychoactive substances to take place more easily.

24. Thirdly, we believe that the Bill, as it stands, is unclear as to who exactly is supposed to be enforcing it. A specific definition, for example ‘local authority enforcement officer’, should be included to clarify this point.

25. Within the last parliament local authority trading standards have seen significant resource constraints with staff numbers dropping by an average of 40% and budgets falling by 50% (rising to over 80% in some areas). This has left many services struggling to cope with the over 250 pieces of statutory legislation that trading standards is already charged with enforcing.

26. In this climate of further predicted cuts, any additional statutory enforcement duties are difficult for trading standards to swallow as some departments are already struggling to cope with existing duties. In this case specifically, the new legislation on psychoactive substances will place an additional burden upon resources both in terms of the staff required to conduct inspections and drug testing costs. We are also concerned that prosecution costs could be high considering the mens rea element of the offences related to possession and supply of psychoactive substances.

27. We hope to see additional resources being allocated specifically to enforcement bodies, such as trading standards, to enable them to effectively investigate cases and, where necessary, bring to court for prosecution. Without this additional funding we fear the Bill runs the risk of becoming toothless because enforcement bodies such as trading standards will not have the resources to enforce it effectively.

28. Recommendations for the public bill committee

· The definition of ‘psychoactive’ substance should be made more precise to make it clearer exactly which types of substance the Bill is covering.

· The committee should push for amendments to clause 5 of the Bill to broaden the definition of an ‘offence’ relating to the supply of NPS.

· The committee should consider additional amendments to clause 40 and clause 41 to allow enforcement officers to seize suspected NPS more easily when they are already legally on the premises investigating other products.

· A definition detailing exactly which enforcement body is responsible for enforcing the Bill should be included.

October 2015

Prepared 27th October 2015