Psychoactive Substances Bill

Written evidence submitted by Hampshire County Council Trading Standards Service (PSB 15)

Psychoactive Substances Bill

1. Background

1.1 Hampshire County Council Trading Standards Service is a service provided by the local authority that is tasked with the enforcement of a wide range of legislation aimed at protecting the consumer as a whole whilst maintaining a fair trading environment.

1.2 The Trading Standards Service therefore 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.

1.3 Hampshire County Council Trading Standards Services provides such services in a jurisdictional area with in excess of 1.3 million residents and in excess of 51,000 VAT registered businesses.

2. Comments on Psychoactive Substances Bill and Proposed Amendments

2.1 The Bill as currently drafted places the emphasis of enforcement squarely onto the composition of psychoactive substances. Simply put, the product must be a psychoactive substance, as defined in Clause 2, in order for the Bill to apply.

2.2 Clause 2.2 indicates that the product must either stimulate, or depress a person’s central nervous system and thereby affect their mental functioning or emotional state in order to be considered to be a ‘psychoactive substance’.

2.3 In order to determine, to the criminal evidence standard, that a product is a psychoactive substance it will be necessary to both determine the chemical composition of each product and the harm it could subsequently cause to the individual. This is a two step process that will be both difficult, and costly, to enforce.

2.4 In 2012-2013 Hampshire County Council Trading Standards undertook testing of a small number of psychoactive substances obtained from a single retail outlet in Hampshire. The testing initially consisted of chemical analysis at a laboratory within Hampshire to determine composition, with the results being reviewed by a leading, and nationally recognised, clinical toxicologist.

2.5 This single exercise took many months and the cost was in excess of £6,000. The results indicated that whilst it was a relatively straightforward matter to determine chemical composition, it was more difficult to determine the effect on the human physiology due to a lack of clinical trials; especially when anecdotal evidence would indicate that users would be unlikely to take such products in isolation. Such products often being used in conjunction with alcohol and controlled drugs.

2.6 It is the view of Hampshire County Council Trading Standards that enforcement of this Bill could be made more practical; quicker and cost effective by amending Clause 5 in respect of the proposed offence for ‘supplying, etc’ a psychoactive substance.

2.7 A proposed amendment to this Clause, would be:

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].

2.8 The effect of this amendment would mean that in relation to the supply chain, an offence would still be committed if there was a supply, offer to supply, etc., of a product that the seller knew or suspected, or ought to have known or suspected, was purporting to be a psychoactive substance or likely to be mistaken for such a product.

2.9 The practical and effective aspect of enforcement stems from a reduction in the amount of testing needing to be undertaken by enforcement authorities, as the main evidence of any offence would focus on the circumstances in which it was being sold instead. What did the seller think they were selling? What did the consumer think they were buying?

2.10 The Bill, as currently drafted, is not clear in terms of which body would have enforcement responsibility. Instead, it defines who may enforce the proposed legislation by reference to individual powers of enforcement. For example, Clause 35 (Power to Stop and Search Persons) is only available to the police or customs officials. Clause 38 (Power to Enter and Search Premises) is available to ‘a relevant enforcement officer’ which is defined as being the police, customs officials and officers of local authorities.

2.11 It is the view of this Service that the Bill would benefit from a clear indication as to which authorities would have a duty of enforcement and, whether this relates to the entirety of the Bill or of individual clauses. Such an indication would lead to consistent enforcement practices being adopted.

2.12 It is the view of this Service that the Bill would also benefit from further consideration being given to the proposed enforcement powers that would be available to local authorities, in order that effective enforcement can occur. Specifically around the power to enter and search premises (Clause 38); examination (Clause 40); production of documents (Clause 40).

2.13 The powers as currently drafted in Clause 38; Clause 40 and Clause 41 would only be available to Trading Standards Officers having obtained a search warrant from a Justice of the Peace.

2.14 The power of seizure (Clause 42) would be available to Trading Standards Officers who are on premises for the purpose of a search (Clause 38) or otherwise lawfully on premises.

2.15 It is the view of this Service that in order for Trading Standards Officers to be able to properly determine whether or not a product should be seized (Clause 42), it may be necessary to both examine the product and any documentation in the possession of the occupier. If Trading Standards Officers were lawfully on premises, but not pursuant to a search under Clause 38, it is our view that there is a risk they may not be able to lawfully seize such products which may be required as evidence. Should they subsequently leave the premises and apply for a search warrant to enter in accordance with Clause 38, the relevant evidence may no longer be on the premises.

2.16 It is the view of this Service that a routine power of entry, to premises not wholly or mainly occupied as a dwelling place, would also be necessary in order to ensure effective enforcement. The existing Clause 38 should be amended to clarify that it relates to premises wholly or mainly occupied as a dwelling place and/or premises where entry is likely to be refused. This would enable visits to outlets such as retail shops and warehouses to occur without having to seek an entry warrant.

2.17 Furthermore, Clauses 40 and 41 should be amended to extend the power of examination and production of documents to such routine entries. This would mean that in the scenario given in paragraph 2.15 above, Trading Standards Officers will have exercised a routine power of entry; be able to examine products and look at relevant documents in order to determine whether or not it is proportionate to exercise a power of seizure of relevant evidence.

3. Conclusion

3.1 In conclusion, Hampshire County Council Trading Standards Service would recommend that the Committee consider:

(i) Clear indication of enforcement agency responsibility

(ii) Amendment of the proposed Clause 5 offence to include products purporting to be, or likely to be mistaken for, psychoactive substances

(iii) Inclusion of a ‘routine power of entry’ to premises not wholly or mainly used as a dwelling place

(iv) Amendment of Clause 38 to clarify it applies to premises wholly or mainly used a dwelling place and/or premises where entry is likely to be refused

(v) Amendment of Clauses 40 and 41 to extend their availability to entries to premises not under warrant.

October 2015

Prepared 27th October 2015