33.Some of the written submissions we received highlighted that, for the criminal offences provided for in the Bill, the burden will be on the prosecution to prove beyond reasonable doubt that a substance has ‘psychoactive effects’. Amber Marks, a lecturer in criminal law, said that this “will be a “difficult and unworkable task””, whilst Rudi Fortson QC questioned how this would be proved in the absence of human clinical trials.
34.Newcastle City Council have raised concerns that substances would have to be tested in order to prove that they are ‘psychoactive’, and so caught by the legislation. The Chartered Trading Standards Institute argued that this would require “rigorous scientific testing and analysis to obtain a toxicology report detailing the specific chemical components found in the drug”. They estimate that it would cost £100 per substance to conduct a basic test, and that typical ‘head shop’ investigations require multiple tests to be conducted as the contents of a substance may differ between packets. They are therefore concerned that there will be significant cost implications for enforcement agencies, which has been echoed in other written submissions.
35.Police Scotland and the Scottish Government believe that the definition of a psychoactive substance might be problematic in ensuring a successful conviction. They argue that a successful case would require evidence from a qualified expert with experience of working with NPS to be able to identify the substance and prove its psychoactivity. However, given that the substances continually evolve they anticipate that the knowledge base would take a considerable amount of time to generate. Furthermore, they state that every case that involved NPS offences would require the suitably qualified medical expert to provide their evidence in court, which would incur a substantial cost.
36.In response, the Minister referred to the experience in Ireland:
There has been a remarkable lack of prosecutions, interestingly—I think only five have ended up in the courts—where they have used their forensic teams to prove that the product was [psychoactive] and then the courts have accepted that.
However, Release and Transform told us that the Irish authorities had experienced difficulties in proving psychoactivity. They referred to comments from Detective Sergeant Tony Howard from Ireland’s Drug and Organised Crime Bureau, who told the BBC that “there are problems. It is not perfect legislation”. He described how police scientists were having problems proving the ‘psychoactive’ nature of a substance, and said “we are relying on scientists to assist us with these prosecutions and, unfortunately, they haven’t been able to provide the evidence to us”.
37.This issue is one of the range of concerns that the ACMD has raised with the Home Office. It has argued that the psychoactivity of a substance cannot be unequivocally proven, because “the only definitive way of determining psychoactivity is via human experience, which is usually not documented”. While most psychoactive drugs share similar mechanisms of action, which can be determined by in vitro neurochemical tests, the ACMD are wary that such proxy measures may not stand up in a court of law. However, Professor Iversen suggested that if the ACMD’s proposed definition of psychoactive substances were to be accepted, the tests required could be written into the Bill and this would then be definitive without requiring medical experts to be available in the court.
38.If the legislation is to achieve its aims, it must deter producers and suppliers from making psychoactive substances available. According to Police Scotland, it is questionable how this will be done if these people cannot be successfully prosecuted. It appears that the ACMD might have provided a solution through their definition of psychoactive substances, and we call on the Government to assess whether this approach would result in more successful prosecutions.
46 Rudi Fortson QC (), Amber Marks, Lecturer in Criminal Law and Evidence, Queen Mary, University of London (), Chartered Trading Standards Institute ()
47 Amber Marks, Lecturer in Criminal Law and Evidence, Queen Mary, University of London (); Rudi Fortson QC (),
48 Newcastle City Council ()
49 Chartered Trading Standards Institute (); see also Dr Richard Stevenson (), YMCA England (), London Drug and Alcohol Policy Forum ()
50 Police Scotland (), The Scottish Government ()
52 Release and Transform ()
53 “”, BBC News, 22 June 2015
Prepared 22 October 2015