Psychoactive Substances

Background

The Criminal Justice (Psychoactive Substances) Act 2010 was introduced principally to curtail the phenomenon of “head shops” which had sprung up throughout the country.  The shop sold a range of products that were not controlled drugs at the time but which had the same effect.

As attempts were made to prescribe particular substances as controlled drugs, new substances quickly emerged. The legislation introduced a more general level of control to deal with these types of products.

The legislation does not apply to products controlled by existing licenses and authorisations etc.  This includes medicinal products, animal remedies, intoxicating liquor, tobacco and food.

Main Offence

It is an offence to sell import or export a psychoactive substances for human consumption.  It is an offence to sell such substance knowing or being reckless as to to further it is being acquired or supplied for human consumption.

Selling includes supplying, distributing, offering for sale, exposing or keeping for sale or being in possession for the purpose of sale.  A sale includes face to face sales, home delivery and sales on the internet.

It is an offence to import or export psychoactive substance knowing or being reckless as to whether it is being acquired or supplied for human consumption.

Presumptions

It is presumed until the contrary is shown that the accused knew or is reckless as to whether the substance was being supplied or acquired for human consumption where the court is satisfied having regard to

• any indication given by the person concerned orally or in writing, by means of the internet or by electronic communication or any indication otherwise given by means of any packaging, leaflets, notices or by any other object or thing that the substance concerned may have psychoactive effects or that it may be consumed in a way similar to a controlled drug,
• any indication in or at any place to which the proceedings for the offence relate that suggests the consumption of controlled drugs, including the presence of any apparatus, equipment or thing which may reasonably be associated with the consumption of controlled drugs, and
• whether it is reasonable to find that the substance concerned is being sold or imported or exported, as the case may be, for an alternative lawful purpose, taking into account the cost and quantity of the substance being sold or being imported or exported, as the case may be,

that it is reasonable to assume that the person knew or was reckless as to whether the substance was being acquired or supplied for human consumption. It shall be presumed, until the court is satisfied to the contrary, that the person had such knowledge or was so reckless.

The court may be satisfied in relation to the matters above notwithstanding any oral or written statement or indication given on the packaging that the substance in question is not psychoactive and is not intended for or fit for human consumption

Advertising

It is an offence to advertise a psychoactive substance or object to which the above provisions apply.  It is an offence to publish or display any advertisement knowing or being reckless as to whether the advertisement indicates an intention to sell, import or export a psychoactive substance for human consumption, or an object for use in cultivating by hydroponic means any plant in contravention of the Misuse of Drugs act.

It is an offence to publish an advisement promoting the consumption of a substance for its psychoactive effect and providing information on how or where such a substance may be obtained.  It is an offence to publish an advisement providing information on how an object may be used to cultivate by hydroponic means any plant in contravention of the Misuse of Drugs Act.

It is a defence for a person accused of an offence above to prove that he is a person referred to below, engaged in lawful professional activities.  Certain categories of doctors, pharmacists, who sell, import, export  or advertise psychoactive substances are not guilty of an offence if the activity is for the purpose of their profession and are not otherwise lawful.

Prohibition Notice

A Garda superintendent or higher rank may serve a prohibition notice on a person whom he believes his selling, importing or exporting psychoactive substances for human consumption or selling objects for use in cultivation by hydroponic means any plants etc. or advertising such substances, etc. The prohibition notice must specify the reasons for the opinion and direct the person to cease the activities specified.  They must specify the consequences of failure to comply with the direction in the notice.

Where a Garda superintendent is of the opinion that a person is not in compliance with a direction contained in a prohibition notice, he may apply to the District Court for an order prohibiting the person from engaging in the activity.  The court having considered the evidence and all the circumstances may if  satisfied that the person has engaged in an activity specified in the notice and is necessary to prevent the person from engaging or continuing to so engage, may make an appropriate order.

In considering the application the court is to have regard to

• indications given by the person in any form that a substance may have psychoactive effects,
• any indication in or at any place specified that suggests the consumption of controlled drugs, including the presence of any apparatus, equipment or thing which may reasonably be associated with the consumption of controlled drugs, and
• whether it is reasonable to find that the substance concerned is being sold or imported or exported, as the case may be, for an alternative lawful purpose, taking into account the cost and quantity of the substance being sold or being imported or exported, as the case may be.

The court may decide not to make a prohibition order where it considers the order would be unjust in the circumstances.  This is a civil procedure and the court need only be satisfied as to the requisite matters on the balance of probabilities. It is an offence to fail to comply with the prohibition order.  A prohibition order may be appealed to the Circuit Court.

Closing Order

A person convicted of an offence above may in addition to or as an alternative to another penalty may be subject to a closure order.  The closure order will prohibit the person concerned from operating any business or engaging in the activities which may reasonably  be considered to be connected with the sale, importation, exportation, advertisement of psychoactive substances for human consumption.

The order may apply to the place where the offence is committed or other places specified. A failure to comply with a closing order is an offence.

The District Court may vary or discharge a closing order or a prohibition order.

Garda Powers

The Gardai have powers to enter, search and seize in relation to places, vehicles, etc., without a warrant, where there is reasonable suspicion that materials relating to contravention of legislation may be. They may

• carry out or have carried out such examinations, tests, inspections and checks of anything reasonably believed to be a psychoactive substance or any machinery, instrument or other thing used in the preparation, handling, storage, transport or sale of psychoactive substances, as he or she reasonably considers to be necessary for the purposes of this Act,
• take such reasonable samples of, or from, any substances or of, or from, anything for the purposes of analysis and examination which he or she reasonably considers to be necessary for the purposes of this Act,
• seize and detain any machinery, instrument or other thing used in the preparation, handling, storage, transport or sale of psychoactive substances or anything which is reasonably believed to be or to contain a psychoactive substance in relation to which a contravention of this Act is being or has been committed,
• inspect and take copies of any books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection, and remove any such books, records or documents from such place and detain them for such period as he or she reasonably considers to be necessary for the purposes of this Act,
• require any person present in the place or, where the place is a vehicle, require the person who is for the time being in charge or control of the vehicle to give his or her name and address to the member,
• search or cause to be searched any person present in the place,
• require any person at the place or the owner or person in charge of the place and any person employed there to give to him or her such assistance and information and to produce to him or her such books, records or other documents (and in the case of records or documents stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under this Act,
• direct that such products, substances or objects found at the place as he or she, upon reasonable grounds, believes contravene a provision of this Act not be sold or moved from the place, without his or her consent, and
• secure for later inspection any place or part of any place in which a product, substance or object is found or ordinarily kept, or books, records or documents are found or ordinarily kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Act.

The District Court may grant a warrant to search a dwellinghouse.

Various

Customs and excise officers are given powers to intercept and forfeit unlawful psychoactive substances for human consumption, in the course of  import and export.

It is an offence to obstruct a Garda or officer of the Customs and Excise in and excise in exercise of their functions under the legislation.

Laboratories may be designated for the purpose of examination and analysis of substances under the legislation.  There are provisions relating to evidence in proceedings, things seized which may be used in evidence or disposed of in accordance with legislation.

A person guilty of an offence under the legislation is subject to on summary conviction to a fine up to  €5,000 or imprisonment for 12 months or both or an indictment to an unlimited fine and imprisonment up to five years or both.

Offences may be committed by bodies corporate. Directrors and other  officers, etc. who are aware of or are reckless as to the matters concerned also commit the relevant and may be prosecuted.