Legal perspectives: Psychoactive Substances Act 2016 In this feature l Act delayed l retailer responsibility l new powers The end of the headshop? Tim Naylor explores the impact of the Pyschoactive Substances Act 2016 Bye, bye legal highs? T he Psychoactive Substances Act 2016 (PSA) came into force on 26 May 2016, having been delayed from its original implementation date of 6 April 2016. Its enactment has been filled with controversy, not least because of the delay caused by authorities concerns as to how to define a psychoactive substance and ultimately its enforceability.1 Equally, however, it has been long-desired and finally offers some form of legislative response to the deeply concerning rise in the use of legal highs. Local authorities, particularly trading standards departments, have not stood by and simply observed this growing trend. Many have been particularly inventive and quite properly have used legislation primarily designed to tackle other mischief, such as consumer protection regulations, to try to hold back the tide.2 Ultimately, however, the battle between vendors of these substances and enforcement agencies has been undermined by the lack of legislative provision dealing directly with what is commonly regarded as a dangerous if entrepreneurial side-effect of the prohibition on the supply of controlled drugs. The tension in this area is not a new one. The creation of marketable, non-prohibited psychoactive substances may be a modern twist, but References: 1 Ban on legal highs delayed over concerns law is not enforceable, Guardian, 30March 2016. 2 Guidance for local authorities on taking action against head shops selling new psychoactive substances working with local partners. Home Office, 11March 2015. TAP TO NAVIGATE PAGES 1 Credits Tim Naylor is a junior barrister at QEB 2 3 4 5 6 To share this page, in the toolbar click on Hollis Whiteman legal chambers. 7 You might also like Judgment on lending penalty rates May 2016 Images: ShutterDivision / Shutterstock its roots can be found in the historic abuse of legitimate products, such as solvents and aerosols effectively, ways of getting high without the use of illegal drugs. Therein lies the tension that the drafters of this legislation had to deal with how does a responsible government clamp down on potentially dangerous abuse of substances, while not impeding their legitimate sale and use? Responsibility of the retailer This is a problem that the new legislation has attempted to tackle, as well as replacing the previous legislation relating to solvents, the Intoxicating Substances (Supply) Act 1985, (ISSA).3 The onus as it wasto a certain degree under the previous statute has been placed onthe retailer. The defining criteria for most of the offences created by the PSA is recklessness. The age restrictions of the ISSA have not been replicated, although guidance for retailers suggests that age is one important factor for a retailer to consider. The knowledge or suspicion of abuse of these potential substances relies upon the retailer being sufficiently knowledgeable of what products are likely to contain them, as well as having processes in place to identify customers who may be purchasing them with a view to abuse. While the Home Office guidance for retailers has been mocked in some quarters, it is at least an effort to assist legitimate enterprises with avoiding falling foul of what is a difficult area, even for lawyers.4 It has been suggested that if lawmakers cannot properly define these substances and how to criminalise them, the average shopkeeper can hardly be expected to show due diligence when trading in this area? The emphasis upon the responsibility of the retailer is undoubtedly one of the more controversial aspects of the legislation, but the unspoken reality must be that the potentially negligent vendor of whipped cream canisters is not the true target of this Act. Neither, really, is the young person filling up his balloon with the contents of it. This can be seen from the lack of a general possession offence under the Act. The legislation only criminalises the possession of such substances while in prison or a similar custodial environment.5 Young people possessing such substances, even in public, will not be committing criminal offences. It is said that it is not aimed either at those simply passing to friends for no reward, although that might be a question of degree at the polices discretion as, clearly, the offence of supply covers such activity.6 Ultimately, the Acts most significant impact although one must wait to see the results is likely to be the closing down of the commercial sale of such substances on the high street to the public. In effect, it finally provides the statutory power to close down the headshop. Targeting the headshop The lack of a possession offence may anger those who wanted a more draconian crackdown on the general use of legal highs by young people in particular. However, this position is sensible, particularly in light of the criticisms of the Act in relation to its enforceability. Police Scotland remarked to a House of Commons home affairs inquiry in 2015 that each case would require evidence from a qualified medical expert who can identify and prove the psychoactivity of the substance. This may very well be necessary when dealing with blackmarket street psychoactive substance dealers on the same basis as those supplying controlled drugs. Whether this actually will be a logistical difficulty that the Crown Prosecution Service, police forces and local authorities are unable to overcome is debatable. In theory, identifying the new substances is no different, and it is difficult to see that either forensic scientists or the police expert officers will have too many difficulties in evolving to be able to incorporate this field within their experience. The reality is that if authorities want to tackle this problem, they have to be able to develop their expertise to meet it. In any event, to avoid the potential drain on resources from mere possession cases and to concentrate instead on suppliers makes sense, particularly those retailers who have profited from the blatant marketing and sale of often considerably dangerous substances. At one point in the last few years, a plethora of these shops littered high streets in towns and cities across the country. Inquisitive teenagers would be drawn to the array of products openly marketed as controlled drug substitutes. The real success of the Act will be measured by the economic impact it will have and already has had on headshops across the country. Hopefully, the Act will strike a blow against these retailers without necessarily requiring a conviction. New statutory powers It is possible that one of the most powerful tools for authorities tackling the issue of headshops will not necessarily be the prosecution and conviction for offences under the Act, but through the implementation of the civil prohibition and premises notices. Section 13 permits senior officers or local authorities to give prohibition notices to a person, prohibiting that person from carrying on a prohibited activity.7 This includes producing, supplying, importing, exporting and assisting or encouraging any such activity.8 Section 14 provides the power to give a premises notice where a reasonable belief is held that prohibited activity is taking place there.9 Theses notices are designed to enable sufficient restrictions to be put in place to give the public further protection by limiting how the businesses trade. They are complemented and extended by powers such as entry, search and seizure. Properly used and deployed if necessary, the mere fear of prosecution ought to force these retailers off the high street or into another line of business. In the Republic of Ireland, the number of headshops reduced dramatically in 2010 after the Criminal Justice Psychoactive Substances Act came into force. According to senior officers of the Garda, the headshop industry there was reduced from 100 stores to zero.10 Equally, however and a statistic often quoted as a criticism of the effectiveness of the legislation there have been only four actual convictions under the Act.11 The reality is that the lack of prosecutions might actually be indicative of a disappearing problem, but not the abuse of psychoactive substances altogether a greater socio-economic and political issue that cannot be resolved by legislation alone. The legislation may have transferred the sale of such substances to the public on the high street. Forcing a problem underground The worrying potential consequence of the new legislation is that it will force the sale of psychoactive substances such as those once sold openly and legally on the high street underground and into the murky realm of the controlled drug supplier. Alternatively, and perhaps even more concerning, is the switch to internet sales. This will be the key battleground and one that authorities have to be prepared to invest time and resources into tackling. It would make a mockery of the Act if vendors forced from the headshops to the internet could then continue to trade with impunity. While the rise of the dark web is a worrying development, this is being tackled by law enforcement agencies.12 Similarly, the experimenting teenager is still unlikely to venture into such a murky world just for a weekend high. However, a lack of enforcement of openly available websites selling the same products would simply move a problem from one venue to another. Authorities must be prepared to invest resources to ensure the Act has anything of the force and impact it can have. The true power of the Act would be to allow authorities to free-up resources from figuring out how to tackle headshops and apply them actually to tracing the manufacturers, wholesalers and distributors of such products. Only that way can the Act and authorities in turn start to provide the much-needed protection that the public requires from these substances. References: 3 PSA, Schedule 5 4 Psychoactive Substances Act 2016: guidance for retailers, Home Office, 20 May 2016. See Policing whipped cream: Home Office publishes advice for Psychoactive Substances Act, Politics.co.uk, 23 May 2016, , for a critique of the guidance. 5 PSA, section 9 7 PSA, section 13 8 PSA, section 12, ibid 9 PSA, section 14, ibid. 6 Prosecution for sharing legal highs with friends unlikely under ban, Guardian, 22 May 2016. 10 Legal highs: Irish ban wiped out headshop industry, BBC News, 15 June 2015. 11 Call to halt legal highs ban based on flawed Irish system, BBC News, 22 June 2015. 12 Prosecution for sharing legal highs with friends unlikely under ban, Guardian,