Oxfordshire trading standards legal highs court case In this feature dangerous substances enforcement action legislation Duel in the crown Following the successful prosecution of one of the first legal highs cases to go before a crown court in England and Wales Nigel Lickley QC and Gemma White offer advice on how to acheive the right result New legislation means legal highs are more likely to be the polices problem in future, but one of the first trials to be heard at a crown court in England and Wales was prosecuted successfully by Oxfordshire Trading Standards in January. Brought under the General Product Safety Regulations 2005, the case resulted in significant financial penalties being given to both the defendant and the company with each fined 20,000 and ordered to pay prosecution costs of 40,000 while the company director received a six-month suspended jail term. The sentences imposed send a clear message about how seriously the courts take the sale of legal highs and while the police get to grips with the Psychoactive Substances Act 2016, cases like these are still likely to crop up for NaME? local authorities. The name legal highs is a misnomer because most chemicals sold as such are The case The prosecution was brought against RAD 1971 as illegal, hence the transposition to Trading and its owner, Darren Manley, who legal. Their correct name is new psychoactive owned a high street head shop as well as an substances. Unfortunately, the name legal internet business. Small packets of chemical highs implies that the substances are lawful powders labelled as research chemicals and safe, whereas many are highly dangerous. orincense were sold in bright packages, and had names such as Blow, Exodus and Clockwork Orange to attract a young clientele. The products were relatively cheap, costing from 10-30 abag. The business first came to the attention of Oxfordshire Trading Standards in late 2013, when the team received a number of complaints from the public and neighbourhood police about anti-social behaviour outside a shop called Red Eye, in Oxford. Local drug rehabilitation servicesand worried family members also reported concerns about addiction and mental health issues connected to products sold from thepremises. In July 2014, after several business-advice visits, Oxfordshire Trading Standards was granted authorisation under the Regulation of Investigatory Powers Act (RIPA) to make test purchases of various packages, which were then sent for toxicology analysis. The products were found to contain chemicals including methiopropamine that mimic the effects of illicit substances and have the potential to cause acute toxicity and even death. The combination of chemicals varied in each package, and the labels did not accurately record the contents, misleading the consumer, who may have had no adverse reaction on first use, but would have no knowledge of the risks involved in a subsequent use. Although warnings on the packets declared that the products were not for human consumption, these were not enough to absolve the defendant of criminal liability, when they knew full arguMENTS THaT CaN well that thosewho purchased them intended to take BE prESENTED TO pOSSIBLE them asintoxicants. LINES OF DEFENCE It became evident, through ongoing visits from trading standards and the police, that the company was neither prepared to change the products being sold, nor to take steps to determine their safety. Although safety notices were not breached, the company started selling products that were, in essence, the same mix of hazardous chemicals packaged in a different form. Court proceedings were started under the General Product Safety Regulations 2005. In preparation for the trial, the team obtained a further expert toxicology report, which alongside the original analysis, toxicology and chemist reports offered overwhelming evidence of the harms associated with these products. Usually, offences under the regulations are dealt with in a magistrates court, with fairly modest financial penalties imposed. However, this case was serious enough because of its complexity and the harmful nature of the products to merit transfer to crown court. The company and its owner pleaded guilty. not classified under the Misuse of Drugs Act Ensuring a successful prosecution Obtain expert evidence: In what can only be described as insightful legislative drafting, a product is defined as dangerous if it is not safe. To secure a successful prosecution, you will need to produce evidence that the substances are not safe. It is advisable to seek expert evidence from a chemist or forensic scientist in relation to the actual constituents or chemical composition of the products, as the local authority did in this case. Further evidence from a consultant physician or a clinical toxicologist will help to explain the risks associated with the particular chemicals found. Despite the initial financial outlay and the investigative time it takes to gather such evidence, it is likely to be TraDINg STaNDarDS crucial to the prosecutions case. aDvICE paula Bonham-Samuels was the lead Document advice: To prove an offence under the regulations, it must be shown that a defendant knew, or should have presumed, on the basis of information in his possession and as a professional, [it] is a dangerous product. In this case, there was an abundance of evidence available that the company and director had been repeatedly warned as well as given written advice packs about the danger of the products, and had a warning from the police to stop selling the products. trading standards officer in the case, and Ensure clear communications: Local authorities will be aware of the remit of their investigatory powers, particularly under the RIPA 2000. In this case, there was a close working relationship between trading standards and the police, which led to the sharing of evidence. A mobile phone linked to Manley had been forensically analysed by the police, and the details given to the local authority. Text messages on it showed Manley knew and understood that the products he was selling were hazardous. They proved the defendants state of mind, and his knowledge of the risks associated with what he was doing, and were key evidence. Local authorities should consider the importance of such evidence when seeking to demonstrate a subjective element of an offence. Intelligence gathering: Do your research! The psychoactive Substances act 2016 With the introduction of the Psychoactive Substances Act 2016, it is inevitable that some cases will now be dealt with exclusively by the police and Crown Prosecution Service, rather than by trading standards, but a strong multiagency approach may still be needed. The enforcement powers bestowed on local authorities by the 2005 regulations including making test purchases, issuing suspension notices, and marking safety notices remain a forceful tool in the armoury against the supply of dangerous synthetic chemicals, even if the prosecution of such matters may now lie principally with a different authority. offers this advice: partnership working is a must in situations such as this. The help and advice from healthcare professionals who deal with these issues daily was invaluable. Separate advice visits from the local police teams added to the mens rea element of proving the offence, while police support on the enforcement visits helped to keep the peace with customers at the shop. It was also useful when it came to seizing products and recording actions. Our intelligence manager dedicated hours to establishing who the directors were and their other business interests, and they discovered Manley had been investigated by Sussex police in May 2013 for manufacturing new psychoactive substances. The evidence obtained by Sussex police was included in the case and changed the designation of Manley from a retailer to a manufacturer. Do your ground work before the enforcement action: Obtaining information and statements from partners and product users is essential. Planning and preparing the advice visits is also key in proving that the defendant should have known, or should have presumed, the products were dangerous. Frequency and recording of visits: We made several business-advice visits to the shop and the companys head office, alerting them to their obligations under the General Product Safety Regulations 2005 to supply safe products. We made the initial enforcement visit with the police to seize the products subject to the test reports, and a Regulation 12 requirement to mark a safety notice was issued for all similar products, effectively preventing further sale of the hazardous products. We carried out similar visits every four weeks, and sent copies of all paperwork to RAD Tradings registered company address. The future From a consumer-protection point of view, trading standards should remain vigilant and confident that the regulations can and should still be used in appropriate cases. Undoubtedly, some matters that could be taken on by the criminal justice authorities will not be, and the duties of the local authority to protect consumers will continue. Prosecutions under the 2005 regulations are not yet obsolete. Credits Nigel Lickley QC and Gemma White, who To share this page, in the toolbar click on wrote the main article, are barristers at 3PB You might also like Trader admits selling dangerous legal highs February 2017 Criminal Law Barristers. Paula BonhamSamuels is principal trading standards officer at Oxfordshire County Council. Images: iStock.com/kostenkodesign books to criminalise the supply of such products because there confirms that the regulations apply was some sort of lacuna in to all goods that are (or could the law. arguMENTS THaT CaN BE prESENTED TO pOSSIBLE LINES OF DEFENCE Industrys Official Guidance be) placed on the market; in Simply because psychoactive short, no products are excluded, substances are not caught by except those that have their own the Misuse of Drugs Act 1971 does specific directive. not, itself, create a licence to sell or offer to supply them. With psychoactive substances are The general product Safety clear risks to health identified, not dangerous. regulations 2005 do not apply the new act does not fill a gap; This should be refuted fiercely, to new psychoactive substances rather, it is a more cohesive piece especially in a case such as the because consumers would be of legislation, enhancing the recent prosecution, when there seeking a stimulant effect in the previous approach to tackling was no expert evidence presented first place. psychoactive substances, which to suggest the products were safe. This argument lacks merit because the government considered Obviously, when the burden is on a comparison of the sale of piecemeal and disjointed. the Crown to prove its case, it will be necessary to show evidence psychoactive substances with other common intoxicants such The European Directive does not of the perils of the products. Even as alcohol or tobacco fails to apply to legal highs. though the conformity of a product recognise that those industries are The regulations bring into effect to the general product safety heavily regulated to maximise the EC Directive on general regime should be assessed by consumer protection. As a product Safety. Despite there consideration of, among other consumer, you can be confident being no explicit exclusion of things, reasonable consumer that the products have been psychoactive substances cited in expectations concerning safety through a fairly stringent safety any of the legislation, it might be and the regulations define safety regime, and there is limited risk of argued that the directive and, by reference to the intended acute toxicity in the short term. therefore, the regulations were purpose of a product ultimately, not intended to apply to consumers the suggestion that psychoactive The psychoactive Substances act who voluntarily undertook risk. substances are not dangerous is 2016 was brought onto the statute The Department of Trade and unlikely to find favour with a court.