Dermot Ahern (Louth, Fianna Fail)

I am pleased to initiate the Criminal Justice (Psychoactive Substances) Bill 2010 in the Upper House, to which I express my appreciation for agreeing to deal with the Bill at short notice. This is a robust, innovative and urgent Bill, in which I am providing that it will be an offence to sell, import or export unregulated psychoactive substances for human consumption. In addition and very importantly, I am providing powers for the Garda Síochána and the courts to issue prohibition and closure orders in respect of persons or premises where the sale of such products continues, despite notice to cease.

In the last year we have seen the emergence of a new problem in our society with the proliferation of retail outlets known as head shops which have appeared on the main streets and in the suburbs of our cities and even in villages and towns. These outlets are engaged in the sale of a range of unregulated psychoactive substances. This trade operates behind a veil of technical legality, with products marketed as legal highs. This approach gives the impression that they are safe to use, thus enticing people, including teenagers and young adults who would not ordinarily take illegal drugs, to purchase them. Of course, they also attract the drug using population which consumes these products as alternatives, or in addition, to controlled drugs such as cannabis, cocaine and heroin. The products are sold with no information on content, no directions for use and no standards of control of quality or safety are applied. On the contrary, there is a deliberate attempt at circumventing the legal framework for the control of medicinal products by labelling them as bath salts or plant food.

There are serious medical concerns that these unregulated products may be as harmful as illegal drugs such as cocaine and ecstasy. Only this week a coroner in Kildare warned of the dangers of head shop products following the tragic death of a 19 year old woman who had taken two head shop products - mephedrone and butylone - together with prescribed drugs, alcohol and heroin. The two products in question have since been controlled under the Misuse of Drugs Acts by the Minister for Health and Children.

I have a further serious concern. It is that head shops are also acting as an unprecedented gateway to illicit drug abuse and criminality, especially for our young people. The House will not be surprised to hear, therefore, that I put little store in the argument that it is somehow wrong to criminalise the sale of these products because in doing so we will increase the market potential for drug traffickers. These products can be equal to controlled drugs in the threat they present to public health and safety. Those who trade in them should not be allowed to escape the application of the law, nor should they be allowed to avail of a veneer of respectability. It is a dangerous trade which operates without regard to the consequences for its customers or society in terms of health and safety, addiction and criminality.

The Bill is part of the Government's multi-pronged approach targeting the activities of head shops. The primary vehicles for regulating psychoactive substances are the Misuse of Drugs Acts 1977 to 2007. On foot of the Government order of 11 May, the Minister for Health and Children made the necessary statutory instruments to make the possession and sale of certain substances subject to criminal sanctions under the Acts. These regulations covered the mainstream of substances then commonly being sold in head shops, including synthetic cannabinoids - SPICE products, benzylpiperazine, BZP, derivatives, mephedrone, methylone and related cathinones, GBL and 1,4 BD. I am advised that following the making of these orders, many of the 102 head shops then open closed but about 36 reopened shortly afterwards, reportedly selling different substances. In the last couple of weeks the tally of shops reopening has risen and I understand the records of the Garda national drugs unit indicate that 48 head shops were trading nationwide on 10 June. Such a trend does not surprise me, but I do not intend to allow it to continue.

Experience shows that new psychoactive substances can quickly emerge. There is a big international market for these products and skilled chemists in places as far away as China are ready and eager to use their expertise to create new products in response to the lure of large profits associated with this market. We have seen how quickly products such as Whack and Amplified have come onto the Irish market following the banning of mephedrone and other such substances by the Minister for Health and Children. The National Poisons Information Centre has received reports on patients presenting to hospital emergency departments with symptoms of extreme agitation and anxiety having consumed this product. The Minister for Health and Children is monitoring the sale of such products with a view to listing them as controlled drugs, if that proves necessary. However, it is clear that there will always be a time lag before such new substances can be made subject to control under the Misuse of Drugs Acts.

The speedy emergence of such substances indicates the need for a more general criminal law catch-all approach to the sale of dangerous psychoactive substances. It is my strong belief such an approach, as contained in the Bill, is necessary to criminalise the sale of psychoactive substances as they emerge. In this way I am acting quickly to prevent the sale of unsafe products, especially to young people. I am stepping in now to stymie any regrowth potential in the head shop industry. The focus of the Bill is on seeking to ensure the sale or supply of substances which have not been specifically proscribed under the Misuse of Drugs Act, but which have psychoactive effects, for human consumption will be a criminal offence. The offence can be prosecuted as an arrestable offence, attracting a penalty of up to five years imprisonment. This puts the offence in the serious category and as such, it will be automatically subject to various powers such as the power of arrest. It is also my intention to ensure such offences under the Bill will be treated as serious offences for which bail can be refused. Accordingly, I will bring forward an amendment to the Bill to add these offences to the Schedule to the Bail Act 1997.

Some criticism has been voiced that the Bill will not work because it does not incorporate a structure to bring together expertise to identify psychoactive substances. This criticism misses two important points. First, under existing arrangements, when considering whether substances should be controlled under the Misuse of Drugs Act, the Minister for Health and Children already has access to expertise on drug misuse and harm. Controlling substances under the Misuse of Drugs Act is an ongoing process which involves national and international co-operation and engagement. Substances are scheduled under the Act in accordance with Ireland's obligations under international conventions and European Council decisions or where there is evidence that they are causing significant harm to public health in Ireland. At national level, the Department of Health and Children works closely with my Department, the office of the Minister of State with responsibility for drugs, the national advisory committee on drugs, the Garda, the Customs service, the Forensic Science Laboratory, the Irish Medicines Board, the Health Research Board and others to monitor emerging trends in the development of new psychoactive substances. At international level, the Department engages with the European Monitoring Centre for Drugs and Drug Addiction and the United Nations Office of Drug Control on international trends in the emergence of new substances and drug control.

I will not, particularly given the state of the public finances, contemplate the duplication of the extensive controls operated under the Misuse of Drugs Acts. The Bill recognises that while the specific identification and control of substances are invaluable as a long-term approach, no matter what expertise is available, it will not deal sufficiently on its own with the creative capacity of the head shop industry to seek to circumvent the law on controlled drugs by constantly developing new products. It is for this reason that I am proposing in the Bill a catch-all approach to ensure the criminal law can deal with those who seek to undermine the controls operated by the Minister for Health and Children on the sale of dangerous psychoactive substances.

In the Bill I am also providing an immediate legal weapon for the Garda and the courts. I am providing that gardaí can apply to the courts for a prohibition order prohibiting any person from selling a psychoactive substance for human consumption where the person refuses to obey a Garda prohibition notice to cease such trade. The procedure in question, unlike a criminal prosecution, is a civil procedure. It is similar to procedures in other legislation such as the Food Safety Authority of Ireland Act 1998 which provide for immediate action in circumstances where public health or safety may be at risk. Accordingly, the onus of proof is on the balance of probabilities which is less onerous than that applying to the prosecution of criminal offences. Breach of the order will be a criminal offence. In addition, I am providing that the court can order the closure of a premises where an order has been breached, in addition to any other penalty that the court may impose.

Under the terms of the Bill, those who sell unregulated potentially dangerous substances for their psychoactive effect will also risk criminal investigation and prosecution. The prosecution may take time to gather the necessary criminal evidence but head shop traders should be under no illusion. Those who thought they were safe to peddle newly-marketed substances may also find themselves in due course defending their position before the criminal courts. The legislation is designed in such a way that it can have no impact on legitimate trade and will not apply to products which can be legally sold for human consumption such as medicines and food.

The Bill is intended to operate in conjunction with a number of other avenues which are being pursued, including regulations under the Misuse of Drugs Acts. A number of such measures are already in train. The activities of head shops are being closely monitored on an ongoing basis by the Garda Síochána and Revenue's Customs service with a view to ensuring no substances which are currently illegal are being sold. The HSE, in association with partner agencies under the drugs strategy, is finalising a national drugs awareness campaign that will focus on the dangers of psychoactive substances available through head shops. The National Advisory Committee on Drugs has been asked to carry out some targeted research in this area. In addition, as part of the multi-pronged approach relevant Government agencies are reviewing existing legislative provisions to establish whether head shops are liable for prosecution under a range of legislation.

The general scheme of the Bill was notified to the European Commission under the technical standards directives. The notification invoked the emergency procedure, which means the usual three-month stand-still period would not apply. I am pleased to say the Commission has accepted the need for urgent legislation on this matter and indicated in the letter it sent confirming the legislation was ruled correct to proceed under the directive that it was to introduce European-wide legislation in this area. In effect, our legislation is ahead of what even the European Commission is doing on a European wide basis.

I turn now to the main provisions of the Bill. Section 1defines terms used in the Bill. Section 2 excludes from the scope of the Bill products which are subject to licence, authorisation or other control. These exemptions include medicinal products, animal remedies, intoxicating liquor, tobacco and food. Controlled drugs, which are subject to the Misuse of Drugs Acts, are also excluded to avoid duplication. The section also provides that the Minister can, by order, exclude other products. This provision has been included in the unlikely event that a legitimate substance inadvertently comes within the scope of the legislation.

Section 3 provides for the offences of selling, importing and exporting psychoactive substances for human consumption. Subsection (1) provides for the offence of selling a psychoactive substance knowing or being reckless as to whether it is being acquired or supplied for human consumption. The definition of selling is broad and, by means of section 1, includes supplying, distributing, offering for sale and being in possession for sale. It includes sale over the Internet or home delivery services within this jurisdiction. Subsection (2) provides that it will be an offence to import or export a psychoactive substance for human consumption.

Subsection (3) provides for a rebuttable presumption that the accused knew or was reckless as to whether the substance was being supplied or acquired for human consumption where, notwithstanding any indication given on packaging etc. that a substance is not for human consumption, the court is satisfied, having regard to indications that the substance may have psychoactive effects, the presence of drugs paraphernalia at the place to which the application relates and whether there is a reasonable alternative lawful purpose for the substance, taking into account its cost and quantity, that it is reasonable to assume the accused had such knowledge or was so reckless. Subsection (4) provides that the court may be satisfied of the matters referred to in subsection (3), notwithstanding any oral or written statement or indication given on packaging etc. that the substance in question is not psychoactive or intended or fit for human consumption.

Subsection (5) provides that it is a defence for a person accused of an offence under this section to prove that he or she is a person referred to in section 6(2),which ensures the lawful professional activities of doctors, pharmacists etc. will be outside the scope of the offence provisions.

Section 4 creates the offence of selling an object knowing it will be used to cultivate by hydroponic means any plant, fungus etc. in contravention of section 17 of the Misuse of Drugs Act 1977. Hydroponic cultivation is the cultivation of plants in liquid containing nutrients, without soil, and under controlled conditions of light, temperature and humidity. This method of cultivation is known to be used for the purpose of growing cannabis indoors and is also known to be one of the products commonly sold in head shops. However, I am aware that this type of equipment can be sold by garden centres for legitimate purposes. For this reason, I am providing that it is only an offence to sell such products when the person knows that the product may be used for the cultivation of substances in contravention of the Misuse of Drugs Act.

In the general scheme of the Bill, I am providing for the offence of selling any pipe or other object made or adapted for use in connection with the consumption of a controlled drug or psychoactive substance. However, in view of the urgency of the Bill, I have decided not to proceed with this provision as there are difficulties to be overcome in dealing with the fact that such objects can have legitimate uses.

Section 5 provides for the offence of advertising a psychoactive substance or object to which section 4applies. Subsection (1) provides that it will be an offence for a person 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 to sell any object for use in cultivating by hydroponic means any plant etc. in contravention of section 17 of the Act of 1977. It will also be an offence to publish an advertisement promoting the consumption of a substance for its psychoactive effect and providing information on how or where a psychoactive substance may be obtained, or to publish an advertisement providing information on how an object may be used to cultivate by hydroponic means any plant etc. in contravention of section 17 of the Act of 1977. Subsection (2) provides that it is a defence for a person accused of an offence under this section to prove that he or she is a person referred in section 6(2),which ensures the lawful professional activities of doctors, pharmacists etc. will be outside the scope of the offence provisions.

Section 6 provides that certain categories of persons, such as doctors, dentists etc. who sell or advertise psychoactive substances will not commit an offence if their actions are lawful for the purpose of their profession.

Section 7provides that a Garda superintendent, or higher, may serve a prohibition notice on a person where he or she believes the person is unlawfully selling psychoactive substances for human consumption, unlawfully selling hydroponic equipment or advertising psychoactive substances. A prohibition notice will specify the activities in respect of which the Garda opinion is held and the reasons for it, will direct the person to cease forthwith the activities specified in the notice and set out the possible consequences of failure to comply with the direction specified in the notice.

Section 8 provides that where a Garda superintendent, or higher, is of the opinion that a person is not in compliance with a direction contained in a prohibition notice, he or she may apply to the District Court, on notice to the person concerned, for an order prohibiting the person from engaging in specified activities. The court may make a prohibition order if, having considered the evidence before it and all the circumstances of the case, it is satisfied the person against whom the order is sought has engaged in the activity specified in the prohibition notice and it is necessary to prevent the person from continuing to engage in such activity. The circumstances which the court may take into account include indications that the substance may have psychoactive effects, the presence of drugs paraphernalia at the place to which the application relates and whether there is a reasonable alternative lawful purpose for the substance or object, taking into account its cost and quantity. The court may decide not to make a prohibition order where it considers that making the order would be unjust in all the circumstances of the case. This is a civil rather than criminal procedure so the proof required will be on the balance of probabilities rather than beyond all reasonable doubt. A person who fails to comply with a prohibition order will be guilty of an offence. A person who is the subject of a prohibition order may appeal the order to the Circuit Court.

Section 9makes provision for the variation of prohibition orders by the District Court. Section 10provides that where a person is convicted of an offence under section 3, 4, 5 or 8(6), the court may make a closure order where the activities are being carried out at specified place. A person who fails to comply with a closure order will be guilty of an offence.

Section 11 provides that the District Court may vary or discharge a closure order on application by the occupier or owner of the place concerned or a Garda superintendent and sets out the procedure for such applications. Sections 12, 13 and 16provide for Garda powers to search suspects and search and seize in regard to places, vehicles, and so on. Section 14 extends these powers to officers of Customs and Excise in cases of unlawful importation or exportation of psychoactive substances. Section 15 provides for an offence of obstructing a Garda or Customs officer in the exercise of his or her functions under the Bill.

Section 17 makes provision for the designation of laboratories for the examination of substances for the purposes of the Bill. The Forensic Science Laboratory is specifically designated as such a laboratory.

Section 18 contains provisions relating to evidence in proceedings under the Bill. Section 19 provides for the disposal of things seized for use in evidence in criminal proceedings under the Bill.

Section 20 provides that a person guilty of an offence under the Bill is liable on summary conviction to a fine of €5,000 or imprisonment for up to 12 months or both or on conviction on indictment to a fine or to imprisonment not exceeding five years or both. It also includes standard provisions relating to offences by bodies corporate and forfeiture of substances on conviction for an offence under the Bill.

Section 21 is atechnical jurisdiction clause. Section 22 is a standard provision relating to expenses incurred in the administration of the Bill. Section 23 extends the powers of search and seizure of Customs officers at ports and points of entry to the State in relation to controlled drugs under section 2 of the Customs and Excise (Miscellaneous Provisions) Act 1988 to psychoactive substances.

Section 24is a standard provision relating to making regulations and laying orders made by the Minister before each House of the Oireachtas. Section 25provides for the Short Title of the Bill.

The House will appreciate that this is a important Bill which has community safety at its heart. It gives a strong message to those who seek to put that safety at risk and who seek to undermine the legal framework of this country in regard to controlled drugs. The clear and unequivocal message of the Bill is that such actions will not be tolerated.

I appreciate the level of support expressed for the Bill. I again thank the House for its co-operation in allowing me to bring it forward as a matter of urgency and I look forward to the debate on its provisions. I appreciate the forbearance of the House in bringing forward this legislation at relatively short notice. It is my intention, with the co-operation of the Opposition in both Houses, to have the Bill passed before the Oireachtas rises for the summer recess.

The Bill has two main provisions. One is the criminal offence of the sale, supply, distribution and so on of psychoactive substances. However, the more important provision is the one that I pushed in my discussions with the Attorney General and my officials, that of the use of the prohibition and closure orders in regard to these premises. This will be the avenue most used by the Garda Síochána in rooting out this evil in our society. It is designed specifically as a civil procedure so that the proof required will not be as stringent as that required in a criminal procedure; the proof required will be on the balance of probabilities rather then beyond reasonable doubt. This will give reasonable notice to the people involved to enable them to challenge the prohibition order or the closure order that may be made by the court.

I very much recommend that the Bill be passed through the House expeditiously in order that we can give the Garda Síochána these additional powers which, ultimately, will be added to the powers of environmental officers under the Misuse of Drugs Act which has been promoted by the Minister for Health and Children and which has had a dramatic effect on the head shop issue in recent times. It is necessary to have this overarching or catch-all legislation to take care of this issue. In this battle we are fighting a moving target in that new products are constantly coming on the agenda.