‘Legal highs’ sales assistants could face five years in jail under new bill

Sales assistants in head shops could face up to five years in jail under the new Criminal Justice (Psychoactive Substances) Bill.

Under the proposed legislation someone who sells a psychoactive substance and knows it will be consumed by a person or is being reckless to that likelihood is committing an offence. If convicted in the district court the person faces up to a year in prison and/or a maximum fine of €5,000. If convicted in the circuit court the person can face up to five years in jail and/or an unlimited fine. This key provision is designed to end the practice in head shops where many mind-altering products are sold to customers but are labelled not for human consumption and are ostensibly to be used as bath salts, plant food or pond cleaners.

The bill says a person is reckless if his or her acts are such that "a reasonable person" would realise the substance will be consumed by a person. The proposals said that in coming to such a conclusion a court can take into account any comments by the assistant, or on the shop’s website, or on the packaging, that the drug may have psychoactive effects or effects similar to controlled drugs.

The bill also targets cannabis growing and consumption equipment.

It said anyone selling any object knowing or being reckless as to whether it will be used to cultivate anything in contravention of the Misuse of Drugs Act by hydroponic means shall be guilty of an offence.

Assistants will be guilty of an offence if they sell any pipe, utensil or other object made for consuming drugs or psychoactive substances. Similar penalties apply. The bill applies to any substance which stimulates or depresses the central nervous system, or results in a "significant change" to motor function, thinking, behaviour or mood.

It does not apply to alcohol or cigarettes or to legal substances used by medics, dentists, vets or pharmacists. The bill allows a garda superintendent to form a "reasonable" view that a head shop is unlawfully selling a psychoactive substance. The superintendent can then serve the owner with a notice in writing stating his or her view and requesting the person to cease selling the products.

Failing this, the superintendent can apply to the district court for an order prohibiting the sale of the product. A civil standard of proof is required (balance of probabilities) and not criminal (beyond reasonable doubt).

The court can prohibit sale of the product for 12 months. It can also issue a closure order to ensure compliance. Breach of such orders is similar to the penalties above.

Source: Cormac O’Keeffe, The Irish Examiner, 07/06/2010