LEGISLATION ALLOWING gardaí to prohibit the sale of head-shop products without having immediate recourse to the criminal courts is expected to be passed before the summer Dáil recess.
The new law will allow gardaí to serve a prohibition notice on the sale of the substances. The issue will only come to court if the order is not complied with. Minister for Justice Dermot Ahern yesterday published the Criminal Justice (Psychoactive Substances) Bill, aimed at curtailing the activities of head shops and the sale of substances not controlled under the Misuse of Drugs Act.
The existing measures in the Misuse of Drugs Act, which includes the recent addition of some head-shop products on the list of controlled drugs, will continue in parallel with the new law.
The Bill is intended to deal with the situation where the chemical composition of products sold in head shops is altered slightly to bring them outside the scope of the existing prohibitions under the Misuse of Drugs Act, while retaining their psychoactive properties.
The Bill makes it an offence to sell, import or export psychoactive substances for human consumption. The offence includes knowing, or being reckless as to whether the drug was for human consumption, even if the packaging says otherwise. It includes sale over the internet or home delivery within the jurisdiction, and also includes the advertising of a psychoactive substance.
It also makes specific provision for criminalising the growing of cannabis indoors.
The Bill provides that a garda of the rank of superintendent or higher may serve a prohibition notice on a person where he or she believes the person is selling, importing or cultivating the substances, directing the person to cease forthwith.
Failure to comply with the prohibition notice will trigger an application from the gardaí to the District Court for an order prohibiting the activity. These will be civil proceedings, so the burden of proof on the Garda will be on the balance of probabilities rather than beyond reasonable doubt, which would be the case if this were a criminal case.
If the person fails to comply with this order, he or she will commit a criminal offence, and in addition the court may make a closure order on the premises concerned. Failure to comply with the court orders will carry penalties of €5,000 or 12 months’ imprisonment on summary conviction in the District Court, or a fine and/or five years’ imprisonment on indictment in the Circuit Court.
The Bill also grants powers to gardaí and Customs officials to go into premises and seize products suspected of falling within the definition in the Bill.
Mr Ahern said the new law was drawn up after consultation with the Attorney General. It followed existing precedents in Irish law in relation to prohibition and closure orders, which exist in the food safety and public health areas.
He said the Bill would be introduced in the Seanad next week, and he hoped it would be through the Seanad by the end of the week.
It would then be brought forward in the Dáil, and the Opposition indicated they supported its rapid passage through the Oireachtas, so he hoped it would be passed by the end of this Dáil session.
Mr Ahern said he notified the European Commission of the Bill on June 4th. While normally the commission took about six months to express its view, in this case it had accepted the urgency of the draft Bill, while reserving its position on its contents. The commission pointed out that new legislation on psychoactive substances was being prepared at EU level.
Fine Gael spokeswoman on the national drugs strategy, Catherine Byrne, welcomed the new legislation. “I sincerely hope that this Bill will close off any remaining loopholes, and that the gardaí will have the necessary resources to police this new law,” she said.