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Connolly, Johnny (2011) Legal update. Drugnet Ireland, Issue 37, Spring 2011, pp. 25-26.

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This update covers drug-related Acts and Bills of the Oireachtas introduced or progressed during 2010 and up to the dissolution of the 30th Dáil (Parliament) in February 2011. It also identifies new substances brought under control within the terms of the misuse of drugs legislation.  

Acts to control new psychoactive substances
The National Drugs Strategy (interim) 2009–2016 (NDS) flagged as an emerging issue the sale in Ireland of psychoactive substances that were not in breach of the existing law, commonly referred to as ‘legal highs’; these substances were generally being sold in ‘head shops’. Actions 14 and 15 in the NDS called for ongoing monitoring of the legislative framework.1 Subsequently, as head shops continued to multiply across the country at a rapid rate, the government gave priority to implementing these two actions.2
The Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order 2010 made on 11 May 2010 declared a range of legal highs to be controlled drugs. Three associated Statutory Instruments signed on the same day gave effect to the Order. Under this legislation, approximately 200 individual legal high substances, which had been on sale in head shops, and which included the vast majority of products of public health concern, were declared to be controlled drugs. They include broadly:
·         synthetic cannabinoids (contained in SPICE products);
·         benzylpiperazine (BZP) and piperazine derivatives (commonly known as ‘party pills’);
·         mephedrone, methylone, methedrone, butylone, flephedrone, MDPV (i.e. cathinones, often sold as baths salts or plant food);
·         gamma butyrolactone (GBL) and 1,4 butanediol;
·         ketamine and tapentadol (substances that have legitimate medicinal use but which can be subject to misuse); and
·         certain narcotic and psychotropic substances that Ireland is obliged to bring under control in order to comply with UN conventions.

The Criminal Justice (Psychoactive Substances) Act 2010 came into force in August 2010. This legislation was enacted to introduce more general control by way of criminal justice legislation to deal with head shop products as they emerged. The Act also gives appropriate powers to the gardaí and to the courts to intervene quickly, by way of prohibition notices and prohibition orders, to prevent the sale of psychoactive substances. 

The Act includes the following provisions:
  • Section 3 provides for the offences of selling, importing and exporting psychoactive substances for human consumption. Section 3 (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.
  • Section 4 creates the offence of selling an object, knowing that it will be used to cultivate by hydroponic means any plant. 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.
  • Section 5 provides for the offence of advertising a psychoactive substance or object to which Section 4 applies.
  • Section 7 provides that a Garda Superintendent (or higher) may serve a prohibition notice on a person where he or she believes that the person is selling, importing or exporting psychoactive substances for human consumption, selling objects for use in cultivating by hydroponic means any plant.
  • Section 20 provides that a person guilty of an offence under the Act is liable on summary conviction to a fine of up to €5,000 or imprisonment for up to 12 months or both, or on conviction on indictment to a fine or to imprisonment not exceeding 5 years or both. 
Following the introduction of the Act, the gardaí visited head shops in early September, only 19 were open and none were selling psychoactive substances (An Garda Síochána, personal communication, 2010). A number of Bills proposed by opposition parties in the Dáil in 2010 in relation to the head shops issue are listed under the heading ‘Lapsed Bills’ below.
Other new Acts applicable to drug offences
·         The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 provides for offences of, and related to, money laundering in and outside the State; to give effect to Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.
·         The Criminal Procedure Act 2010 makes provision for a modification of the rule against double jeopardy in order to allow a person who has been acquitted of an offence to be re-tried in circumstances where new and compelling evidence emerges or where the acquittal is tainted due, for example, to corruption or intimidation of witnesses or jurors or perjury. The rule against double jeopardy provides that no person may be put at risk of being punished twice for the same offence. The legislation applies to a number of drug-related offences.
·         The Road Traffic Act 2010 provides for a reduction in the blood alcohol content (BAC) limit for drivers and also provides powers to assist the Garda Síochána in forming an opinion as to whether a driver is under the influence of an intoxicant (drug or drugs) and to carry out a preliminary impairment test on such drivers.
·         The Criminal Justice (Public Order) Act 2011 prohibits harassment or intimidation of members of the public by persons who engage in begging and confers powers on members of the Garda Síochána to give directions to persons to desist from begging, in certain circumstances such as where they are begging near cash machines or in front of places of business. It also provides for a series of sanctions including fines and possible imprisonment for breaches of the law.
·         The Communications (Retention of Data) Act 2011 requires service providers, those engaged in the provision of a publicly available electronic communication service or a public communication network by means of fixed line or mobiles or the internet to retain data relating to fixed and mobile telephony for 1 year, and data relating to internet access, internet email and internet telephony for 2 years, and provides for disclosure in relation to the investigation of specified offences, including Customs offences.
Status of Bills before the Dáil
Bills before the Dáil at that time of its dissolution on 1 February 2011 are deemed to have lapsed. It is for the new government to decide whether they will be restored in the new Dáil. Current status of relevant Bills is shown in the table below.
1 Department of Community, Rural and Gaeltacht Affairs (2009) National Drugs Strategy (interim) 2009–2016. Dublin: Department of Community, Rural and Gaeltacht Affairs. Actions 14 and 15.
2. Department of Health and Children (2010) Opening statement for meeting of Joint Committee on Health and Children in relation to recent legislation made to control certain substances under the Misuse of Drugs Act 1977. Press release issued 1 June 2010. Available at http://health.gov.ie/blog/press-release/opening-statement-for-meeting-of-joint-committee-on-health-and-children-on-in-relation-to-recent-legislation-made-to-control-certain-substances-under-the-misuse-of-drugs-act-1977/

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