Crown Office and Procurator Fiscal Service Working Together to be the Best Tackling New Psychoactive Substances in Scotland Paul Miele – Procurator Fiscal Depute (Prosecutor)– Crown Office Policy Division

INTRODUCTION The Criminal Law in Scotland Challenges for prosecutors New Legislation Psychoactive Substances Act 2016 Crown Office and Procurator Fiscal Service Working Together to be the Best

MISUSE OF DRUGS ACT 1971 Significant limitations Substance must be controlled Reactive Crown Office and Procurator Fiscal Service Working Together to be the Best

CULPABLE AND RECKLESS CONDUCT Examples of culpable and reckless conduct Throwing a bottle into a crowd of people Criminal recklessness which exposes another person to the risk of infection (Hepatitis, HIV, etc.). No need to prove intention. Injury caused to a person or danger being caused to another person Crown Office and Procurator Fiscal Service Working Together to be the Best

CULPABLE AND RECKLESS CONDUCT How can this been used to tackle NPS? Crown Office and Procurator Fiscal Service Working Together to be the Best

“GLUE SNIFFING” Case law on the prosecution of shopkeepers selling glue to the public Product is legal to possess, supply and sell Circumstances of the sale/supply found to be illegal. Potential to prosecute the sale/supply of NPS using the same legal principles Crown Office and Procurator Fiscal Service Working Together to be the Best

GLUE SNIFFING LIMITATIONS:   Must prove injury – Require forensic/medical evidence in relation to the specific NPS sold   Must prove sold/supplied – May only have enough evidence to prosecute the employee and not the owner of the business selling the NPS   Cost of investigation/Proportionality Crown Office and Procurator Fiscal Service Working Together to be the Best

CONSUMER PROTECTION LEGISLATION Covered in more detail by Craig McClue from Trading Standards Prosecutor’s perspective – Consider all legislation and enforcement agencies – Not just Police New type of crime – Think creatively to tackle the problem Some recent success using the General Product Safety Regulations 2005 Crown Office and Procurator Fiscal Service Working Together to be the Best

PSYCHOACTIVE SUBSTANCES ACT 2016 Will create new offences across the United Kingdom in relation to the production, importation and supply of NPS. Section 2 – ‘Meaning of Psychoactive Substance’ Any substance which – (a) (a) Is capable of producing a psychoactive effect in a person who consumes it, and (b) (b) Is not an exempted substance Crown Office and Procurator Fiscal Service Working Together to be the Best

PSYCHOACTIVE SUBSTANCES ACT 2016 Section 2(2) – For the purposes of this Act a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state; and reference to a substance’s psychoactive effects are to be read accordingly Crown Office and Procurator Fiscal Service Working Together to be the Best

PROVING THAT THE SUBSTANCE IS PSYCHOACTIVE? Forensic strategy being led by Home Office. Currently proposed that they lead on forensic examination of a range of substances commonly found within NPS; The results of testing made available to Forensic Services/Police/Crown; Forensic examination in the usual way of substances recovered by enforcement agencies; Compare with Home Office – Lead evidence from expert(s) able to interpret their data and speak to the substance being capable, if consumed, of producing a psychoactive effect Crown Office and Procurator Fiscal Service Working Together to be the Best

PROVING THAT THE SUBSTANCE IS PSYCHOACTIVE? Forensic strategy being led by Home Office. Currently proposed that they lead on forensic examination of a range of substances commonly found within NPS; The results of testing made available to Forensic Services/Police/Crown; Forensic examination in the usual way of substances recovered by enforcement agencies; Compare with Home Office – Lead evidence from expert(s) able to interpret their data and speak to the substance being capable, if consumed, of producing a psychoactive effect Crown Office and Procurator Fiscal Service Working Together to be the Best

ISSUES FOR PROSECUTORS? Some similarities with proving common law culpable and reckless offences; e.g. In a supply case have to establish that the accused knew, or was reckless, as to whether the NPS is ‘likely’ to be consumed for its psychoactive effects One significant difference– No need to prove injury or risk of injury Crown Office and Procurator Fiscal Service Working Together to be the Best

LESSONS LEARNT SO FAR…. Work closely with all criminal justice partners Think beyond just the criminal law e.g. Consumer protection legislation Demonstrate limitations of existing law – Encourage legislative change if required Crown Office and Procurator Fiscal Service Working Together to be the Best