Thursday, 26 May 2016

Psychoactive Substances Act 2016
Drug pusher

Back in June 2015, I wrote about the proposed ban on psychoactive drugs and, being the pessimistic old fart I am, I predicted it would be a dogs dinner if it were ever introduced.

I must report that I was wrong. The Act is not a dogs dinner – feeding your dog on food as badly contaminated as the Psychoactive Substances Act 2016 would probably kill it.

It gets off to a bad start for me with section 1, “Overview”. This section literally tells you what the other sections say – it’s pointless and reads like the sort introduction a 14 year old might put at the start of an essay.

Section 2 weirdly defines the meaning of psychoactive substance, useful but this sort of thing used to go in the interpretation section of an act – in fact it does also appear in the interpretation section with a reference that we should go back to section 2. Oh well, I’m just being fussy now – let’s look at what a psychoactive substance is rather than criticise layout.

“2      Meaning of “psychoactive substance” etc

(1)   In this Act “psychoactive substance” means any substance which—

(a)    is capable of producing a psychoactive effect in a person who consumes it, and

(b)   is not an exempted substance (see section 3).

(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 references to a substance’s psychoactive effects are to be read accordingly.

(3)   For the purposes of this Act a person consumes a substance if the person causes or allows the substance, or fumes given off by the substance, to enter the person’s body in any way.”

First, I have to know what the “etc” is doing at the end of the title of the section – did they put that in a draft and forget to remove it? Anyway, a substance is a psychoactive substance if it produces a psychoactive effect in the person who consumes and it is not an exempted substance. A psychoactive effect is one that, “… if stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state …” It’s almost as if they read my blog to get that definition… or stole it from the World Health Organisation like I did.

Check out subsection 3, it’s important. It tells us that consumption is when the substance enters the body in anyway, including as fumes – that’s a big clue that shit’s about to get real.

Section 3 of the Act tells us that the Secretary of State can make regulations to add, vary or remove any substance from the list of those exempted from the ban on psychoactive substances. It also tells us to check out Schedule 1 to see the current list. So, let’s do that.

I won’t reproduce the whole of Schedule 1 as it takes up too much space, but these are the items that are exempted:
1.      Medicinal products (as defined by the Human Medicines Regulations 2012);
2.      Alcohol;
3.      Nicotine and tobacco;
4.      Caffeine; and
5.      Food, including drink.

So, what about things like glue and petrol (or poppers - will nobody think of the poppers)? They can have a psychoactive affect and, as we’ve seen, inhaling fumes is included as a method of delivery. But, I hear you cry they aren’t made for that purpose so they aren’t included in the ban. Okay, well let’s check out the offences.

Section 4 makes it an offence to produce a psychoactive substance. The offence is committed if you knowingly produce a psychoactive substance and you know or suspect it to be a psychoactive substance and you intend to consume it, or you know or are reckless as to whether it is likely to be consumed as a psychoactive substance by someone else.

Let’s take superglue. Can superglue meet the definition of a psychoactive substance? Well, it can when it’s fumes are inhaled. When Loctite make it are they doing so intentionally? Yes. Do they know or suspect it to be a psychoactive substance? Yes – that’s why they have warnings on glues about using them in confined spaces. Do they intend to consume it? No… but, don’t forget they also commit an offence if they know or are reckless as to whether it is likely be consumed. Now, I used to work in a DIY shop and I can tell you I’ve had a few uncomfortable conversations with customers who we suspected might be sniffing glue. We all know people do it and so do the manufacturers. Finally, there is a defence built into the Act where an activity is exempted – but, making glue is not one of them.

So, it would appear that manufacturers of glue are committing an offence from today when the Act came into force! This also applies to petrol companies and anybody else who manufactures substances that fall within this Act. It’s also worth noting that section 56 makes directors and managers of businesses criminally liable for offences, even where the director did not know the offence was being committed and the prosecution can show he did not know due to neglect on his part. The director can then be punished as if he had personally committed the offences!

It’s also worth saying that Schedule 1 exempts medicinal products as defined by the Human Medicines Regulations 2012. We are not the only species on this planet and we have developed medication specifically for non-human animals. I’m no vet but I bet a lot of those medicines will fall within the definition of psychoactive substances and have not been exempted and are thus now illegal (ketamine anyone).

Section 5 criminalises the supply of psychoactive substances and, would appear on my reading, to include shop workers who sell glue or petrol - or vets handing out medication to pet owners . Although, it has to be said the test here is slightly harder for the prosecution to meet because we are now not talking about some abstract person as with the production offence, the prosecution must prove that the supplier knows or is reckless as to whether the person buying it will consume it or give it to someone else to consume.

It is an offence to possess a psychoactive substance in a prison but not out and about on the streets. The Act grants powers to the police to search people they suspect of committing an offence under this Act but, since it is not an offence to possess it on the street, the police do not have the power to search you if they suspect you are merely in possession.

The lack of an offence of possession, while forward-thinking, is interesting because it is an offence to be in possession with an intention to supply. An old trick of drug dealers is to keep just enough drugs on them to supply but a small enough amount to be able to argue they are merely in possession for personal use. Thus, when a dealer is arrested you can expect them to be arguing the drugs are for personal use and thus no crime has been committed.

All of the offences, except possession in a prison, carry a maximum sentence of 7 years imprisonment. Possession in a prison has a maximum of 2 years. So, if you are a director a Loctite or Shell or BP or if you are a vet you may well be committing a criminal offence that could see your business fined and you sent to prison for the better part of a decade!

On a side note, one of the chief failings of all governments has been the idea that we can trust prosecutors to behave reasonably. I do not mean this to be insulting to prosecutors but that is simply not a good basis on which to create criminal offences. We see mission creep time and again in criminal law where a law is made for one purpose and ends up being used for another. The Proceeds of Crime Act 2003 is an excellent example. Designed to tackle major criminals it made the possession of criminal property a crime. Over time prosecutors realised that the definition also fit the facts in all handling stolen good cases, except the Proceeds of Crime Act offence is easier for them to prove! We saw the same thing with the Regulation of Investigatory Powers Act (RIPA), intended to provide a frame work for police to investigate really serious crime we saw it being abused by local councils to spy on people putting their bins out on the wrong day or the wrong thing in recycling bins.

To assume that those in charge of enforcing and prosecuting crimes are now and always will be reasonable people who will follow your intentions, even when you don’t set them out clearly, is the path to tyranny.

Wednesday, 25 May 2016

Are we a nation of prudes?

Aghh Michael Gove's coming... delete, delete, delete

Last year three judges were sacked and one resigned after being caught viewing pornography at work. There was no suggestion that this interfered with their judicial office or any cases that they were hearing. It all happened in private in their own offices and appears to have been detected only because the Ministry of Justice audited computer use by employees. It appears that none of this was regular and, in some cases, occurred on just one or two occasions.

Two of the men were full time judges while the other two were part-timers, which usually means they are still in practice as lawyers when not sitting as a judge.

Staff viewing non-work related websites, including pornography, during work hours is a problem for all employers. When I had employees if I’d sacked everyone who looked at porn once or twice I doubt there would have been anybody left. If I sacked everybody who looked at non-work websites just once a day, I’d definitely have been a very lonely lawyer. There did come a time when we let an employee go because he was viewing porn at work – his was an extreme case. He was doing it in the reception area next to a 12-foot-high and 20-foot-long window that looked directly on to the high street so was potentially visible to anybody passing by. He was warned but ignored the warnings and was eventually sacked.

One of the judges, I’m not going to name him, was accused by the Solicitors Regulation Authority of failing to act with integrity and to behave in a way that maintains the trust the public places in him. He admitted the charge on the basis that he accessed “inappropriate material on two occasions”. There was no suggestion that he had done any criminal act, allowed his work to suffer or done anything that would have an impact on justice.

Another judge is currently battling the Ministry of Justice’s decision to fire him on the basis that he was suffering from severe depression at the time following the breakdown of his marriage. You might think that when an employer discovers an employee is unwell the right course of action is to support that person, especially where there is no suggestion that his actions, again in private, had any impact on his work.

No reports suggest that any of the judges were warned about their behaviour or given an opportunity to correct their behaviour. In one case, the judge who accessed porn on two occasions did so TWO YEARS before his sacking – there is no suggestion in any reports I have read that he had repeated this action in the next two years.

I’m not suggesting that judges should be allowed to wank themselves silly in court or be given free passes to Pleasure Zone, Spicy Tranny and Retro Porn Hub (three of the sites of choice by the judiciary I understand) but a sensible attitude needs to be taken when dealing with people accessing lawful, non-work-related material during work time. I note that nobody has been sacked for accessing Facebook or Twitter and I bet far more judges access that every day than most of these people were looking at pornography. In short, if it weren't for a prudish attitude to porn these men would have been dealt with very differently.

A final thought: we’re always being told that the judiciary should reflect the general population, well now we know that some members of the judiciary are wankers (we all suspected it) just like some of the general population. Another box ticked, the MoJ should be pleased.

Tuesday, 17 May 2016

Judging the judges

Mr Justice Smith

Yesterday the Lord Chief Justice made the most remarkable decision I’ve heard being made about a sitting High Court judge. He directed that Mr Justice Peter Smith must not hear any cases involving any barrister from Blackstone Chambers because of concerns of bias against them.

This all started with an article in the Times penned by Lord Pannick QC, which was critical of Mr Justice Smith. The judge did not take the criticism very well and complained to Anthony Peto QC, the head of Blackstone Chambers.  When Mr Smith did not get a reply he wrote this letter, which first sought to remind Mr Peto that he is a Silk only because Mr Smith gave him a leg up.

The now infamous letter
The letter goes on to say that Smith, J. will not support any members of Blackstone Chambers in future and does not wish to be associated with them. This can be taken two ways, first that he won’t provide references for any applications to the bench or for QC status from that Chambers in future or that he will not find in their favour in court in future. It strikes me that the former is the correct interpretation of that paragraph but it does raise a very real concern that this judge has such a dislike of Lord Pannick that he will take it out on any member of Lord Pannick’s Chambers – it is this that should give everyone very real concern about the impartiality of Mr Justice Smith when members of Blackstone Chambers appear before him.

This is not the first time issues of bias have been levelled at Mr Justice Smith. The article that kicked off the feud detailed an incident during a case involving British Airways where the airline became so concerned about Mr Smith’s bias against them that they asked the judge to recuse himself (step aside from hearing the case).

Then there was a case in 2007 when the Court of Appeal stepped in to remove Mr Justice Smith from a case where the judge had failed to recognise that his personal interests made it inappropriate for him to hear the case. In that case, the Master of the Rolls described Mr Smith’s conduct as “somewhat extraordinary” and Sir Igor Judge said, “had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity”.

I was surprised to see that in the Times today there seems to be no mention of this extraordinary event – it’s reported in the Times’ Brief email as the lead story but I cannot find it on the website even when I search for it. So far as I can tell, only the Telegraph and legal blogs/magazines have even bothered to mention this story. I’d have thought they’d be all over something like this, but the truth is that stories like this require some in-depth journalism and too many in the general media are more interested in quick easy to understand stories.

Now, you might wonder why Mr Justice Smith has been permitted to continue as a judge for so long. The answer is, I suspect, three-fold. First, it is very difficult to sack a High Court judge; secondly, the courts do not like to admit that they get things wrong (although they do every single day) and thirdly there is a dearth of suitable candidates to replace anybody leaving the High Court bench.

Some will say that this is a sign we should make it much easier to sack judges. I disagree. While it may be undesirable to have judges sitting who appear to struggle to dissociate personal feelings from the case before them, it would be far worse for us to allow a system in which dismissing judges it too easy.  Why? Because whether you like them or not. Whether you agree with their decisions or not. Judges provide a strong defence for the citizenry of any nation against governments who would act unlawfully against their interests. You only have to look at countries like Zimbabwe to see the effect on a population of having a weak and subservient judiciary. It is a common complaint that judges hinder governments in their aims too often – ask Theresa May about that – but this is a compliment not a criticism. Judges are there to prevent governments breaking the law and to order them to make things right when they do. A system that allows a judge to be dismissed too easily risks breaking down this defence and allowing a powerful government free-reign over the nation. This is precisely why the judiciary are considered one of the three pillars of government and why the US are so proud that their constitution protects their independent judiciary (we’ll overlook the fact that their Supreme Court is a politically appointed entity that seems to pass judgment as much based on the political affiliation of the judges as on the law).

The senior judges can take action against judges they feel should not be sitting, but we should not make doing so too easy.