Criminal Justice (Psychoactive Substances) Act 2010

1.. Interpretation.

1.— (1) In this Act—

“Act of 1977” means the Misuse of Drugs Act 1977;

“advertisement” includes every form of advertisement, whether or not to the public, in a newspaper or other publication, on television or radio, by display of a notice, by electronic communication, including by means of the internet, or by any other means;

“certificate of analysis” shall be construed in accordance with section 17;

“consumption”, in relation to a psychoactive substance, means to consume the substance (whether or not the substance concerned has been dissolved or dispersed in or diluted or mixed with any other substance)—

(a) orally,

(b) by smoking, insufflating or inhaling it,

(c) by injecting it,

(d) by applying it externally to the body of the person, or

(e) by otherwise introducing it into the body of a person;

“controlled drug” has the same meaning as it has in section 2 of the Act of 1977;

“electronic” includes electrical, digital, magnetic, optical, electro-magnetic, biometric, photonic and any other form of related technology;

“electronic communication” includes a communication of information in the form of data, text, images or sound (or any combination of them) by means of guided or unguided electromagnetic energy, or both;

“hydroponic”, in relation to cultivation, means the cultivation of plants in liquid containing nutrients under controlled conditions of light, temperature and humidity, without the use of soil;

“Minister” means the Minister for Justice and Law Reform;

“place” includes—

(a) a dwelling or other building,

(b) a structure or stall of any kind,

(c) a vehicle;

“psychoactive substance” means a substance, product, preparation, plant, fungus or natural organism which has, when consumed by a person, the capacity to—

(a) produce stimulation or depression of the central nervous system of the person, resulting in hallucinations or a significant disturbance in, or significant change to, motor function, thinking, behaviour, perception, awareness or mood, or

(b) cause a state of dependence, including physical or psychological addiction;

“sell”, in relation to a substance or object, means to sell or supply or cause to be sold or supplied, whether for profit or otherwise, either directly or through another person and includes—

(a) to offer for sale, to invite to buy, to distribute or to expose or keep for sale, supply or distribution, and

(b) to possess for any of the purposes referred to in paragraph (a);

“supply” includes giving without payment;

“vehicle” means any conveyance in or by which any person or thing, or both, is or are, as the case may be, transported which is designed for use on land, in water or in the air, or in more than one of those ways, and includes—

(a) a part of a vehicle,

(b) an article designed as a vehicle but not capable of functioning as a vehicle,

(c) any container, trailer, tank or any other thing which is or may be used for the storage of goods in the course of carriage and is designed or constructed to be placed on, in, or attached to, any vehicle.

(2) In this Act, a reference to the commission of an offence includes a reference to an attempt to commit the offence.

2. Exclusions from application of Act.

2.— (1) This Act shall not apply to—

(a) a medicinal product within the meaning of section 1(1) of the Irish Medicines Board Act 1995,

(b) an animal remedy within the meaning of section 1 of the Animal Remedies Act 1993 authorised in accordance with—

(i) the European Communities (Animal Remedies) (No. 2) Regulations 2007 (S.I. No. 786 of 2007), or

(ii) Regulation (EC) No. 726/2004 of the European Parliament and of the Council of 31 March 2004 ^1 as amended,

prescribed or sold for administration to an animal in accordance with those provisions,

(c) intoxicating liquor within the meaning of section 77 of the Licensing Act 1872,

(d) a tobacco product within the meaning of section 2 of the Public Health (Tobacco) Act 2002,

F1[(da) a nicotine inhaling product, within the meaning of section 2 of the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023,]

(e) food within the meaning of section 2 of the Food Safety Authority of Ireland Act 1998 which has been placed on the market in compliance with food legislation within the meaning of that section,

(f) unless otherwise expressly provided for in this Act, a controlled drug, or

(g) such other substance, product, preparation, plant, fungus or natural organism as may be specified by order under subsection (2).

(2) The Minister may, after consultation with the Minister for Health and Children and such other Minister of the Government as he or she considers appropriate, by order declare that this Act shall not apply in relation to a substance, product, preparation, plant, fungus or natural organism specified in the order and so long as an order under this subsection is in force, this Act shall not apply in relation to the substance, product, preparation, plant, fungus or natural organism so specified in the order.

3. Prohibition of sale, etc. of psychoactive substances.

3.— (1) A person who sells a psychoactive substance knowing or being reckless as to whether that substance is being acquired or supplied for human consumption shall be guilty of an offence.

(2) A person who imports or exports a psychoactive substance knowing or being reckless as to whether that substance is being acquired or supplied for human consumption shall be guilty of an offence.

(3) Where in any proceedings for an offence under subsection (1) or (2), it is proved that a person sold, or imported or exported, as the case may be, a psychoactive substance, and the court is satisfied having had regard to—

(a) any indication given by the person concerned orally or in writing, by means of the internet or by electronic communication or any indication otherwise given by means of any packaging, leaflets, notices or by any other object or thing that the substance concerned may have psychoactive effects or that it may be consumed in a way similar to a controlled drug,

(b) any indication in or at any place to which the proceedings for the offence relate that suggests the consumption of controlled drugs, including the presence of any apparatus, equipment or thing which may reasonably be associated with the consumption of controlled drugs, and

(c) whether it is reasonable to find that the substance concerned is being sold or imported or exported, as the case may be, for an alternative lawful purpose, taking into account the cost and quantity of the substance being sold or being imported or exported, as the case may be,

that it is reasonable to assume that the person knew or was reckless as to whether the substance was being acquired or supplied for human consumption, it shall be presumed, until the court is satisfied to the contrary, that the person had such knowledge or was so reckless.

(4) A court may be satisfied under subsection (3) notwithstanding any oral or written statement made, any indication given on any packaging, label or leaflet or any indication given by means of the internet or by any electronic communication, that the substance to which the proceedings relate is not a psychoactive substance or is not intended or fit for human consumption.

(5) Without prejudice to any other defence that may be available, it shall be a defence for a person against whom proceedings for an offence under subsection (1) or (2) are brought to prove that he or she was, at the time of the alleged offence, a person referred to in section 6 (2).

4. Prohibition of sale of certain objects.

4.— A person who sells any object knowing that it will be used to cultivate by hydroponic means any plant in contravention of section 17 of the Act of 1977 shall be guilty of an offence.

5. Prohibition of advertising of psychoactive substances, etc.

5.— (1) A person who publishes or displays or causes to be published or displayed any advertisement knowing or being reckless as to whether the advertisement—

(a) indicates an intention—

(i) to sell or import or export a psychoactive substance for human consumption, or

(ii) to sell any object for use in cultivating by hydroponic means any plant in contravention of section 17 of the Act of 1977,

(b) promotes the consumption of a substance or a combination of substances for its or their, as the case may be, psychoactive effects and provides information on how or where a psychoactive substance may be obtained, or

(c) provides information on how an object may be used to cultivate by hydroponic means any plant in contravention of section 17 of the Act of 1977,

shall be guilty of an offence.

(2) Without prejudice to any other defence that may be available, it shall be a defence for a person against whom proceedings for an offence under subsection (1) are brought to prove that he or she was, at the time of the alleged offence, a person referred to in section 6(2).

6. Sale, etc. of psychoactive substances permitted in certain circumstances.

6.— (1) This section applies where a person is—

(a) a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007,

(b) a registered dentist, being a person whose name is entered for the time being in the Register of Dentists established under section 26 of the Dentists Act 1985,

(c) a registered nurse, being a person whose name is entered for the time being in the register of nurses established under section 27 of the Nurses Act 1985,

(d) a registered pharmacist, druggist or pharmaceutical assistant, being a person registered in a register set up under section 13 of the Pharmacy Act 2007, or

(e) a member of such class of persons as the Minister may, after consultation with the Minister for Health and Children and such other Minister of the Government as he or she thinks appropriate, by order designate.

(2) It shall not be an offence for a person referred to in subsection (1) to sell, import or export a psychoactive substance or to publish or display or cause to be published or displayed any advertisement relating to a psychoactive substance if—

(a) the sale, importation or exportation or advertisement of the substance concerned was for the purpose of his or her profession, and

(b) the sale, importation or exportation or advertisement of the substance by that person in the course of his or her profession was otherwise lawful.

7. Prohibition notice.

7.— (1) A member of the Garda Síochána not below the rank of superintendent may serve personally or by registered post a written notice (in this Act referred to as a “prohibition notice”) on a person if he or she is of opinion that the person is, at any place, engaged in the activity of—

(a) selling—

(i) a psychoactive substance for human consumption,

(ii) any object for use in cultivating by hydroponic means any plant in contravention of section 17 of the Act of 1977,

(b) importing or exporting a psychoactive substance for human consumption,

(c) publishing or displaying or causing to be published or displayed any advertisement which—

(i) indicates an intention to sell or import or export a psychoactive substance for human consumption or to sell any object for use in cultivating by hydroponic means any plant in contravention of section 17 of the Act of 1977,

(ii) promotes the consumption of a substance or a combination of substances for its or their, as the case may be, psychoactive effects and provides information on how or where a psychoactive substance may be obtained, or

(iii) provides information on how an object may be used to cultivate by hydroponic means any plant in contravention of section 17 of the Act of 1977.

(2) A prohibition notice shall be signed and dated by the member of the Garda Síochána concerned and shall—

(a) state that he or she is of the opinion that the person is engaged in an activity referred to in subsection (1) and the reasons for that opinion,

(b) specify the psychoactive substance, object or advertisement to which the activity relates and in respect of which the opinion is held and may, where appropriate, specify any place where, in his or her opinion, the activity concerned is taking place,

(c) direct the person to cease forthwith selling or advertising, as the case may be, the substance or object specified in the notice or, as may be appropriate, importing or exporting the substance specified in the notice,

(d) specify the possible consequences of failure to comply with the directions specified in the notice.

(3) A direction specified in a prohibition notice shall have effect immediately upon service of the notice.

(4) The service of a prohibition notice under this section in respect of a person shall not prevent the service of a further prohibition notice under this section in respect of the person.

(5) A member of the Garda Síochána not below the rank of superintendent may at any time withdraw a prohibition notice if he or she is satisfied that the notice was served in error or is incorrect in some material respect.

8. Prohibition order.

8.— (1) Where a prohibition notice has been served on a person and a member of the Garda Síochána not below the rank of superintendent is of opinion that the person is not in compliance with a direction contained in the notice, he or she may apply to the District Court for an order (in this Act referred to as a “prohibition order”) prohibiting that person from engaging in or continuing to engage in the activity of selling or advertising, as the case may be, such substance or object as may be specified in the order or, as may be appropriate, importing or exporting such substance as may be specified in the order.

(2) An application for a prohibition order shall be made on notice to the person who is the subject of the prohibition notice concerned and to any other person in relation to whom the court directs that notice of the application be given.

(3) The court may make a prohibition order in respect of a person if—

(a) having considered the evidence before it which shall, in the case of an application in respect of the activity referred to in paragraph (a)(i) or (b) of section 7(1), include a certificate of analysis in respect of the substance concerned, and

(b) having had regard to all the circumstances of the case, including, in the case of an application in respect of the activity referred to in paragraph (a) (i) or (b) of section 7 (1), the matters referred to in subsection (4),

it is satisfied that—

(i) the person concerned has, after the service of the prohibition notice, sold or advertised, as the case may be, a psychoactive substance or an object specified in the notice served on him or her or, as may be appropriate, imported or exported a substance specified in the notice served on him or her, and

(ii) it is necessary to prevent the person from engaging in or continuing to engage in the activity concerned,

unless the court considers that making the order would be unjust in all the circumstances of the case.

(4) When considering an application for a prohibition order which relates to the activity referred to in paragraph (a)(i) or (b) of section 7(1), the court shall, notwithstanding any oral or written statement made, any indication given on any packaging, label or leaflet or any indication given by means of the internet or by any electronic communication, that the substance to which the application relates is not a psychoactive substance or is not intended or fit for human consumption, have regard to—

(a) any indication given by the respondent orally or in writing, by means of the internet or by electronic communication or any indication otherwise given by means of any packaging, leaflets, notices or by any other object or thing that the substance concerned may have psychoactive effects or that it may be consumed in a way similar to a controlled drug,

(b) any indication in or at any place specified in the application that suggests the consumption of controlled drugs, including the presence of any apparatus, equipment or thing which may reasonably be associated with the consumption of controlled drugs, and

(c) whether it is reasonable to find that the substance concerned is being sold or imported or exported, as the case may be, for an alternative lawful purpose, taking into account the cost and quantity of the substance being sold or being imported or exported, as the case may be.

(5) A prohibition order—

(a) shall specify the psychoactive substance, object or advertisement to which the order relates and, where the court considers it appropriate to do so, may specify any place to which the order relates,

(b) shall specify the grounds upon which the order is made,

(c) shall provide for notice of it to be given to any person who appears to be or is affected by it, unless the court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts,

(d) shall state that it shall come into effect immediately upon service of the order, and

(e) may contain such terms, conditions and restrictions as the court considers necessary or expedient in the circumstances.

(6) A person who fails or refuses to comply with a prohibition order shall be guilty of an offence.

(7) A prohibition order shall remain in force unless—

(a) it is varied or discharged on appeal under this section, or

(b) it is varied under section 9.

(8) An appeal shall lie to the Circuit Court from the making of a prohibition order but the bringing of such an appeal shall not affect the operation of the prohibition order, unless the court or the Circuit Court, on application to it in that behalf within 7 days from the date of the making of the order, makes an order staying its operation pending the determination of the appeal.

(9) A prohibition order shall not operate to affect any lawful obligations of any person under any lawful contract or agreement and those obligations shall continue to be determined in accordance with the contract or agreement, as the case may be.

(10) The making of a prohibition order under this section shall not in respect of a person prevent the making of a further prohibition order under this section in respect of the person.