London -
The Government's legal highs ban will come into force on Thursday, but some forensics experts, pharmacologists and lawyers have said it is unworkable.
Ministers have said they want to eradicate the “abhorrent trade” in drugs that can cause seizures, collapses and - in rare cases - death, and in 2013, legal highs had been tried at least once by 670 000 British 15 to 24-year-olds.
The Psychoactive Substances Act is intended to crack down on the trade by introducing jail sentences for anyone selling or making a drug “capable of producing a psychoactive effect”.
But critics have already insisted the new law will just force users, who are often among the most vulnerable in society, to turn from head shops to street dealers and the criminal underworld.
Man on ventilator after legal high
A 24-year-old man was in a critical condition on Wednesday night after taking a legal high dubbed Clockwork Orange.
Police confirmed that in Rochdale alone, nine people in the past four days have collapsed and fallen ill after suffering adverse reactions to the substances.
The most serious of the casualties remains on a ventilator in intensive care having suffered a cardiac arrest after he was found collapsed in Milnrow Road on Tuesday.
Superintendent Alistair Mallen said: “It is a really worrying development over a short space of time. There are issues with legal highs and the impact right across the country, people dying as a result of taking this.”
Now it has been claimed that under the ban, it will also be extremely difficult to secure criminal convictions against this new wave of drugs pushers.
The Independent has been told that concerns about the law's enforceability - which reportedly influenced the decision to postpone its implementation from 6 April - have been greatly increased by the release of the Government's “forensic strategy” outlining the testing regime underpinning the Act.
This was published, with relatively little fanfare, on 20 May, six days before the ban was due to come into effect.
After analysing the strategy, Atholl Johnston, a clinical pharmacology professor at Queen Mary University of London who also runs a forensic testing laboratory, said: “Someone has been tasked with coming up with a strategy for an unworkable bill. It's nicely written, but vague.”
He added: “We have had a lot of discussions within the various forensics groups, particularly the London Toxicology Group. We have had a lecture from a representative of the Home Office's Centre for Applied Science and Technology. We are just not sure how this is going to work.”
Mr Johnston said that securing a criminal conviction under the new law would be “Not easy at all.”
He said: “There is a massive amount of uncertainty here. How are we going to get the certainty needed to get a legitimate criminal prosecution?”
Of particular concern, he said, was whether the two in-vitro (test tube-based) tests outlined in the Government's forensic strategy would be enough to a prove a substance was capable of producing a psychoactive effect to the criminal court standard of “beyond reasonable doubt”.
Similar anxieties had already been flagged up to the Government by the Advisory Council on the Misuse of Drugs (ACMD) before the Act became law.
In a letter written on 2 July last year, Professor Les Iversen, chairman of the ACMD, told Home Secretary Theresa May: “The psychoactivity of a substance cannot be unequivocally proven. The only definitive way of determining psychoactivity is via human experience ? Such proxy measures [as in-vitro tests] may not stand up in a court of law.”
After receiving the Home Secretary's reply, Mr Iversen wrote to her again, on 13 July, stating: “I would like to re-iterate that psychoactivity in humans cannot be definitively established in many cases in a way that would definitely stand up in a court of law where a high threshold of evidence is required. There is currently no way to define psychoactivity through a biochemical test, therefore there is no guarantee of proving psychoactivity in a court of law.”
Mr Iversen said the ACMD could only help in “formulating advice on how to predict that a substance is likely to be psychoactive”.
Echoing the ACMD's concerns about in-vitro testing, Mr Johnston said: “Lots of things happen in the body that just don't happen in a nice clean test tube system. Lots of things might interact with the drug before it can get to receptors [in the brain].
For a start, the substance might not be absorbed into the blood properly. And will it cross the blood-brain barrier?”
He was backed by Dr Stephanie Sharp, a forensic pharmacologist and the co-founder of the Glasgow Expert Witness Service, who told The Independent: “Any self-respecting barrister could find an expert pharmacologist to counter any attempt to 'prove' psychoactivity using these tests.”
She said: “There are many instances of apparently active substances in-vitro that have no or a different effect in man.”
The inability of the law to keep pace with the rapid rate at which rogue chemists are making new legal highs has also prompted concerns about whether the Act will work in practice, with critics pointing to the example of Ireland, which introduced a similar ban in 2010.
The Irish ban has so far resulted in only a handful of prosecutions, while the European Commission has reported that between 2011 and 2014 Ireland experienced Europe's second largest increase in legal high use among 15 to 24 year-olds.
A spokesman for the Irish Justice Department told The Independent the ban was enforceable, but admitted: “The emergence of new psychoactive substances happens at a pace that presents a challenge.”
With new legal highs now hitting European streets at an estimated rate of at least 100 a year, Rudi Fortson QC, a barrister who has specialised in legal high issues, said he doubted the UK ban would be able to keep pace.
He said the new law might appear to solve the problem by introducing a simple blanket ban on anything capable of producing a psychoactive effect, (with exemptions for food, medicines, alcohol, caffeine and tobacco).
In practice, however, any new drug not already in the UK's library of Certified Drug Reference Standards would have to be tested before a criminal court could accept it was psychoactive.
“I would have thought that will be time consuming,” said Mr Fortson.
“Given that drugs are altered so quickly and in so many different ways, will the reference standards be able to keep pace?”
The main problem with the legal highs ban, he added, was that “The principal issue of proving psychoactivity will be fraught with difficulty.”
He pointed out that the Government's forensic strategy itself admits in-vitro testing “will not provide information on the potency of a specific compound”.
Although the strategy also insists the law does not require a determination on drug strength, the barrister said defence lawyers might still be able to raise doubts about potency and query the inability of the tests to measure it.
“I don't think the Government is entitled to water down what is meant by 'capable of producing a psychoactive effect',” he said.
“If the Government means 'an effect no matter how slight' that is an absurdity. If the effect is so slight a user wouldn't notice it, or if it just makes him blink a little more without getting high, is it proportionate to prosecute?”
“In terms of criminal offences,” he concluded.
“There are real problems with the Act. The Government can expect these cases to be strenuously defended and any prosecution is likely to encounter significant difficulties.”
The Independent