Pubdate: Wed, 11 May 2016
Source: Guardian, The (UK)
Copyright: 2016 Guardian News and Media Limited
Author: Mark Wilding


Critics Say Antisocial Behaviour Powers Are Already Criminalising 
Vulnerable People, Ahead of All-Out Ban

It's just before 11.30am on a Friday morning and I'm standing in 
Lincoln's city square. With me are police officers Andy Balding and 
Joel Dowse, an antisocial behaviour officer at Lincoln council. We're 
on the lookout for socalled legal highs  synthetic substances that 
have similar effects to illegal drugs but have not yet been banned by 

We scan the square for anything suspicious. Everything looks in 
order, but I'm assured it hasn't always been this way. Balding points 
to a line of benches overlooking the river. "Along here used to be 
really bad," he tells me. I hear stories about groups of people on 
legal highs terrorising shopkeepers and falling unconscious in the 
street. Right now, all I can see is an elderly man peacefully 
contemplating the river.

However, around the corner, we spot a man slumped over outside a drug 
treatment centre. When Balding and Dowse approach him, it becomes 
clear he is in a bad way - his eyes are half closed and his speech is 
slurred. On being told he is going to be searched, the man 
reluctantly volunteers a small plastic bag, emblazoned with a Bob 
Marley motif, containing a small amount of green herbs. It looks like 
"spice"  a synthetic version of cannabis also sold as "black mamba". 
The man's details are taken and he is told he will be issued with a UKP75 fine.

In April last year, Lincoln became the first local authority in 
England and Wales to ban legal highs, otherwise known as new 
psychoactive substances (NPS). The ban was made using a public spaces 
protection order (PSPO), under powers given to councils in October 
2014 to tackle antisocial behaviour. Lincoln used the legislation to 
ban any use of what it calls "intoxicating substances", which 
includes alcohol and legal highs, in its town centre. It has issued 
eight fines.

By contrast, the government has tied itself up in knots over its 
psychoactive substances bill, which will make it a criminal offence 
to produce or supply any kind of NPS. Originally due to be 
implemented on 6 April, the bill was delayed amid concerns that the 
current definition of a psychoactive substance cannot be legally 
enforced by the police. The bill is now set to reach the statute book 
at the end of this month, introducing new powers for the police and 
prison sentences of up to seven years.

In the meantime, many more councils have followed Lincoln's lead. 
Freedom of information requests submitted by the Guardian have 
revealed that at least 15 local authorities have introduced a PSPO 
aimed at tackling legal highs, while 15 more are in the process of 
doing so. Councils say they have been forced to take action while the 
government flounders. But critics have questioned whether PSPOs 
represent an effective solution, or are legally sound.

In Blackpool, the council's deputy leader, Gillian Campbell, 
highlights an incident two years ago when three teenagers were 
hospitalised after smoking a legal high substance while at school. 
"At that point I thought, 'we're going to do something about this'," she says.

The council tackled the problem in a number of ways. Shops selling 
the substances were sent warning letters and threatened with 
community protection notices (CPNs), which  much like PSPOs  prohibit 
individuals or businesses from engaging in certain activities.

"We've been quite fortunate that they've all taken heed," says 
Campbell. But that wasn't the end of the issue. "My problem is you 
can still buy it on the internet. We've got rid of the shop problem 
in Blackpool but people can still get out of their faces on it." In 
March, Blackpool introduced a PSPO banning a range of activities in 
the town centre, including legal highs.

This trend has attracted the attention of charities such as Release, 
which campaigns for a public health-led approach to drugs policy. Its 
executive director, Niamh Eastwood, says: "The concern we have is 
that it allows criminalisation in by the back door. There's no 
independent judicial oversight on the process."

Eastwood also raises concerns that the orders could have unintended 
consequences. "Often the people using these publicly are the very 
vulnerable  the homeless," she says. "The idea that we are using this 
arbitrary approach to dealing with what is a very complex issue is 
really just increasing the risk to the vulnerable."

Sam Barstow is Lincoln's service manager for public protection and 
antisocial behaviour. He says the PSPO was always aimed at tackling 
problem behaviour linked to legal highs, rather than seeking to 
criminalise individuals. "This was never about us casting any 
judgment on people's choices to use these substances," he says. "This 
was about us identifying that when you use these substances on the 
street, it has these knock-on effects."

To this end, anyone found breaching the order is offered the chance 
to engage with the drug treatment charity Addaction in return for a 
reduced fine. No one has yet taken up the offer. Charlotte Greenley, 
a substance misuse worker at Addaction, explains why that might be 
the case. "You have to be ready for recovery," she says. "When you're 
given a chance to pay the money or have to hear about why the things 
you are taking are so bad for you, some people aren't ready for that."

Nevertheless, since the PSPO was introduced in Lincoln, Addaction has 
seen a considerable drop in both the number of referrals for legal 
highs from pharmacies, social workers and homelessness services, and 
the number of people using them at its needle exchange. In the first 
three months of 2014, the charity saw 33 referrals for legal high 
use. Over the same period this year, there were just six.

Greenley believes that the ban has helped to reduce the numbers using 
legal highs. She says the PSPO has been successful because it was 
introduced as part of a package of measures. Lincoln and Blackpool 
used CPNs and an education programme that involved working with local 
treatment charities to run awareness courses at schools and community 
venues to teach people about the risks of legal highs and combat 
their reputation of being safe. Two shops selling legal highs in 
Lincoln have closed, after pressure from the council.

While the figures suggest the ban has been effective, doubts remain 
over whether it is legally sound. Mark Jackson, senior lawyer at the 
solicitor firm Cohen Cramer, says the nature of NPS and PSPO offences 
may mean councils have so far managed to avoid judicial scrutiny. 
"People who are intoxicated and caught by the authorities on the 
street are not in a position to mount a legal challenge," he says.

In Lincoln, Barstow says: "We were very cautious about this because 
we knew it was relatively groundbreaking. When those first ones went 
to court [for non-payment of the fine] we were watching them very 
closely. But all the prosecutions to date have been successful."

What he means by success is that the magistrate's court has sided 
with the council and found the defendant guilty of non-payment of a 
fixed penalty notice, and there has been a decrease in antisocial 
behaviour linked to legal highs since the ban was introduced. But the 
question of how fines for PSPO breaches are paid is one of the key 
criticisms of the legislation.

More often than not the fixed penalty notices aren't paid, and so are 
followed by a court hearing and a prosecution. Barstow says: "Those 
prosecutions make it clear we're serious about the order. But it's 
that point of [street] enforcement that provides the real value. 
We're not looking to criminalise people, we're looking to reduce harm."

As we walk alongside Lincoln's River Witham, we meet two men smoking 
cigarettes under a bridge. Balding and Dowse nod at them in 
recognition. "Do you want to smell it?" jokes one of the men, waving 
a roll-up in our direction. "He was our first prosecution," explains Dowse.

In at least one case, Lincoln's message that legal highs won't be 
tolerated seems to have got through.



The new law to ban legal highs that the UK government is introducing 
later this month will fail because proving psychoactivity requires 
expensive testing of the substances in specialised laboratories. A 
legal logjam awaits. Yet these drugs are not safe: users of synthetic 
cannabis are 30 times more likely to end up in the back of an 
ambulance than users of natural cannabis. The spice epidemic seizing 
Britain's prisons must be addressed urgently. But if you can't 
control drug supply and use in prisons, legality really should be 
your last concern.

These drugs are bought by users who are often young, or on low 
incomes. If the government really wanted to protect these groups it 
would regulate and control the supply of all drugs, seizing control 
of the market from organised crime gangs, and then spend the tax 
revenue from sales, and reduced enforcement expenditure, on 
education, treatment and prevention strategies. Mike Power
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MAP posted-by: Jay Bergstrom