Schedule 5: Consequential amendments
Paragraph 1 repeals the Intoxicating Substances (Supply) Act 1985 ("the 1985 Act"), and removes reference to that Act from the Regulatory Enforcement and Sanctions Act 2008 ("the 2008 Act"). Section 1 of the 1985 Act made it an offence to sell intoxicating substances to under 18s. The conduct element of the offence in the 1985 Act is covered by the offences of supplying or offering to supply a psychoactive substance in section 5 of this Act.
	Schedule 3 to the 2008 Act specifies enactments for the purpose of the Secretary of State’s and Welsh Ministers’ functions under Part 1 of that Act. Those functions relate to the provision of guidance to local authorities about the exercise of their regulatory functions under the enactments listed in Schedule 3 to the 2008 Act. The purpose of these provisions is to support local authorities in carrying out their regulatory functions in a manner that is effective, does not give rise to unnecessary burdens and that complies with the principles of good regulation, namely that regulatory activities should be carried out in a way which is transparent, accountable, proportionate, and consistent and should be targeted only at cases in which action is needed. Paragraph 1 makes consequential amendments to the 2008 Act to repeal references to the 1985 Act, and adds the Psychoactive Substances Act to the list of enactments in Schedule 3 to the 2008 Act.
	Paragraph 2 amends Schedules 2 (which applies to England and Wales), 4 (which applies to Scotland) and 5 (which applies to Northern Ireland) to the Proceeds of Crime Act 2002 (“POCA”) to add the offences in sections 4 to 8 of the Act to the list of “lifestyle offences” contained in each of those Schedules.
	Part 2 of POCA provides for the making of confiscation orders to confiscate assets gained through criminal activity from offenders, after conviction. The purpose of confiscation proceedings is to recover the financial benefit that an offender has obtained from his or her criminal conduct. The court calculates the value of that benefit and orders the offender to pay an equivalent sum (or less where a lower sum is available for confiscation).
	Section 6 of POCA makes provision for the making of confiscation orders by the Crown Court in England and Wales. In accordance with section 6, where the defendant is identified as having a “criminal lifestyle”, the proceeds of the defendant’s “general criminal conduct” are liable to confiscation. This means that an offender in relation to whom there are reasonable grounds to believe that he or she is living off crime will be required to account for his or her assets, and will have them confiscated to the extent that he or she is unable to account for their lawful origin. The criminal lifestyle tests are therefore designed to identify offenders who may be regarded as normally living off the proceeds of crime.
	Under section 75 of POCA, a person has a criminal lifestyle if he or she satisfies one or more of the tests set out in that section. The first test is that he or she is convicted of an offence specified in Schedule 2 to POCA. Schedule 2 lists the offences which are so closely linked to a life of crime that a conviction for any of them will lead to the defendant being deemed to have a criminal lifestyle for the purposes of the confiscation regime in POCA. By including the offences in sections 4 to 8 of the Act in Schedule 2 to POCA, paragraph 1 ensures that defendants convicted of these offences will be deemed to have a criminal lifestyle and will therefore be subject to the stricter regime in respect of calculating confiscation orders under the 2002 Act. Parts 3 and 4 of POCA make parallel provision for confiscation orders in Scotland and Northern Ireland respectively.
	Paragraph 3 amends Schedule 4 to the Police Reform Act 2002 so as to extend the powers of police community support officers ("PCSO"). Where a PCSO is conducting a search of a person and finds a psychoactive substance, the substance may be seized and retained if the PCSO reasonably believes that it is unlawful for the person to have the substance in his or her possession. This is not of itself a power to search a person, but only a power to seize and detain a psychoactive substance where a search is being conducted under other powers conferred by Schedule 4 to the Police Reform Act 2002. The PCSO may also in such circumstances require the person to provide his or her name and address. The power to require a person to give his or her name and address also applies where the PCSO reasonably believes that the person is unlawfully in possession of a psychoactive substance. Failure to comply with a requirement to provide a person's name and address is an offence (subject to a maximum penalty of a level 3 fine). These powers are similar to those in relation to controlled drugs as provided for in paragraphs 7B and 7C of Schedule 4 to the Police Reform Act 2002.
	Paragraph 4 makes a like amendment to that made by paragraph 2 to Schedule 2A to the Police (Northern Ireland) Act 2003 which sets out the powers and duties of police community support officers in Northern Ireland.
	Paragraph 5(2) amends section 97 of the Licensing Act 2003. That section provides that a constable may enter and search club premises where he or she has reasonable cause to believe that an offence in respect of controlled drugs has been, is being, or is about to be, committed there or there is likely to be a breach of the peace. The amendment to section 97 extends the power of a constable to enter and search club premises where the officer has reasonable cause to believe that an offence of supplying or offering to supply psychoactive substances has been, is being, or is likely to be committed on the premises.
	Paragraph 5(3) amends Schedule 4 to the Licensing Act 2003 so as to add the offences of producing, supplying, offering to supply, possession with intent to supply, importing and exporting psychoactive substances to the list of relevant offences contained in that Schedule. The significance of designation as a “relevant offence” is that a conviction for such an offence (or a comparable foreign offence), unless spent (under the terms of the Rehabilitation of Offenders Act 1974), must be taken into account by a licensing authority in its consideration of an application for the grant or renewal of a personal licence (in accordance with sections 120 and 121 of the Licensing Act 2003). If an existing personal licence holder is convicted of a relevant offence, his or her licence may be forfeited or suspended (see section 129 of the Licensing Act 2003).
	Paragraph 6 adds the offences of producing, supplying, offering to supply, possession with intent to supply, importing and exporting psychoactive substances to the list of relevant offences in Part 1 of Schedule 7 to the Gambling Act 2005. Under Part 5 of that Act, the Gambling Commission has power to take relevant offences into account when considering applications for operating and personal licences. Where an offence is a relevant offence, the Commission may consider such offences during the application process, even though they are spent under the terms of the Rehabilitation of Offenders Act 1974.
	Paragraph 7(2) amends section 75 of the Armed Forces Act 2006 which confers powers on service police officers to stop certain persons and vehicles to search them for specified things, including controlled drugs. The amendment extends this power so that it also covers psychoactive substances. Paragraph 6(4) adds a definition of psychoactive substance to section 77 of the Armed Forces Act 2006.
	Paragraph 8 adds the offences of producing, supplying, offering to supply, possession with intent to supply, importing and exporting psychoactive substances to the list of serious offences in Schedule 1 to the Serious Crime Act 2007. Conviction for, or involvement in, one of these offences can trigger the making of a serious crime prevention order. Serious crime prevention orders are a form of civil order aimed at preventing serious crime. These orders are intended to be used against those involved in serious crime, with the terms attached to an order designed to protect the public by preventing, restricting or disrupting involvement in serious crime.
	Paragraph 9 amends section 34 of the Policing and Crime Act 2009. Part 4 of that Act makes provision for injunctions to prevent gang-related violence (“gang injunctions”). Gang injunctions are a preventative civil order that enable the police or a local authority to apply to a youth court, county court, or the High Court, for an injunction against an individual to prevent gang-related violence. Gang injunctions allow courts to place a range of prohibitions and requirements (including supportive requirements) on the behaviour and activities of a person (aged 14 or over) involved in gang-related violence. These conditions could include prohibiting someone from being in a particular place or requiring them to participate in rehabilitative activities. Section 51 of the Serious Crime Act 2015, which came into force on 1 June 2015, amended section 34 of the Policing and Crime Act 2009 to extend the circumstances in which a gang injunction may be made to include cases where a gang is involved in “drug-dealing activity”. This paragraph amends the definition of drug-dealing activity so that it covers the unlawful production, supply, importation or exportation of both controlled drugs (as now) and psychoactive substances.