We have amendments on section 5.
Misuse of Drugs Bill, 1984: Committee and Final Stages.
Section 1 to 4, inclusive, agreed to.
SECTION 5.
I want to query section 5. I know that there is an amendment in the name of Senator Brendan Ryan. There seems to be some controversy regarding this section. My view on it for what it is worth is that it is quite clear, it is advocating or encouraging, whether expressly or by implication, the use of——
I have a difficulty here. We should not go on to the section until we have the amendments dealt with. Unfortunately Senator Brendan Ryan is not here.
Is it open to another Member to move an amendment tabled in the name of a Senator?
With his permission, yes. If the Senator tells me she has his permission I am happy enough.
He drew my attention to the matter and I have no doubt that I would have his permission if he were here.
I will accept that. Amendments Nos. 1 and 2 are related and I suggest they be taken together. I might mention that these amendments were put in Senators' pigeonholes this morning. We have had them circulated here again, so I hope everybody has received them. Senator Robinson on amendments Nos. 1 and 2.
I move amendment No. 1:
In page 5, subsection (1) (a), line 6, to delete "book,"
Standing rather suddenly in the shoes of Senator Brendan Ryan, but being aware of the concern that he felt in tabling these amendments, the primary concern is about the broad scope of the provision of section 5(1) (a) as it stands. It prohibits a person from printing or causing the publication of, or selling or distributing any book, periodical or other publication and so on. The second amendment — and it is a related one — uses very wide language which "advocates or encourages, or might reasonably be supposed to advocate or encourage, whether expressly or by implication" and so on. At this stage it would be helpful if the Minister could indicate who is to suppose, if the person has not intended, for example, to advocate or encourage — how would that reasonably be supposed to advocate or encourage and how can it be done by implication? Could the Minister give us practical examples of how this section would operate, because at present it seems to be very broadly cast?
I must apologise for my tardiness but I am not accustomed to such speed in this House in passing through major legislation.
If you had not good friends you would have fallen.
If I were not so youthful I would have fallen on my way up here also. I am sure that Senator Robinson has said virtually what I would have liked to say. We all acknowledge the objective of this section of the Bill and the Minister had some documents in his possession yesterday which illustrated clearly the need for a precaution such as this to enable us to avoid further manifestations of the drug culture. As I said on Second Stage, it must be within the wit of parliamentary draftsmen to deal with such a problem without putting in one of these catch-all phrases which effectively incorporate everything. Off the top of my head I would list The Teachings of Don Juan by Carlos Castenada as a classic example of a book which quite clearly would be illegal under this section because, whether implicitly or expressly I am not too sure, it advocates the use of mescalin which I am sure is a controlled substance. A series of books all of which are regarded as — to use a phrase which is used so often in this House — minor classics at this stage are sold in millions. I do not particularly like those books. The conclusion reached towards the end of the last of a number of them is anything but hope-inspiring. Nevertheless, they are widely on sale and I suspect that we and, perhaps, South Africa would be the only countries outside the Eastern bloc which do not allow them to be sold. Another book, Confessions of an English Opium Eater is regarded as a classic in its own right. A large volume of literature associated particularly with rock music contains a continuous debate particularly about cannabis and the merits or demerits of using it. To suggest that cannabis is such a serious threat that all references to possible pleasurable consequences of using it must be deleted or that any publication which contains a reference to it must be prohibited is not the same as saying that one disapproves of its use. A publication which contains either articles or letters which advocate the use of cannabis is quite clearly covered by this section.
I am particularly worried at the suggestion that things could advocate expressly or by implication. "Expressly or by implication" is such a wide-ranging term that, considering the mentality of some of our judges, the prospect of what their interpretation of it would be is quite horrendous. Therefore, I have drafted an amendment. I do not for one second suggest that it is the entire solution because we must recognise that this Bill came from the Dáil. I have not yet had an opportunity to read the report of Committee Stage in the Dáil because it has not yet been published; therefore we do not know the full background to this matter. We had less than 12 hours in which to draft this amendment, so I had to rush it through. There cannot be many books not in themselves recognised works of literature which would be on such wide sale as to be regarded as any sort of encouragement to drug culture. Therefore I suggest the removal of the reference to books.
Since what the Minister seems to have in mind are those magazines that are virtually entirely devoted to the advocacy of a drug culture, to the use of drugs and to explaining to people where and in what circumstances they can gain access to drugs, I suggested, in amendment No. 2, the words: "expressly advocates either in its entirety or greater part." That would cover the circumstances listed by the Minister. That range of publications, including, I regret to say, the daily newspapers have articles which may well argue in favour of the legalisation of cannabis. I cannot see how you can argue in favour of the legalisation of cannabis, for instance, without effectively, expressly or by implication advocating its use. You can hardly argue for the legalisation of something if you think that nobody should use it. Therefore, my amendments are an attempt to meet what I recognise to be a necessary requirement in regard to documents which encourage the drug culture, and at the same time to ensure that there is not interference with normal freedom of communication or the introduction of yet another form of censorship which in this case is quite unnecessary. I will be interested in the Minister's response to these two amendments. I apologise to him again for my absence.
I was trying to hold the fort for Senator Brendan Ryan, but I cannot support the amendment. I cannot see in it the meaning that Senator Ryan is taking out of it. The section provides that:
A person shall not print, publish, cause or procure to be printed or published, sell or expose or offer or keep for sale, distribute or offer or keep for distribution, any book, periodical or other publication which either—
(i) advocates or encourages, or might reasonably be supposed to advocate or encourage, whether expressly or by implication, the use of any controlled drug prescribed for the purpose of this section,
That is clear and specific enough. It does not extend to what has been suggested here. It does not extend to records, video or films or anything like that. I would not like to see the kind of publication that the Minister had here last night distributed in this country. If we are serious about this problem, if we are really concerned about the unfortunate addicts and that they should not be involved in the learning process through books, that they should not be allowed to get hold of any publications in which this is encouraged, then every possible loophole must be examined and we must hope that the scene will improve as a result of that. Every avenue must be watched. This problem is growing. This section of the Bill is quite legitimate.
I support the point made, that in areas where the degree of literacy is not high the videos referred to by the Minister, tapes and other educational aids should be made available to communities where the incidence of drug taking is high. Communities might learn more from those sources than from books and so on. We should pursue that action. As far as publications are concerned, I support the section. Perhaps Senator Ryan is taking a wrong view. I do not see the problems that he thinks are there and I cannot support his amendment.
I support what Senator Fallon has said. I think Senator Ryan is worried because the word "book" is contained in this section and he feels that it is too broad a term, while he supports what the Minister is trying to do in regard to periodicals and other publications. At the end of his contribution he talked about freedom of communication. That worried me a little. It is this area of communication which worries us. In some states in the US and other permissive societies it seems there is freedom of communication about cannabis. We should not have freedom of the kind which would be highlighted in the glossy magazines as giving some sort of cult effect to a drug that we consider should not be legalised. If we accept the freedom of communication we have to quantify in our minds what that communication should be. Certainly in this area of the glamorisation of drugs of any description I would have the gravest reservations. If as in the terms of the subsection, a book advocates or encourages or might reasonably be supposed to advocate or encourage, I would not be in favour of allowing it to be on sale freely.
Cannabis was mentioned specifically and if we have regard to Dr. Deasy's interpretation of this drug it is appropriate that we describe the short-term effects of cannabis which are quite evident apparently. They include talkativeness, hilarity, euphoria, relaxation and a feeling of being slowed down, all commendable in their own way. The same effects can be achieved from alcohol. Interference with the memory has also a short-term effect and the learning ability of students is impaired. Dr. Deasy says there is interference with the clarity of speech and the use of irrelevant words and ideas — I suppose this could be applied to some of the contributions in this House, maybe mine for all I know — and impairment of co-ordination. He says that cannabis can be a contributory factor in car accidents particularly when combined with alcohol. Dr. Deasy says that the adverse reactions to possible high does of THC are fearfulness, confusion, anxiety, paranoia and hallucinations and the long-term effects of prolonged use of the drug can be chronic bronchitis, coughing, hoarseness, laryngitis and pre-cancerous changes in the lungs. Such changes could also be associated with tobacco.
Dr. Deasy goes on to point out that persons at risk include those suffering from cardio-vascular disease and preexisting mental disorders and that there are the possible effects on reproductive and immune systems which one takes into account in the possible treatment of anybody with a particular ailment whether it be a virus or otherwise, that if they are taking cannabis their normal natural inbuilt immunity would be impaired, and that heavy use of the drug almost always leads to abuse of heroin afterwards.
When we are talking about cannabis we should consider the short-term and long-term effects of the drug. We should ban any publication, whether it be a book or otherwise, that would somehow lend glamour to the use of that drug, though in some states it is not considered to be an addictive drug. In a society in which we are faced with so many other problems, we should do everything possible to tidy up the area of communication while still accepting the principle of the freedom of communication. We must be careful as to what communication we want the freedom of. I consider the section to be appropriate as it stands.
Lest there be any confusion, we are not talking about cannabis. The list of effects read by Senator Ferris seemed to me to be a fairly good summing up of the effects of alcohol and tobacco. There is also a dreadful capacity in the scientific establishment to use different base lines to compare different factors. There is a justifiable concern among many researchers about the short-term and long-term effects of cannabis, but there is also an extraordinary ability to explain away, for instance, the possible damages from low-level radiation from nuclear waste because in one case the establishment take the view that it is necessary and in another case it takes the view that it is not necessary. I would just like to get rid of the idea of objective science. Science is as much a servant of the way a society thinks as is any other area of activity in society. Nevertheless, I do not favour the legalisation of cannabis and would not encourage young people to use cannabis largely because of the social sides connected with it, the kind of culture that they would be drawn into, the company they would be brought into and the sort of contacts they would make, apart from the arguable physiological and psychological damage it can do. There are enough things we take risks with without encouraging people to take more risks.
I am not talking about cannabis but about how, as the Minister for Justice has spoken about at great length in our previous debate, you balance the need to protect society with the right of people in society to free access to information.
What Senator Fallon and Senator Ferris are saying, effectively is that those books I talked about should be banned. Fair enough: if that should be the case, then let it be. The Teachings of Don Juan is on sale virtually in every bookshop in this country. The first of a series of books tells of the experiences of a man on mescalin and of what happened to him. It tells about him in a very positive way. There is no question that by implication it is encouraging people to use what is a prescribed substance or a controlled drug.
If that is what is involved let us be clear about it. The bookshop should be cleared of that and of other things. Bob Dylan, for instance, has a song of which the chorus line is that everybody should get "stoned." There were probably eminent Members of this House and of the other House singing along with Bob Dylan last Sunday when he sang that song. The words of that song are effectively proscribed by the section. Many of those record albums contain the words of those songs on the sleeve.
It does not refer to records.
I do not think that it is the Minister's intention or that of Senator Fallon or of Senator Ferris that that record sleeve should be banned, but I do believe we have a lunatic fringe in this country who have on numerous occasions attempted to put the clock backwards in many other areas. A device like this could be very useful to them in attempting to suppress what they would see as a rather subsersive culture of rock music. It is quite possible to deal with the problem that is being addressed in this section in a very coherent fashion without having this all-embracing section which covers virtually every possible reference in a favourable light to any controlled substance. I do not think that is what we need or that it is what we should have. This is a reasonable response to both arguments.
Senator Fallon seemed to ignore the terms, "expressly or by implication". There is no running away from that. The words "by implication" extend the possibility of what is covered by this section well beyond the sort of magnazines the Minister is talking about. Those magazines expressly and clearly advocate and encourage the use of controlled substances. Passing references in newspaper articles, occasional references in songs or on record sleeves and so on are covered because by implication they effectively suggest that the taking of drugs is good. Indeed, the ICCL suggest that the videos being made by the Department of Education or any educational material to do with drug abuse which will in passing obviously refer to the pleasurable experiences resulting from the use of cannabis could be interpreted, by implication, as encouraging the use of controlled substances. That is an extreme interpretation but there is a problem there for many of us. I do not think it is good enough to say we want to do something about the problem and therefore, we leave the section the way it is. We all want to do something about the problem but we must do so in a way which draws a balance between the rights of the individual and the need to protect society.
I share some of the misgivings expressed by Senator Ryan and I hope very much that the Minister in his reply will be able to allay the doubts and concerns we have. The magazine High Times which was referred to last night is one that I have not had access to but from what we have heard, I should be perfectly happy to see that publication removed from circulation. I understood from what the Minister said that it is a mail order magazine rather than one which is freely available on book shelves. It is perfectly proper and correct that a magazine of that nature, which overtly and absolutely appears to be in the business of recommending the taking of drugs, should be removed from circulation.
There is a difficulty in this area in that books which have a literary merit or which otherwise have a great deal to recommend them would in some draconian fashion be removed from circulation. All of us who care about censorship in society would want to receive very firm assurances from the Minister that in doing the proper and correct thing he was not over-reacting to what we all recognise as a very serious problem. Yesterday evening we finished very late and it is nice to see the Minister looking so fresh here again this morning. I think we finished at 11.55 p.m. but we talked at some length about the fact that many of the young people who are involved in drug taking and drug usage are illiterate and that the written word, which is covered by this section, has no relevance, meaning or significance for them. They draw their mental sustenance from pop music and the videos which accompany pop music.
The Minister in his reply to the Second Stage recognised that, functionally, these young people are largely illiterate which is one of the tragedies of our society. They are more in tune with sound and vision as a means of gaining information. It is not that I would like to see the provisions in this section extended to cover pop songs and videos but, at the same time, if as is stated in this section it is being introduced because we are aware of the power of the media to influence our thinking and everyday actions, I wonder what the Minister feels he will be able to do to deal with songs. For example, I am thinking of one song called "Cocaine" by Eric Clapton which was very popular some years ago. The chorus of this song is "If you want to get high; if you want to get by — cocaine". This is just one of the many songs which has a very strong, pulsating message and rhythm going through it advocating the use of drugs. The logic of this section should extend to pop songs like this. It obviously will not but, nevertheless, we must be concerned about this kind of influence which is directed at young people whom we all care about and for whom this legislation is largely designed. Yet it seems that we are powerless to deal with the implications of the kinds of culture with which they are in tune.
I am concerned that we discuss and evaluate this. It is delicate and sensitive. I do not have the answer to it. I do not know what we can do. Censorship as such bothers me because it strikes at fundamental freedom in society. At the same time we must protect, as far as possible, our young people from commercial exploitation and exploitation by pushers and drug users. It is a difficult one and I would like the Minister to make reference to it in his reply.
I thank Senator Brendan Ryan for drawing my attention and the attention of the House generally to the all-embracing nature of this provision. I do not think it struck most of us on first reading the Bill. The points raised by him caused me concern. The section would effectively preclude any article from which it could be deduced that the use of drugs could in any way be tolerated. Even a reputable scientific analysis of a drug presumably would be precluded under this provision, not to mention the host of other ancillary items which are trivial but entertaining, which we read in our newspapers and to which young people have access, and also the various records and rock or pop periodicals which other Senators have made reference to.
I know the House wholeheartedly agrees with the Minister's intention in this section. We seem to be alienating young people in many instances. They feel alienated enough. The recent European election voting figures, and seeing the actual age levels who participated in that exercise conveyed the fact to me that more and more young people are alienated by, for want of a better word, the establishment.
We must be careful about how we deal with matters like this. We must not spread a draconian net that would preclude anything that is close to young people. I do not for one minute want to advocate that articles like the one the Minister has with him now could in any way be justified. They certainly could not and I know that it is the intent of this section to preclude overt advertisements and encouragement for controlled substances. I do not think there is any disagreement in this House about that. While I would look with concern at the amendment put down, I hope the Minister will be in a position, in responding to these comments and fears, to put the minds of Senators at rest.
Perhaps as much as other Senators I have probably seen the end results of the effects of drugs. I have had a great interest in the organisation of Alcoholics Anonymous for many years. I share the misgivings of Senator Ryan but, at the same time, we need to be very careful that we do not do anything which would, in any way, diminish the possibility of curbing the epidemic of drug-taking which is now upon us in Ireland. It appears to be particularly prevalent in the city of Dublin.
Anyone who has spent time with people who have been on drugs or who are trying to wean themselves off drugs or have made many abortive attempts to get off drugs, will be aware of the despair and misery caused not only to the persons in their more lucid moments but also to their families and to the community to which they belong apart from the almost incredible difficulty of getting a person safely across the Rubicon of being a drug-taker and living in that sub-culture. If I was asked at this moment which do I see to be the greater evil, I would have to argue that rather than risk a further explosion of drug-taking in Ireland or an extension of what has already taken place, we would have to think long and hard about diluting the words of the Bill. That comes very hard from someone who has spent much of his life trying to champion the cause of free expression in a very unfree society.
It is a great pity in a way that we cannot make a distinction between the use of cannabis and the use of hard drugs. As Senator Ferris highlighted for us, cannabis is a substitute for cigarette smoking on the one hand and alcohol-taking on the other. As with both, it can be abused and as with both it can be detrimental to health. Of course, the argument has always been that if people are smoking cannabis frequently and regularly, particularly the young, they are quite likely to be smoking in an atmosphere which encourages them to participate in taking stronger and much more harmful drugs.
There is a tendency in Ireland to become a little hysterical when talking about these taboo subjects. I hope I live to see the day when, in a slightly calmer assessment of the whole situation, it might be possible to think of cannabis as being looked upon as something quite separate from the hard drug scene and to have a more liberal and less fearful attitude twoards it. However, at present such is the drug scene and such are the terrible penalties to their health and their future for people who become involved in it that in taking it very seriously we may, in this instance, seriously have to consider a compromise on what certainly would be my ideal — an ideal which I would like to have felt free to share with Senator Ryan in relation to the whole area of civil liberties, right of private judgment and freedom of expression.
A drug addict stayed in our home over months, going into years. His argument was "Why should I not be free to destroy my own life if I wish?". I suppose, extending the arguments of freedom to the final point, he was making a case which might be hard in some way to refute. Nevertheless, if we are concerned about the social implications of living in some sort of collectivity, a community, a wider or broader society and if we are very troubled by the implications of drug taking and where it is leading society, let us remember that it is a symptom of many other things as well as being a cause in itself. I speak with some difficulty in opposing my campaigning friend, Senator Ryan, but I would not be able to support his amendment.
I am amazed at the attitude of some Senators, quite honestly. Either we are for the elimination of drugs in this country or we are not.
That is not fair.
An Leas-Chathaoirleach
Senator Fallon to continue, without interruption.
It is as simple as that. Certainly, we have a duty to plug every loophole, as the Minister is endeavouring to do. We have a duty, because of this terribly serious problem, to help out in every way we possibly can. If the Minister sees this as a further aid, then he should be supported and I am certainly supporting it totally.
We are dealing with two amendments. The first is to delete in line 6 the word "book". I am of the view, which the parliamentary draftsman would share, that if we delete that word "book" it will weaken the section very considerably. The prohibition would be entirely confined to the words "periodical or other publication" and then we run into a definition problem. The two words "other publication" would carry the risk of being interpreted by the courts as printed matter akin to a periodical and thus could be conceived as not being reading matter in what might be ordinarily styled book form. That is the strong advice I have received on the section, at which I looked long and hard before bringing it to Government. The general intention of the whole section, if the amendment, the deletion of the word "book", were accepted would be thwarted in a very significant way.
The second amendment tabled by Senator Brendan Ryan is to delete, in lines 8 and 9 "advocates or encourages, or might reasonably be supposed to advocate or encourage, whether expressly or by implication". The Attorney General is not known to be a man of repressive views on such matters, having suffered enough for his views on many issues over the years but on this issue I am assured that so difficult is it to secure convictions under this formulation generally that it has to be reasonably broad. If one were simply to adopt the substitute phrase as suggested here by Senator Ryan, namely, "expressly advocates, either in its entirety or greater part," then the provision would be so loose that the courts would be in a rather impossible interpretative position. The whole argument would then centre around whether a particular advocacy was entirely or in part within a particular periodical. That again would pose considerable difficulties.
I share strongly the view that our literature, our publications and our general culture should not reflect particular repressive majority or indeed minority attitudes in terms of the printed word. That is why I expressly put in the section — and draw the attention of the House to it — the use of any controlled drug prescribed for the purposes of this section. I am referring, in particular, to hard drugs, heroin, for example and cocaine which is becoming fashionable now in the Dublin area, particularly among our upper income groups. It is now the more fashionable drug. Of course, it is equally appallingly dangerous. In effect, the Minister of the day, under regulations made under the 1977 Act will prescribe that with regard to publications relating, say, to heroin or to cocaine, this section will be brought into operation.
There is, unfortunately, a wide international mail order pushing of drugs and it is substantial now in Ireland. The consumption of controlled drugs in this country is a multi-million pound business. Some people are very wealthy as a result. Tobacco and drink are larger businesses — we have to keep a sense of proportion. I am told that in this country we consume in a day £2 million worth of alcohol and another £1 million in cigarettes. For every heroin addict who dies here, about four thousand a year die from smoking-related illnesses. Publications on hard drugs going around in this country are posted to young people.
I share the view of Senator Brendan Ryan that many young people are alienated from the establishment particularly when they have no employment and a consequent loss of personal dignity in society. There is a widespread mail order incursion into here advocating particular types of equipment. They tell how to get your heroin gramme electronically weighed by a piece of equipment in your pocket which can be bought for a few pounds, so that you will not be cheated when you pay £10 for your three-hourly shot. That type of equipment is advertised in publications. This section would only apply to particular advocacy of the use of equipment such as cocaine kits, information on how to grow mushrooms on one's kitchen window, which can be done, and information regarding where to buy portable testing kits. There are also the more esoteric publications, many of them of low literary value, who advocate a drug society, who print on their flyleaf the message that dope is the only hope for society and who firmly advocate it in their publications That kind of publication would be read by young impressionable persons and it would gain considerable notoriety.
The intention in such instances, as far as possible and without being oppressive, is to ensure that such books, periodicals, publications and advertisements which currently are not subject to control are diluted in terms of their impact. There are safeguards in the section. It will be a defence for a defendant to prove that he could not by the exercise of reasonable care have known or ascertained the contents of the book, periodical or other publication. This is set out in subsection (5) (c).
I hope that the controlled drugs prescribed for the purposes of this section will be on a narrow front. I have some difficulty with regard to this matter. Although it may sound appallingly oppressive, if I had my way I would prohibit advertising in relation to alcohol and tobacco. We cannot forget that 25 per cent of patients in hospital are there as a result of these two drugs and the cost is phenomenal. In addition, the human cost is quite incredible.
I share the view expressed by Senator Bulbulia that there is a danger of overreacting. I have attempted to confine this to controlled drugs specifically prescribed for the purposes of the section. These drugs are specified in the Schedule to the 1977 Act. As Senator Brendan Ryan rightly pointed out, I hope the lunatic fringe will not perceive it to be anything else because at this stage some people would prohibit the consumption of water——
Unless it was holy water.
I was coming along quite well with the Minister until he mentioned the Schedule to the 1977 Act. Is he saying that all the drugs listed in that Schedule will be prescribed under this section or that the drugs that will be prescribed will be taken from that Schedule?
Whereas the drugs are scheduled under the 1977 Act, the particular prescribing for the purposes of this section will have to be done by the Minister of the day. To that extent they are deemed to be controlled drugs under the 1977 Act but they will have to be specifically prescribed. I admit there will be some difficulty in relation to cannabis. However, I am particularly concerned about the proliferation of hard drugs such as heroin and cannabis and a number of other drugs such as dicanol which was a particular problem in Cork. However, these drugs are not generally written about in an encouraging way.
Section 5 (1) (a) (i) uses the words, "...otherwise than in the course of professional treatment by a practitioner,". We have to be careful about that because the editor and his colleagues on the Irish Medical Times might find themselves before the courts because that journal and other medical journals advocate large consumption of drugs for professional treatment. They have to be excluded from the import of the section.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 5 agreed to.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
The Act of 1876 and the Misuse of Drugs Act, 1977, should have been aligned in some way. The customs and excise people should have the same powers as the Garda in relation to this problem. Last night I suggested that in the area of customs and excise there should be a drugs squad similar to that in the Garda Síochána. They are first in the firing line, they operate at ports and airports. There should be a separate unit within the customs and excise to deal specifically with drugs. I would welcome anything that would help to solve this problem and I am convinced that if this step were taken it would be of considerable help. Perhaps the Minister would comment on that point.
This section highlights the parity of control by customs officers and the Garda. We have to be very careful about this. The customs officers have substantial powers of arrest and of seizure. People do not often appreciate the extent of their powers which go back to 1876. Up to now there was not much point in their exercising their powers because the fines were so small.
Is it purely on a direction from the Revenue Commissioners?
Yes, at the request of the Revenue Commissioners. Where the customs officers effect a conviction on their own work they will have parity in respect of fines with cases of ordinary convictions under the Misuse of Drugs Act which are initiated in the first instance by the Garda. To that extent the role of the customs officers is on parity with that of the Garda Síochána for the first time. I am not so sure that we should have within the customs and excise section a separate drugs section. We are a small country and we tend to fragment and specialise in many areas to such a degree that we have so many small groups catering for particular aspects that our efforts become diluted and diffused. For example, every member of the Garda in Templemore gets basic training in relation to drug abuse and practises it as part of his ordinary Garda work.
Customs officers are required to cope with illegal importation of all kinds of drugs and commodities of a prohibited or limited nature. I know there has been a demand for a special drugs squad within the customs but this would mean providing a chief customs officer and a deputy chief customs officer of the drugs squad and a new super-structure would be built up within that structure. I do not think this is necessary.
At each point of entry into the State or where internal work is done, the customs officers should have available to them every modern convenience and incentive to cope with their difficult work in terms of coping with the drug situation. That means, for example, better liaison between them and the Garda Síochána, better electronic liaison, personal relationships and integration of service between the two. That would create far greater effectiveness than setting up a parallel customs drugs squad with the Garda Drugs Squad and we would finish up with a political drugs squad of Deputies who are specialists in the area.
A diffusion of effort would not be beneficial and to that extent I am not in favour of it. The Revenue Commissioners could then argue that one could equally set up a whole range of segments within the Customs and Excise sections, such as specialists dealing exclusively with rabies. While I share the view that there should be specialists in the customs area dealing with the importation of heroin, cocaine and other hard drugs, designations of special squads is not necessary in this area. People complain that there are 45 members in the Garda Drugs Squad but there are 10,000 gardaí who deal with the question of drugs as part of their ordinary work. The Garda Drugs Squad specialise in it in a particular way and that is adequate for the purposes of our control measures.
Question put and agreed to.
SECTION 8.
An Leas-Chathaoirleach
Amendments Nos. 3 and 4 are related and may be discussed together.
I move amendment No. 3:
In page 10, subsection (1), line 3, to delete "may" and substitute "shall".
I do not and cannot agree with handing over to the courts the discretion to decide whether persons convicted under a range of drug offences should be remanded for medical and other assessments pending sentence. The argument for leaving the element of discretion is apparently to avoid certain well-known or substantial drug pushers being able to use this device to escape the full rigours of the law.
There must be other procedures for dealing with that, in particular that bail can be refused to people only if the Garda can satisfy the courts that they are liable to abscond. If the Garda have a reasonable case that the person is liable to abscond then bail can be refused. This is one of the two recognised grounds for refusing bail.
We are suggesting that the assessment in the first case of whether a person is dependent on drugs should be made not by a specialist who knows about these things but by a member of the Judiciary who would decide whether a person should be subjected to such an assessment before passing sentence. I will quote the words that I would like to have deleted: "if, having regard to the circumstances of the case, the court considers it appropriate so to do". In other words the court — and in this case it would obviously be the judge or the district justice — will decide whether it is appropriate in a particular case that a person should be referred for the various assessments and there is a very wide-ranging and worth while form of assessment contained in the Misuse of Drugs Act, 1977. I have to confess that I was unaware of how wide-ranging the assessment was until this Bill drew it to my attention.
We are being asked now to take away that obligation and substitute a discretionary element. However when one sees the astonishing statements produced last week by a judge on Far Eastern rituals as a justification — at least implicitly — for his decision in the case of a certain young lady, I would hate to think what an individual like that would do in a drugs case if he was to follow his Far Eastern precedents. Our Judiciary are not qualified or competent to make those sort of assessments.
Very often they reveal a most extraordinary level of prejudice in their comments which often follow on their judgments. If they are to be left with discretion in an area like this to decide whether a person should or should not be sent for assessment, then I do not believe that they can be trusted to do it humanely and compassionately.
There is a large graduation within the range of those people who could be technically called drug pushers, from the large organised criminal conspiracies run by one or two people where large fortunes are being made by people who are not directly involved in the use of drugs or indeed even indirectly involved, down to the pathetic individual on every street corner in areas of Dublin desperately trying to raise the money to finance his or her own addiction and who sell drugs to achieve that. It is not possible to encompass them all within one sweeping definition. Therefore, it is a question of how we make the distinction between them. The amendment proposed by the Minister to the Principal Act would effectively leave the distinction to be made by what I would regard as the group least competent to make it, the Judiciary, and would prevent us from ensuring that it was made by the medical and other experts who are the most competent to make it. It is a classic case of using a sledge hammer to crack a nut by extending this element of discretion into all cases in order to meet a couple of exceptional circumstances. My two amendments propose that in the new area to do with the abuse of the Customs Act, the present position should be retained, that in all cases where a person is convicted the court shall remand the person for such period as it considers necessary. Amendment No. 4 provides that the proposed modification of the Principal Act should not be carried into law and that the present compulsory remand and assessment should be retained. I do not believe that we can leave a matter of such fundamental human importance in the hands of a Judiciary who lack both the medical expertise, training in the social sciences and very often, regrettably, the human experience to make a proper assessment that needs to be made in the first place.
I fully support the comments made by Senator Ryan. If people are to be assessed under the proposed legislation, they should be assessed adequately, competently and professionally. One would not expect the medical profession to make legal assessments, and by the same token, one would not expect the legal profession to make medical assessments. In that context, I wholeheartedly support what Senator Ryan has said.
I have some reservations about the present format of the Bill in the context of Senator Ryan's amendments. There was merit in the original form of the Principal Act whereby the court had an obligation to see that these persons were the subject of a report of a medical or social nature before the court decided on a sentence or a form of treatment. I see that difficulties could arise from this, but they are not insurmountable. It is desirable that there should be some continuity in the way courts deal with convicted persons. The provision in the Principal Act led to a standardisation of the way the courts deal with such persons.
I can see clearly that it might not be desirable to have a mandatory report produced in the case of persons convicted of drug pushing when it was clear that that is what they were and where there was no confusion whether they were pushers and addicts but were simply pushers. It is desirable that persons who are convicted and are abusers should be the subject of a mandatory report prior to their future being decided by the courts. This view is shared by many people dealing with drug abusers who are more knowledgeable in this area than I am. I raise this point because this matter is of some significance and, hopefully the Minister will respond to it.
I understand some problems arose last year when somebody before the courts absconded when the report was being prepared. This may have led to the particular formulation we have before us today. That kind of problem can be dealt with by remand in custody pending a report if the person is an abuser as well as a pusher. It would be a pity if we dropped the idea of a mandatory report in the case of persons convicted of drug abuse who are also addicts.
I should explain the background to this section. I recall this matter very well because, as Senator O'Mahony pointed out, it was an integral part of the 1977 Act. As chairman of the committee at that time I remember the argument between the then Minister for Health, Mr. Brendan Corish, and the then Opposition spokesman on Health, Deputy Haughey. We came to the view that there should be a mandatory medical examination for persons convicted of illegal consumption and usage of drugs. Even then we made exceptions: for example, we did not require a mandatory medical examination for the first or second offence for possession of cannabis for personal use, and rightly so. It was felt that a problem could emerge and a medical examination would be necessary prior to sentence for further convictions. In practice, that has been the situation over the past seven years. Nowadays, the defence of the accused has been rebutted in court; the facts have been proved in relation to drug pushing; and there is clear evidence before the court that the drug pusher is far from being an addict but is very careful about his own personal lifestyle.
The Attorney General makes a particularly strong point, as do the Task Force on Drug Abuse and the Drugs Squad, that the convicted drug pusher must be remanded for another eight days for the commencement of a medical examination, putting a particular onus on certain individuals of the health boards, probation officers in the case of a minor pusher, welfare officers and so on. In that context the mandatory provision should be withdrawn and there should be an optional provision. I have acceded to that view and in the light of the circumstances and the information before the court in each particular case, the court should decide if there should be a formal medical report on the accused before conviction. This a rather unique provision in European legislation. We are evolving a system of having one judge responsible for drug cases before the courts, one State solicitor specialising in this area, and the courts would clearly exercise the option of requiring medical reports. It is part of the ordinary defence of pushers and addicts in our courts today that medical information is laid before the courts, that the unfortunate individual has been to Jervis Street Hospital on x number of occasions, that his doctor is X, Y or Z and that his medical information is given to the court. Then the court has to give the addict the option, on conviction, of going to Coolmine for two years or, as in a recent case, accepting nine months prison sentence. God knows it is arguable as to what type of medicine that will be to him. Admittedly, he may have had access to drugs but we are anxious that, particularly in drug pushing convictions, there clearly should be discretion open to the courts before sentencing. There cannot be summary conviction, those people would have to be brought back to the courts again and the whole process of certification and medical examination would have to be invoked again. Discretion is advocated by most of the people involved, I was loath to accept it initially but after consideration I agree that there is a case for reducing the mandatory provision.
The Minister has made a cogent case but it rests, unfortunately, on the assumption that our Judiciary by and large are people of balance and discretion and a number of other things which most markedly they have not displayed on occasions in recent times.
An Leas-Chathaoirleach
I do not think you can make any such remarks about the Judiciary in this House. You have done it twice, so it is time to check you.
I will put it in more parliamentary language. It presumes an expertise. Perhaps the Minister can give me information on the numbers of cases that have been brought to his attention of persons being convicted of serious offences, like drug pushing, who had to be subjected to a mandatory assessment and who turned out quite clearly not to have needed it. How many of those convicted of drug pushing offences turn out not to have any drug related history? It is easy to say the medical profession are put out by this, but if somebody is convicted it should not be too difficult for a member of the medical profession to say it quite clearly. The Minister spoke about beginning a process of assessment after eight days. If somebody is clearly not addicted to drugs that should be immediately apparent to a member of the medical profession. In other words, if it is difficult to be sure, it should not be left to a member of the Judiciary to make a decision which is difficult even for the medical profession. It would be regrettable if people who are seriously addicted to heroin and to other hard drugs were to become victims of judicial indiscretion by virtue of this proposal.
I do not have precise figures. As the Senator is aware, there are increased convictions of persons for drug pushing and that would be my preoccupation. We need treatment for addicts and convictions for drug pushers. That should be our general approach. There is not a mandatory provision in other legislation to require formal medical reports on everybody. From experience there is a strong view on the part of the Attorney General and the Garda Síochána that when a person manifestly is known to be a drug pusher, and it is known to the courts — all this, of course, is post conviction: only then do the courts enter into it — that it should devolve on the courts to impose sentence. Increasingly, as the Judiciary become aware of the need for treatment and the problem of pushing, I have no doubt the Judiciary would seek medical reports. However, they should not be obliged to do so in relation to every person who comes before them.
At all times I am anxious to protect the rights of the accused. I want to see the accused get the benefit of all doubts. I think the 1977 Act imposed a rigour on the Judiciary, because prior to deciding on a sentence for drug pushing there was a mandatory requirement on them.
For these reasons, and in the light of the substantial advice we have received, the prospect is one of mandatory option. Increasingly, as we know, people convicted of possession of drugs for personal use confront the court with the problem of designation of treatment rather than designation of incarceration. When a person comes into court a self-confessed heroin addict and he has been before the court before and is known to the judge and the Drug Squad to be a heroin addict, the judge has to remand the person for eight days after conviction for yet another medical examination. Invariably in such cases there is human medical tragedy and that part of a person's defence is known to the judge and there need not be a further hearing.
However, drug pushers have been laughing at us and have adopted forms of defence which have been questionable. With due respect to the medical profession, there is always a doctor who will find some unique aberration in the lifestyle of the drug pusher which will be given as medical evidence in the court in mitigation of sentence. That may be so because some addicts become pushers in order to finance their habit. However, to force the court in all circumstances to require medical evidence after conviction would be unique. For instance, it does not apply to persons convicted under the Offences Against the State Act of being in possession of explosives.
In the case of persons convicted of manslaughter or murder it is not a postconviction mandatory obligation on the Judiciary to do so. Perhaps there should be such an obligation, but inevitably, in such cases prior to conviction all the medical evidence is laid before the court. In the case of drug addiction medical evidence is invariably laid before the court but under the 1977 Act the court does not have any option but to have another medical examination. That is why we are seeking to relieve the court of that exceptionally onerous obligation.
The Minister said it was not obligatory in most other cases to have medical assessments. The Minister has reason to be grateful because I am convinced that if there was a medical assessment on every person about to be sent to prison three-quarters of them would end up under the Minister's jurisdiction in pyschiatric hospitals and he would have an even greater expense to deal with. The evidence is clear-cut the most of our regular and recurring prison population suffer from very serious psychological, psychiatric and other complaints.
Every so often the Minister comes up with this and I keep getting the feeling that it is because a certain individual caused great embarrassment to the State apparatus by absconding during the period he was supposed to be getting his medical assessment that we have had this response. Ultimately, the Minister is still saying that a member of the Judiciary is competent to make a decision about a person's addiction. If that is the case there is not any need for medical assessments at all. If they are not competent then we need medical assessment for everybody. If the Judiciary can be relied upon to make the distinction fairly, we do not need a medical assessment. We may need a social assessment. It is regrettable that some individuals abuse this but it would be more regrettable if people who are the victims of drugs are punished as if they were part of the problem. That question still arises.
I am very much aware that this is a difficult problem. I wish to raise some questions that concern me. As far as I understand it — I do not have the 1977 Act with me — the provision of a mandatory report applied only in the case of persons convicted of possession of controlled drugs. I do not think that requirement applied in the case of persons convicted of having the controlled drug for the purpose of selling it to other people or to pushers. That distinction was worth while because it made a distinction between the pusher who may have been an addict and those convicted of having controlled drugs in their possession for their own use. It was a useful distinction because it tried to create some type of uniformity of treatment for those convicted as addicts or abusers. I do not believe it is possible for the courts as they operate at present to be able to suggest the most appropriate treatment programme for an individual or have uniformity in their decisions. Is it possible at this stage to retain the idea of a mandatory report following conviction and prior to a final decision is made about the treatment or disposal of a convicted person? Is it possible to have a mandatory report in the case of those convicted of having controlled drugs in their possession for their own use and allow discretion in the case of persons specifically convicted under the provisions of the Principal Act which were concerned with drug pushing for commercial gain? I can see some merit in the notion of discretion there but in the case of those convicted as abusers or addicts with drugs for their own use the provision of a report is useful.
The purpose of the report was so that the court in making a decision about a person convicted would obtain information as to the nature of the person's problems and the type of treatment option that would best suit that person. That seems to be a humane idea. I make those observations in the knowledge that the drug problem has got worse since 1977 and that other problems have been identified but I hope that because of the increasing difficulties we do not lightly throw out what was considered then to be a radical provision, insisting on mandatory reports on persons convicted of having drugs in their possession. It would be valuable if it could be retained in some form while at the same time having the distinction between persons convicted of having drugs for their own use and those convicted for drug pushing.
I appreciate the point made by Deputy O'Mahony on the thrust and spirit of the 1977 Act. Uniquely we still retain the prospect of the medical report being obtained prior to conviction. Admittedly it is being changed from being mandatory to one of discretion but it is important to bear in mind that in most cases after conviction representatives of those up for sentence will enter a plea that it would be wise to get such a medical report prior to sentencing. A medical report is either given there and then or had been given already in the course of the defence. If it is not available an accused is invariably put back for sentencing until it is produced. The Judiciary and the Garda have found it difficult in that hardened known criminals involved in straightforward drug pushing have availed of this section extensively.
There is considerable difficulty in terms of appeal as to what constitutes a medical examination, a medical report and the presentation of such a report on a certified basis to the court. A hardened criminal will not have any difficulty spending thousands of pounds securing the best legal brains in the country to pose the requirement that a consultant who may have carried out an examination should be brought before the court prior to sentencing. A virtual second trial on the medical evidence may take place. That is purely a delaying tactic. In that context a number of individuals have posed considerable difficulty and it is why the courts should have discretion to decide whether the obtaining of such a report is appropriate. I have no doubt that the Judiciary, bearing in mind that there will be specialisation in this area, when sentencing people for possession and pushing will exercise their discretion.
The only exemptions are first and secand offences for the possession of cannabis for personal use. The 1977 Act was all-embracing in that respect. If we had made the distinction then about drug pushing we might not now be in a cleft stick in taking on board the recommendations of the task force, who examined this matter at considerable length and spoke to the law officers of the land prior to making that recommendation.
Question "That the words proposed to be deleted stand" put and declared carried.
Section 8 agreed to.
Sections 9 to 11, inclusive, agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
Detection is obviously vital in the area of drug abuse and I welcome the extension of powers of search contained in this section. I understand that most of the big pushers are now off the streets but there is a host of small pushers who must be detected and brought to justice. Given the relatively free movement of people and goods between Ireland and Britain it is not feasible to examine everybody moving between the two countries. Information is vital and in this connection I have a specific suggestion to which I should like to have the Minister's reaction. The drug and intelligence information unit in Britain is likely to have information on Irish drug traffickers. I would therefore suggest that the time has come for the closest co-operation between our Drugs Squad and the unit in Britain which would be mutually beneficial. Such an exchange of information would be particularly beneficial to us in detecting the smaller drug pushers who come across the Irish Sea, bringing with them their lethal merchandise.
The reference to the Garda in this section gives me the opportunity to pay tribute to the Drugs Squad and the excellence of their work and to Inspector Denis Mullins in particular. He has done an exceptional job and I understand he was promoted recently to the rank of superintendent. I congratulate him on his appointment but must immediately express the hope that he will not as a consequence of his promotion be assigned to duties other than those in the drugs area. I recognise that this is the responsibility of a different Minister but I think this man's very valuable talents and experience should continue to be used in a drugs area.
I can assure Senator Hillery that there is very considerable co-operation between the Drugs Squad in the Republic and the appropriate authorities in Northern Ireland and Great Britain. There is also very considerable co-operation between the Drugs Squad and Interpol. Many of the seizures made in the Republic have been directly as a result of liaison and the transmission of sensitive information from authorities in other countries to the authorites here. There has been a considerable improvement in liaison and I hope between now and December to have the first ever meeting of EEC Health Ministers. This is one of the topics I hope to raise. A good deal of work has already been done at what we call the "Pompidou" level and I hope to develop and extend within the Ten the system of communication between the various drugs squads. There has already been a great improvement and our work has benefited considerably as a result.
Question put and agreed to.
Section 13 agreed to.
SECTION 14.
Amendment No. 4 not moved.
Section 14 agreed to.
Sections 15 and 16 agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank Senators for their very detailed contributions on this Bill. We had a very lengthy and valuable Second Stage yesterday finishing around midnight and I am very pleased that the Bill has now passed through both Houses of the Oireachtas. I hope to have an early signature and to bring the Bill into effect immediately.
Question put and agreed to.
The Seanad adjourned at 2.45 p.m. until 2.30 p.m. on Wednesday, 12 September 1984.