Vol. 155 No. 12
I remind Senators that a Senator may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. In addition, on Report Stage each amendment must be seconded.
Amendment No. 1 is in the name of Senator Costello. Amendment No. 2 is an alternative. Therefore, amendments Nos. 1 and 2 may be discussed together. Is that agreed? Agreed.
I move amendment No. 1:
In page 6, between lines 37 and 38, to insert the following:
"(2) At least once per year, the Minister shall by regulations made under this section amend subsection (1)(b) of this section by altering the sum mentioned therein having regard to changes in the value of money.".
The amendment is self-explanatory. We are seeking to require the Minister to increase the £10,000 threshold for ten year sentences, which was the subject of much debate on Committee Stage, in line with inflation each year. It is a reasonable proposal. Despite the fact that we are going through a period of low inflation which we expect will continue given Ireland's membership of EMU, etc., it makes a great deal of sense to insert this into the Bill. In that regard, I hope the Minister will accept the amendment.
I second the amendment. I tabled a similar amendment.
On Second Stage I was critical of the £10,000 figure for another reason and I might, with your permission, a Chathaoirligh, rake up some of those criticisms again. With the way the market changes and the efforts of the Governments — more the efforts of the previous Government than of this Government — against the drug barons, the availability of drugs will be reduced. Like everything else the drugs situation responds to the law of supply and demand. If one goes by classical economics, it would appear that the price of drugs should increase significantly if the supply is curtailed, as it ought to be, as a result of the impressive measures for which one must congratulate this Government and the previous Government. One hopes these measures will have the necessary effect; I feel sure they will.
We are asking the Minister at the minimum to adjust this figure to take account of the cost of living. I could go further, although it is not mentioned in my amendment, and state that if there is proof that there is a lesser supply of drugs, increasing their value enormously, that should be taken into account. If the advice to the Minister on the so called market for drugs — which I believe will be fictitious — is that there has been a significant increase of 25 or 50 per cent in the price of addictive drugs on the streets while the rate of inflation is only 2 or 3 per cent, the Minister should take that into account and he should have the discretion to raise this figure by that amount.
I ask the Minister to consider this. I do not want to question the good intention of the Minister or his advisers, but the Bill should contain something more specific than drugs to the value of £10,000 or more; a reference to weight, quantity or some other description would be more tangible. As I stated on Second Stage, the problem will be that people will find themselves charged with having drugs worth more than £10,000 and good lawyers will have a field day arguing about how one determines the price of the quantity of drugs found. The quantity in question might be worth more, but the burden of proof in the courts will rest with the prosecution, that is the State. For that reason, this matter must be reconsidered. We must specify by quantity, type or weight rather than by value. I will be interested to hear the Minister's comments on this issue.
I am sure the Minister's intentions are good but I am appalled that this legislation will soon be enacted. There is no social or scientific evidence to show that mandatory sentencing in respect of possession of drugs of a set value does any good. I would be glad if the Minister had access to scientific proof to show that this is a worthwhile measure, but the Department of Justice, Equality and Law Reform has been unable to supply me with such proof.
The Bill places enormous power into the hands of those responsible for framing charges. These people will be in a position to decide on the sentence to be handed down in cases where individuals have been apprehended with a certain quantity of drugs in their possession. The Minister is aware that if charges are framed to state that the quantity of drugs was valued at over £10,000, a person will be given a certain sentence; but if they are framed to state that the value of the drugs was less than £10,000, the person involved will receive a different sentence.
The legislation will not lead to the apprehension of drugs barons, who are squeaky clean, it is the mules who will be caught. I visited the women's prison in Amsterdam — which is a major point of entry for drugs being shipped from the Far East and South and Central America — and, having seen the pathetic, middle aged, ill-educated women jailed there for importing drugs, I know we will only apprehend the mules because they, not the drug barons, carry large amount of drugs. The drug barons caught to date were not found with vast quantities of drugs in their possession, they were apprehended by means of tax related offences or other criminal offences. For that reason, I regret the introduction of the legislation.
The idea of comparing the cost of drugs with the cost of living index is too much to bear. It is incredible that we have decided to put in place a "market" price for illegal drugs in Ireland when everyone is aware that the cost of these substances in Fermoy differs from that in Dublin and their price depends on the date a shipment is received. Will dilution be taken into account? Will the number of pollutants contained in drugs be taken into account? Will we withhold decisions on the value of shipments of heroin, cannabis or Ecstasy until their purity has been established? If a drug's purity is only 10 per cent, surely its value should be estimated at 10 per cent of the street price. Addicts do not know the purity of drugs they purchase on the street.
I am disappointed by the introduction of this legislation. Having dealt with drugs on a professional basis, I would do everything in my power to help these unfortunate people escape the drug barons who are destroying their lives. If there is one Bill which has been introduced which will have no effect, it is this one. All the legislation will do is put mules in prison. It will not help us catch the drug barons. If we concentrated our efforts on trying to pursue the drug barons by means of the Criminal Assets Bureau, which has been very successful, we would be far better off because this legislation is only an emollient and has no value. We can spend our time trying to decide what the price of drugs was in north Cork or south Kerry on a particular day. I assure the Minister that this will vary from place to place.
My main regret is that people believe there is a need for the Bill. I am aware that those Senators who tabled amendments hope the situation will be alleviated by their action. However, if the Minister has access to scientific evidence or social surveys which show that the legislation will be of value, there might be some point to enacting it.
This matter was debated at length on previous Stages of the Bill. In my opinion, the figure of £10,000 is a sensible and practical yardstick because we must start somewhere. I became lost while trying to follow Senator Connor's argument because if drugs become scarce a lesser quantity of them will be valued at £10,000, which will take account of inflation.
I cannot agree with Senator Henry that the legislation is not necessary. The Bill came about as a result of ongoing public demand for stern action in respect of the drug fraternity. In recent years, immense progress has been made by the Garda Síochána in this area. Each week we hear reports about the discovery of drugs in Dublin, Cork and other areas due to vigilance on the part of the Garda. This legislation will strengthen their powers.
Everyone recognises the devastation caused in this country by drugs. For too long, successive Governments have stood back and taken too easy a line. The current Government has stated that enough is enough and that we must get tough. I fully condone and approve of the action of the Minister and the Government. In that context, the provision of a figure of £10,000 is a useful yardstick. Perhaps it can be changed in ten to 15 years time. When legislation was introduced to combat drunk driving, a certain limit was put in place which has since been reduced to 80 millilitres. For the foreseeable future, the figure of £10,000 is sensible and practical.
I suggest that the amendment should be withdrawn because the Minister has made a strong and clear case. We must make a start somewhere and, when it becomes law, the legislation will send out a clear message that those caught dealing drugs worth a significant amount — £10,000 or more — will be dealt with harshly.
To support the amendment would defeat the intention of Senator Connor's argument. If the amendment were passed, it would mean that the value would increase. In other words, if inflation rose by 5 per cent the value of drugs or the threshold would in turn increase by the amount. If we want to ensure that more people are drawn into the net, the figure should remain the same. Inflation over a period will mean that smaller quantities of drugs will come within the threshold.
Nonsense.
I do not understand the consistency between the argument and the intention of the amendment.
That is due to the Senator's poor knowledge of economics.
The Senator has anticipated me because I was about to enter that domain. Senator Connor dwelt on the supply side but the demand side must also be taken into account. One of the intentions of the Government and the law enforcement authorities is to control supply and reduce demand, which will hopefully have a positive effect.
There are arguments regarding where the line should be drawn in this area. However, such lines are continuously drawn in legislation — for example, that which controls drink driving. A specified limit has been set in law and people found to be above that limit while in charge of a vehicle are liable for prosecution while those below it are exempt.
That is entirely different.
I do not agree, in my view I have drawn a legitimate analogy. It would be naive to expect that legislation, no matter how draconian, will solve the problem of drugs because that problem is multifaceted. Nevertheless, it deals with this and imposes penalties. It achieves what the Legislature is trying to do to restrict the supply of drugs and ensure that those who engage in this trade in death are penalised. There is other legislation, such as the criminal assets legislation, being used to ensure that those who acquire ill-gotten gains through this type of activity are dealt with. I do not see the consistency between the arguments which I subscribe to and the intention of the amendment.
I endorse the comments made by Senator Dardis. The Minister must send out a powerful signal. That signal would be diluted in the absence of a specific value in the Bill. If one was to take into account all the qualifications which Opposition Senators have introduced, one would end up with a Bill containing provisions which no one understood. Clarity is of the essence. Giving a specific figure of £10,000 is clarity. If one does not start from there one loses the purpose of the Bill.
Senator Henry stated that mandatory sentences would not work and that she was saddened that the Bill included such sentences for certain crimes. I disagree with the Senator. Mandatory sentencing should be a central element in a wider programme to combat the drugs problem. The Senator stated that such sentences focused on the mules and ignored the godfathers. However, the godfathers are not being ignored. They are being taken on in a variety of ways, some of which were referred to by Senator Dardis. Let us not forget that the mules make the godfathers. Without them there would be no godfathers. Senator Henry rightly stated that the godfathers walk around with squeaky clean hands while the mules get their hands dirty. One is equally guilty if one does the dirty deed for someone else. I make no apologies for the Minister taking on the mules as well as the godfathers. I commend him for doing so. This is a fundamental facet of the multifaceted approach to tackling this abominable activity which has a potential for and often realises mass murder.
I appreciate the thinking behind these amendments. However, for reasons which I will explain, I do not believe that they are necessary or desirable. While the two amendments stem from similar considerations they are not compatible. First, the Labour Party amendment would require me to make regulations changing the value of the £10,000 threshold at least once per year. The Fine Gael amendment would confine such changes to once a year or on an annual basis. Second, the Labour Party amendment would seem to relate any such changes to changes in the value of money. The Fine Gael amendment refers to changes in the rate of inflation.
I accept that from time to time the £10,000 threshold will have to be reviewed. Leaving aside the substantial difficulties I have with the drafting of both amendments, there might be some merit to them if we were living in a climate where substantial inflation was likely to occur over a short period of time. Thankfully, that is far from the case, not least because of the successful economic policies the Government is pursuing. The reality is that for the foreseeable future £10,000 will represent a considerable sum of money. In those circumstances it is both unwieldy and unnecessary to provide for an upgrading of the amount on an annual basis or more frequently.
When this legislation is passed it will be important for a clear message to go out to those tempted to indulge in drug trafficking that mandatory sentences will apply where the value of the drugs is £10,000 or more. It is essential that this information is widely known within and outside this jurisdiction and I will do everything possible to ensure that this is the case. If the amount changed every year, or more frequently, it could only serve to dilute that message. If we succeed in getting across the message about the £10,000 threshold, what conceivable advantage could there be in changing the message the next year to state that the threshold is now £10,272 or £10,273, etc.?
The figure of £10,000 should not be set in stone. When it becomes clear that there is a case for changing it, that can be done by way of primary legislation after a full debate in the Oireachtas. In this context, as well as substantive criminal law reform measures which I will be introducing, it is intended that there will be quite frequent Criminal Justice (Miscellaneous Provisions) Bills. In those circumstances there will be no shortage of legislative vehicles to change the £10,000 threshold when appropriate. This seems a more sensible approach than placing an inflexible obligation on the Minister to make what in reality could be very significant changes in the amount by way of regulations.
Given that I oppose the amendments as a matter of policy, I do not propose to dwell on some of the more technical aspects. However, the terms of changes in the value of money or the rate of inflation might and in probability would require further definition. The Fine Gael amendment, when it refers to changes in the rate of inflation at the minimum, would seem to purport to give discretion to the Minister to increase the £10,000 threshold by any amount. I doubt that such a power could be left to secondary legislation.
Government Senators are correct to state that the intention is that the £10,000 figure will send a message to those at home and abroad who would consider becoming involved in the pernicious trade of drug dealing that if they do so, are apprehended and convicted by our courts, they will receive a severe sentence. That is the message. While some people, such as Senator Henry, may be appalled by mandatory sentencing, I believe that society is entitled to express its abhorrence of a given crime in legislation duly passed democratically by its representatives. It is not as if this is the first time this has occurred. In the case of capital murder, such as the murder of a member of the Garda Siochána, the mandatory sentence is 40 years imprisonment. Therefore, it can be taken as read that the introduction of mandatory sentencing in this legislation is not the first time that such legislation came before the House. I am satisfied that society is sufficiently appalled by the drugs trade that it wishes its representatives to democratically pass the legislation which is proposed.
Senator Henry has argued that allowing for mandatory sentencing of ten years places the power to determine sentences in the hands of the person framing the charge. That cannot be right. The case has to go before a court and be proved if there is no admission of guilt. Only then, after due process, can the sentence be imposed by a judge. It is incorrect to say that the person who frames the charge is in a position to determine the sentence because, ab initio, the Director of Public Prosecutions has to bring the charge and only he can decide whether there is a case to be answered before the charge is made.
I agree with Senator Liam Fitzgerald's point about carriers. The message is simple. They will not be subject to a ten year prison sentence if they do not carry drugs to a value of £10,000 or more with intent to supply. They should not become involved in the trade because, if they do and they are apprehended, charged and convicted, they will be subject to a ten year prison sentence without temporary release. That is a serious situation for any person in which to find themselves. The message is not to become involved.
Regarding complementary legislation, the Proceeds of Crime Act, 1996, which I introduced when in Opposition, provides for the freezing and disposal of the assets of drug traffickers and other criminals. Twin messages are now been given: if a person is caught drug trafficking or dealing and they are convicted, they will lose their liberty for a considerable period and they will lose their ill-gotten gains. This is tough legislation but there is a serious problem with which we must grapple. It would be wrong to pretend it will go away by taking easy options. There are none left nor are there any choices left. This legislation is designed in so far as it is legislatively possible to protect the populace from the activities of dealers in death.
The Minister's abhorrence of the activities of drug dealers and his intention to deal with them is shared by every Member. We are attempting to ensure that any legislation introduced to deal with the issue and reflect our abhorrence is effective but we do not believe the provisions of this Bill will be effective in that regard. The Minister spoke of couriers and those who carry drugs. It has been our contention that the provisions of the Bill will largely end up jailing the wrong people and not those against whom it is directed. The point made by Senator Liam Fitzgerald and the Minister's comments about carriers reflect a simplistic attitude consistent with the Bill. It is known that carriers are largely drug addicts. It is easy to say they have a choice and that, if they do not carry drugs, they will not be jailed but the matter is more complex. Drug carriers are largely victims so our intention at all stages must be to target the suppliers and the dealers in death. Unfortunately, this legislation will not achieve this objective because of its provisions, especially those relating to mandatory sentencing and the figure of £10,000.
The Minister appears to accept the principle of the amendment we have tabled which is that the £10,000 figure should be subject to variance and that the Minister should have some discretion, especially having regard to inflation. If he accepts the principle, it is a pity he did not take the opportunity to table his own amendment because we would have been happy to carefully examine it and accept it if it contained the principle of our amendment. The Minister accepts the principle but states that he would have to initiate further legislation to deal with it. This was an opportunity to do so and it is a pity it was not taken.
Regarding the points about inflation and proper economic management, while there is low inflation there are massive increases in the price of houses because of supply and demand. If the international police forces were successful in stopping a large consignment of drugs coming into the country, that would increase street prices either overnight or from one week to the next; the following week they might fall. As with the price of housing and its relationship with supply and demand, I envisage a similar situation with drugs.
Our amendment would have given the Minister flexibility to meet what I assume to be his objective to come down hard and heavy on drug suppliers. It is a pity he did not take this into account. It is also a pity that, considering he appears to accept the principle of the amendment, he did not table a similar one. Senator Connor mentioned the level of adulteration of imported drugs and their treatment by drug dealers. That cannot be taken into account although it would affect the price on the streets. We have made a strong case.
We have given the Minister flexibility, although we do not accept the potential effectiveness of what he is trying to achieve. We are trying to be helpful and constructive in putting forward ways in which the legislation can be improved to ensure that, even in its limited fashion, it will be effective. I am sorry to hear the Minister's response, despite all the arguments he has heard today and on Committee Stage.
I move amendment No. 2:
In page 6, between lines 37 and 38, to insert the following:
"(2) The Minister shall by Regulations made under this section amend subsection (1)(b) of this section on an annual basis by changing the sum mentioned therein having regard to changes in the rate of inflation at the very minimum.".
I move amendment No. 3:
In page 7, between lines 46 and 47, to insert the following:
"(3C) Subsection (3B) of this section shall apply only to such categories of controlled drug, not being categories in respect of which a lesser penalty is provided by the Misuse of Drugs Act, 1977, as amended, for possession or another offence, in connection therewith, as are prescribed for the purposes of that subsection by regulations made by the Minister.".
This amendment, which was also discussed at length on Committee Stage, seeks to make a distinction between what are commonly called "hard" and "soft" drugs, and it is a distinction made in the Misuse of Drugs Act, 1977. The argument went on at great length on Committee Stage and my colleague, Senator Costello, spoke at length. As he represents an inner city constituency which has been ravaged by drugs, it is a subject about which he knows a great deal. I have examined his arguments and they are extremely important and were supported by other Members. It is ludicrous not to make a distinction between heroin and cannabis, for example. Heroin is responsible for ravaging inner city communities to which I have already referred. Cannabis does not have the same effect. I do not accept the argument, which is regularly put forward, that smoking cannabis inevitably leads to heroin misuse. There may be incidences where it does but, in general, we know that it does not. Cannabis is treated as an entirely different kind of drug by those who use it. As Senator Costello pointed out, we need only look at those who are currently occupying our prisons to see that heroin has largely been the cause. This legislation does not address the major problem of heroin addiction and all the problems associated with it. That is one of the main reasons the Bill is flawed.
I appeal to the Minister to take on board the views that have already been expressed on this issue and which he has heard on more than one occasion. Even at this late stage he should introduce a note of realism into the legislation to make it a measure that could in some way be effective.
I second the amendment and I support what Senator O'Meara has said. We all know that cannabis is in an entirely different field to heroin and other addictive narcotics on the market. Many people, including medical experts, argue that nicotine is far more damaging and addictive than cannabis, yet tobacco is socially acceptable. The same can be said of alcohol which, though abused by some, is socially accepted while cannabis is not.
With legislation of this kind we are introducing a draconian measure whereby persons found in possession of illegal drugs to the value of £10,000 can receive a mandatory sentence of ten years' imprisonment without remission. This issue should be thought through in depth and I appeal to the Minister to reconsider it.
Will the Minister tell me how many grammes of heroin, at current street values, would be worth £10,000? Is the street value for x grammes of heroin consistent in Galway, Cork and Dublin? Will the Minister also tell us what amount of cannabis would currently realise the sum of £10,000 on the streets of Dublin, Cork, Cahirciveen or Killarney? I would like to know the answers because they are fundamental to the argument.
When the Minister replies I hope he will prove himself to be a market expert because Senator Connor is challenging him to prove it. I cannot see any other rationale to what the Senator is saying other than to challenge the Minister, so I hope he is up to it.
I hope he is too.
Once a drug is illegal then £10,000 worth of it is just that, whether it is cannabis or heroin. While I listened with interest on previous occasions during this debate to distinctions being drawn by Senators and the reasons being put forward that the Minister should make such a distinction in law, I remain unconvinced. Cannabis is an illegal drug just as heroin is. Ten thousand pounds worth of an illegal drug is a substantial amount. Despite having listened carefully to the arguments which have been well and forcefully put by Opposition Senators, I do not see any necessity for the Minister to draw such a distinction. Therefore, I cannot see the logic behind such a distinction being inserted in the Bill.
While I would not presume to be an expert on illegal drugs, it is well known and I have often heard it said that there is a progression factor on the streets. Young people who start off on illegal drugs do not, by an large, begin with heroin. That is my information but perhaps I am being misinformed. The Minister must taken the progression factor into account.
I am also told that cannabis can have severe psychological side effects, including depression. There are well grounded reasons it is still regarded as an illegal drug. If there was an irrefutable case for seriously considering the legalisation of cannabis I would have misgivings about what the Minister is proposing. However, in the absence of such evidence I will fully support the retention of the £10,000 limit and the Minister's position that no distinction should be drawn in the Bill between various drugs.
I am still waiting for the scientific evidence that this will do a lot of good. We are all behind the Minister in wanting to do something about the dreadful drugs problem. I applaud what the Government has done in announcing over the last few days that it will give millions of pounds to deprived areas where there is a serious problem of drug addiction. This will be very useful in the same way as we now see the legislation concerning the Criminal Assets Bureau coming to fruition. At last, real progress is being made in dealing with the drug barons. What the Government is trying to do in giving money to deprived areas will be important.
I hope that some of the areas I have written to Ministers about will receive money. I do not wish to name them because it is always a difficulty for people from these areas who are not involved in drugs. I have written in particular to the Minister for Health and Children about such areas and I hope they will receive some money to improve facilities. It is interesting to note that middle class areas have far less trouble with hard drugs than some of our more deprived areas. I am encouraged by the fact that the Government is taking this action.
The points Senator Connor made are the same as those I tried to make concerning previous amendments, when I inquired as to what we would do if those charged asked that the level of adulteration of the drug should be taken into account. I have come across people who became seriously ill having injected themselves with heroin which was adulterated with Bob Martin's worming powder for dogs. It is very inadvisable for a human to take that powder intravenously because it does terrible damage to the liver. Suppose a criminal insists that the value of adulterants, which are very cheap, are taken out of the equation? Where will we be then?
Cannabis is smoked with tobacco, but smoking tobacco is the worst thing one can do. It is causing us a great deal of trouble and expense. Suppose those charged insist that the value of the tobacco is taken out and that the value of the drug is assessed only on the amount of cannabis in the reefer? There would be a variation. I do not see how it is proposed to work this measure. I can see how attractive it looks as something one can threaten people with by saying that if they do this they will get into trouble. I do not think, however, that the example of mandatory sentencing for the capital murder of a member of the Garda Síochána or of the Defence Forces is quite the same as this case.
When I said we were putting huge power into the hands of those who framed the charges, I did not mean there would be any corruption by anyone there, but that whoever decided on the value of the drug would have the power over whether a person would be liable to receive a mandatory ten year sentence. It is a huge power to give somebody especially when we know the price of drugs fluctuates not just on a daily basis but also according to demand, how they are adulterated and the part of the country in which the transaction takes place. The measure is fraught with difficulties and many areas where challenges can be made.
Can the Minister say if the various diluting agents, be they tobacco, Bob Martin's worming powders, sugar and so forth, will be taken into account when assessing the value of the drugs? After all, it is common for clients to be abusive of the dealers who sell them their drugs because the purity of the drugs is not established in many cases. Ecstasy is the only drug of which I am aware whose purity is fairly standard. That is because it is chemically manufactured. Drugs are generally imported in the purest form possible and are then diluted by the importers. Will that be taken into account when charges are proffered?
I wish to put to bed the notion that cannabis is either not harmful or less harmful than other drugs. Some members of society advocate that it be legalised. I believe we should take a strong line on any drug, regardless of its quality. Earlier the House called for a debate on the tobacco industry and the banning of tobacco advertising. One can imagine the impact of legalising cannabis, the festivals, race meetings and so forth carrying advertisements for different brands of cannabis.
With regard to purity, I am not a scientist and do not know much about such matters. However, I have practical experience of the courts and I am aware that when somebody is arrested in possession of cannabis or other drugs, the drugs are sent to a laboratory to be scientifically analysed. When the result of the analysis is available, due process takes its course. The prosecution must prove beyond reasonable doubt that the substance is a drug and that it is a banned drug. The laboratory analysis indicates whether the drug is mixed or diluted with other substances. The laboratory procedure will continue under this legislation. It would be wrong to confuse the objective of the Bill by using the purity argument, although I understand Senator Henry's reasons for mentioning it. It neither adds to nor detracts from the purpose of the Bill.
Our society has a problem with all drugs. At present, we are trying to reduce the use of tobacco and we encourage our children not to smoke. It is now anti-social to smoke and people can no longer smoke in many public places. On the other hand there appears to be an opinion, with which I do not agree, that society should take a less harsh approach to drugs such as cannabis.
The treatment meted out to somebody who is caught with a small joint of cannabis has, in my experience, seldom included a custodial sentence. This Bill is directed at people who bring large quantities of cannabis or Ecstasy onto the streets or into discos or nightclubs to sell them to what are called "mules" or users. These are the people we must tackle. If a significant number of them are prevented from carrying on their nasty trade, the overlords who have clean hands, drive £70,000 cars and live in million pound mansions will eventually be affected.
This Bill, even though its objective is appropriate and society driven, is only one measure in dealing with the drugs problem. Education is also necessary as are other measures in different areas. However, in the legal context, this Bill is appropriate. While I acknowledge the arguments of the Opposition Senators, they do not warrant the Minister's acceptance of the amendment.
This amendment is substantially the same as the amendment proposed by the Senator on Committee Stage. As I said on that occasion, the intention appeared to be that a Minister would be able to specify by regulation the controlled substances to which the mandatory ten year sentence would apply. This envisaged that it would be open to a Minister to prescribe by regulation that the mandatory penalty would apply to what are referred to as "hard" drugs and not to "soft" drugs.
While there is no reference in the amendment to particular categories of drugs referred to in the Misuse of Drugs Act, 1977, the net issue remains the same, as does my position on it. If the distinction between "hard" drugs and "soft" drugs should apply, its implications are so farreaching that it is a decision which should be made by the Legislature in primary legislation rather than be left to a Minister of the day to deal with by regulation. Indeed, I still have doubts as to whether this purported derogation of legislative powers to a Minister would be constitutional. The Minister for Health and Children, under the Misuse of Drugs Act, has the power to specify controlled drugs by regulation. However, what is at issue in this amendment is somewhat different. In any event, the mandatory provisions should apply to all controlled drugs and, in those circumstances, I cannot support the amendment.
I expressed some sympathy, on Committee Stage, with the thinking behind the Labour Party's amendment to the extent that there is no doubt that the availability of heroin and the activities that surround it represent the worst aspect of our drugs problem. In bringing forward this legislation I gave a great deal of thought to whether some distinction might be made among different types of drugs. However, I came to the firm conclusion that such a distinction would not be appropriate for a number of reasons which I will outline.
The provision relating to mandatory sentences is primarily geared towards those who are trading in illegal drugs as part of an organised criminal enterprise. It does not relate to a person who purchases enough cannabis for himself or herself and a friend and then sells it on to a friend. It relates to somebody involved in possession or supply of illegal drugs to the value of £10,000 or more. In other words, by definition it relates to somebody who is playing a substantial part in the supply of illegal drugs.
The nature of the organised drugs trade with which we are dealing is that many of the people involved trade in both "hard" and "soft" drugs as part of a ruthless criminal conspiracy which has wreaked havoc in many communities. The activities of these gangs are not confined to supplying drugs. They have involved murder and intimidation. In those circumstances it appears right that a person whose activities are a mainstay of that criminal enterprise should face a mandatory sentence in relation to the possession for supply of £10,000 or more worth of illegal drugs, irrespective of the type of drug involved.
Another point which should be borne in mind is that the provisions of this legislation will not apply retrospectively. When the legislation is enacted it will be clear to anybody in advance of deciding to traffic in drugs to the value of £10,000 or more that a mandatory penalty will apply. If people go ahead with this activity, that is their problem.
It was in the light of these considerations that it was decided that the best approach to take to the question of mandatory penalties was to define the offence by reference to the value of the drugs involved. I should re-emphasise the point that nobody involved in the supply of drugs to the value of £10,000 or more is anything other than a substantial player in the organised trade of illegal drugs. However, I accept that a distinction must be made between a person involved in the supply of £10,000 worth of cannabis and a person involved in the supply of £1 million worth of heroin. In my view, the best way to make that distinction is not through not applying the mandatory ten year penalty to the former but to allow even heavier penalties to be imposed on the latter. That will now be the position.
At present a person convicted of drug trafficking can be imprisoned for a sentence up to life and that will remain the case under the new legislation. In that way a court will be able to mark the gravity of an offence subject to the specification of a minimum period of imprisonment of ten years. In all circumstances, I believe it would be counter productive to the fight against the drugs menace to accept this amendment. This matter was discussed extensively on Committee Stage and I regret that, as far as I and Opposition Senators are concerned, never the twain shall meet. Senator Connor came close to arguing for the legalisation of cannabis.
I did not come close to making an argument for the legalisation of cannabis; I described cannabis as a soft drug as distinct from the hard drug, heroin. I will not be accused of making such an argument when I did not.
I have made the argument for the legalisation of cannabis on many occasions.
The Minister, without interruption, please.
I am merely outlining the impression I gleaned from Senator Connor's contribution.
The Minister appears to take whatever impression suits him.
I want to put on record the fact that I would be resolutely opposed to the legalisation of cannabis.
Much play has been made of the whole position in regard to the value of drugs. I refer Members of the House to section 4 of the Bill where a new section 15 is to be inserted into the 1977 Act. The new section states that a person will be guilty of an offence under the section at any time while the aggregate value of a drug, or drugs, in his or her possession amounts to £10,000 or more. If a person is in possession of drugs for the purposes of selling or supplying them and if the value of the drugs exceeds £10,000 at any time during the period of possession, an offence will be deemed to have been committed under the Act.
Section 15(a)(iii) makes the position in regard to the value of drugs very clear. On the question of the weight of drugs valued at £10,000 or more, the Bill states that a court may hear evidence from a garda whom the court is satisfied has knowledge of the unlawful sale or supply of controlled drugs. The courts will defer to expert witnesses who are aware of the value of the drugs involved. Market value is defined in 15(a)(v) as the price the drug could be expected to fetch on the market.
The Minister will have to be more specific than that if he hopes to prove his case.
The definition of market value is quite clear as it applies in the legislation.
It is anything but clear.
A member of the Garda or a customs officer with knowledge of the unlawful sale or supply of drugs will testify in court on these matters and I would regard them as experts in this area.
I am not entirely sure what Senator Henry means by "scientific evidence" in regard to mandatory penalties. In all legislation where offences are created, it is a matter for the House to determine what the appropriate penalties should be in a particular case. It may not be a scientific exercise but it is entirely appropriate for this House to mark society's disapproval of particular offences. For example, the mandatory life sentence for murder which currently applies may not be scientifically determined but I would respectfully submit it is perfectly valid to take the view that such a sentence is appropriate. I also believe it is entirely reasonable for the House to take the view that a ten year mandatory sentence is appropriate for the purposes of the offences described in the Bill. Senator Henry also asked whether a valuation would take into account the dilution of a drug with another substance. Inasmuch as this would reduce the street value of the drug, such factors could be taken into account.
I believe the approach I have taken is a reasonable, pragmatic and efficacious one. This issue was discussed in great detail on Committee Stage and I do not intend to draw the matter out any further. The proposed new section 15 (a) will make it clear that all controlled drugs come under the meaning of the legislation. I respectfully request that the amendment be withdrawn.
I do not intend to withdraw the amendment and it is a pity the Minister is not prepared to take it on board. The debate seems to have focused on making a distinction between heroin and cannabis. Such a distinction could undermine the abhorrence we all wish to express about the sale and peddling of heroin, the effects of which are entirely different to those of cannabis. I do not agree with the legalisation of cannabis. I recently read of studies done in the United States into the effects on children born to long-term regular users of cannabis as a recreational drug. These studies show a level of brain damage and personality disorder in these children. I take a very dim view of calls for the legalisation of cannabis. I would, in fact, favour the banning of tobacco. As an ex-smoker, I am one of the most zealous in that regard.
Like myself.
Join the club.
I have seen relatives of my own dying young as a result of cigarette smoking. Tobacco smoking is costing us hugely in terms of the number of people in our hospitals and dying of lung cancer, emphysema and other smoking related illnesses. Nevertheless, the effects of heroin are very different from those of other drugs. The heroin industry, for want of a better word, is an entirely different one. This should be reflected in the legislation. I am sorry the Minister will not take this opportunity to do so. By not doing so he is undermining what he has set out to do.
Amendments Nos. 4, 5, and 6 are related and may, by agreement, be discussed together.
I move amendment No. 4:
In page 26, lines 5 and 6 to delete ", if it considers it appropriate to do so,".
On Committee Stage the Minister indicated that this issue would be considered in the light of the arguments put and of advice taken. I am glad to see that Government amendment No. 5 reflects what we are trying to achieve. I thank the Minister for taking our points into consideration and for reflecting them in amendment No. 5.
These amendments relate to section 28, which for the first time sets out on a statutory basis how guilty verdicts are to be dealt with by the courts. Section 28(1), provides that in determining what sentence to pass on a person who has pleaded guilty to an offence a court, if it considers it appropriate to do so, shall take into account the stage of the proceedings at which the person indicated his intention to plead guilty and the circumstances in which this indication was given. The effect of amendment No. 4 would be to remove the words ", if it considers it appropriate to do so,". In other words, a court, in all circumstances, would have to have regard to the factors to which I have referred. The inclusion of the words ", if it considers it appropriate to do so," is considered desirable so as not to make it an absolute requirement on all courts to take such matters into account in relation to all offences. This is for the very practical reason that the provision relates to all offences. For example, it would hardly be necessary or desirable for a court to look into these matters in relation to routine road traffic offences.
There is in existence already, case law in relation to when it is appropriate for the courts to take guilty pleas into account. While the proposed section places aspects of that law on a statutory basis I do not believe that it will supplant that case law to the extent that that law already deals with when it is appropriate to take into account guilty pleas. In that sense the point of the amendment is already met by our law and, as I have explained, the amendment would require a court to take into account guilty pleas, and in particular the circumstances in which they were made, in the most routine of cases and there would clearly be no benefit to be gained from that. On the contrary, it might needlessly clog up the operation of the courts. I have looked at the matter again since Committee Stage and, in the circumstances, I am not disposed to accept the amendment.
Amendment No. 5 is a Government amendment. This arises out of a commitment given on Committee Stage to consider further an amendment proposed by Senator Costello and others and which is again tabled as amendment No. 6. In the interval since then I have had the matter discussed with the Attorney General's office. Section 28(2), provides that courts shall not be precluded from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that the circumstances of the offence warrant the maximum sentence. The Labour Party amendment would add the word "exceptional" before "circumstances of the offence". Given that this essentially represents existing case law, I have no difficulty, in principle, with the amendment. However, the official amendment is preferred, in the sense that Senator O'Meara's amendment might be taken to assume that exceptional circumstances which would have to be examined arise in relation to every offence. The effect of the official amendment will be to provide that where there is a guilty plea, the maximum penalty would only be applied where there are exceptional circumstances relating to the offence which warrant the maximum sentence.
I hope Senator O'Meara will accept that this effects the change which she sought to bring about and that she will withdraw her amendment.
