In regard to subsection (3) (c) will the Minister explain what the provisions of section 30 of the Misuse of Drugs Act, 1977 involve?
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
Section 30 of the Misuse of Drugs Act states that a court by which a person is convicted of an offence under this Act may order anything shown to the satisfaction of the court to relate to the offence to be forfeited and either destroyed or dealt with in such other manner as the court thinks fit. In other words, section 30 of the Misuse of Drugs Act relates basically to forfeiture.
Section 10 recognises that there is or might be an interaction between the criminal and the civil law. So far not many of the young people who may have been cajoled into drug abuse by drug pushers have not as yet brought court proceedings seeking damages for what happened to them. Nobody has brought proceedings against the drug barons seeking damages for the manner in which their behaviour has impacted on people. Someone who is brought before the courts for a drug offence may be before the courts for other offences as well.
The section clearly envisages that a confiscation order made by the courts could create difficulties in the context of civil proceedings where someone intends to issue, or has issued, civil proceedings for damages against a person convicted of a drug offence. The bringing of civil proceedings may arise out of the drug offence, but it may also arise out of a variety of other things. For example, the person who is being convicted may previously have viciously assaulted and inflicted serious injuries on an individual who might be suing that person for damages. As I understand it, this section provides that if a confiscation order is made the court, in considering the order, must take into account whether there are any proceedings instituted against the defendant in respect of loss, injury or damage sustained in connection with the offence. It is far more likely that proceedings being brought against a defendant will arise out of other issues rather than out of the drug offence itself. I am unaware of anyone previously having had civil proceedings brought against them specifically arising out of a drug offence. If there are other proceedings pending, it is more likely that they are of a different nature. This section seems to be confined. This could result in a debate on whether assets were acquired as a result of a particular offence.
Also a third party may be suing the drug-convicted person for damages for assault, fraud or a variety of other things. The court confiscation order could, not just in theory but in reality, result in that person having few or no assets, and the third person who is entitled to damages but, for reasons other than the drug-related offence, not being awarded damages because the court has confiscated the defendant's assets.
Let me take it a step further. If someone is convicted of a drug offence which would trigger the operation of this part of the legislation to which section 10 is relevant, and there is a family home in which a wife and children are residing and if the wife has had no part or involvement in the drug offences but the courts could ultimately establish that the family home was purchased with moneys this man acquired from the illegal sale and pushing of drugs, could the courts make a confiscation order that would require the sale of the family home and the retaining by the State of all the moneys derived from the sale? What protection would the wife and children have in those circumstances? How would this interact, for example, with the Family Home (Protection) Act? I am raising these issues because, while I generally support this legislation, we have to take an overview of how it could interact in other ways and may create injustices and difficulties. I am very interested in the Minister's comments on those points.
I can appreciate and understand what Deputy Shatter wants to have included, but his own spokesperson, Deputy Mitchell, was way ahead of all of us yesterday in that he had an amendment down asking for the type of changes Deputy Shatter is talking about.
Deputy Shatter could not make the vote yesterday. If he had been here, the result would have been 14 to 11.
Yesterday, I undertook to look at the proposal by Deputy Mitchell between now and Report Stage. The points Deputy Shatter makes today will be taken into account.
I am aware that this was raised yesterday. It seemed to me that section 10 is the appropriate section, because this is the section which requires the courts to look into what damages claims may be brought out of the specific proceedings that have resulted in a conviction. That has a particularly narrow focus, and it is at this part of the legislation which is probably the most appropriate to deal with this issue, and gives rise to difficulties. I am also concerned that this section could run into constitutional problems if we do not address how an order made under this section could interfere with either the legal or constitutional rights of other persons who have a bona fide claim against the person convicted of the drug offence. I thought because we are dealing with this section now, I should raise that issue.
We discussed this yesterday and while the focus of Deputy Mitchell's amendment was primarily on section 18 which deals with where the money raised from confiscation orders goes, the discussion was widened and it was felt by Deputy Mitchell and others that between now and Report Stage I should look at not just that amendment in connection with section 18 but in connection with other sections of the Bill that might be affected including this one. I undertook to do that for Deputy Mitchell.
Question put and agreed to.