I welcome the Minister for Justice, Deputy Owen, to our deliberations this morning. We are discussing amendment No. 38 to section 10. I ask the Minister to reply to the debate on this amendment.
Criminal Justice (Drug Trafficking) Bill, 1996: Committee Stage (Resumed).
NEW SECTION.
Debate resumed on amendment No. 38:
In page 9, before section 10, to insert the following new section:
"10.—(1) Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another, in contravention of regulations made under section 5 of the Misuse of Drugs Acts, 1977 and 1984, with intent to obtain substantial monetary benefit shall be guilty of an offence.
(2) For the purpose of this section ‘substantial monetary benefit' means a payment of £10,000 or more whether made in money or goods or otherwise.
(3) A Court or jury as the case may be shall be entitled to hear in evidence the opinion of any Garda or Customs Officer as to the street value of the controlled drug in question in any case notwithstanding any rule of law or evidence to the contrary.
(4) Section 15(2) of the Misuse of Drugs Act, 1977 shall apply to an offence under subsection (I) of this section.
(5) In any proceedings for an offence under subsection (I) of this section, where it is proved that a person was in possession of a controlled drug he shall be presumed, until the court is satisfied to the contrary, to be in possession of that controlled drug with intent to obtain substantial monetary benefit.
(6) A person found guilty of an offence under subsection (I) of this section shall be liable on conviction to a fine of such amount as the court considers appropriate and/or at the discretion of the court to imprisonment for life or to such lesser period, subject to the provisions of subsection (7) of this section, as the court shall determine.
(7) Where a person (other than a child or young person) is convicted of an offence under subsection (I) of this section, the court shall in passing sentence specify as the minimum period of imprisonment to be served by that person a period of not less than 10 years imprisonment.
(8) The power conferred by section 23 of the Criminal Justice Act, 1951, to commute or remit a punishment shall not, in the case of a person serving a sentence on him on conviction of an offence under subsection (I) of this section, be exercisable before the expiration of the minimum period specified by the court under subsection (7) less any reduction of that period under subsection (9) of this section.
(9) The rules of practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence passed on him on conviction of an offence under subsection (I) of this section and the minimum period specified by the court under subsection (6) shall be reduced by the amount of any remission which he has so earned.
(10) Any powers conferred by rules made under section 2 of the Criminal Justice Act, 1960 (including that section as applied by section 4 of the Prisons Act, 1970), to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence passed on him on conviction of an offence under subsection (I) of this section, be exercisable during the period for which the commutation or remission of his punishment is prohibited by subsection (8) of this section unless for grave reasons of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by those reasons.
(11) A prosecution for an offence under subsection (I) of this section shall not be commenced without the consent of the Director of Public Prosecutions.".
—(Deputy O'Donoghue.)
The Criminal Justice (Misuse of Drugs) Act covers offences relating to the possession of drugs. Deputy O'Donoghue's amendment proposes to create a new offence and a particular regime for persons convicted of that offence. It states that there should be minimum mandatory sentences of ten years for persons convicted of having drugs worth more than £10,000. Successive Ministers for Justice, including those from the Deputy's party, opposed mandatory sentences on the grounds that it was more appropriate for the Oireachtas to provide maximum sentences. Deputy O'Donoghue reminded us that on a couple of occasions mandatory sentences of 40 years were given for the capital murder of a member of the Garda Síochána and life sentences were given for murder.
Successive Ministers felt it was more appropriate to provide maximum penalties and to give the courts latitude to hand down a maximum sentence if, having listened to all the evidence in the case, they felt it was deserved. That is where the separation of the powers of the Executive, the Oireachtas and the Judiciary comes in. If a range of minimum mandatory sentences are given, it could undermine the freedom, latitude and independence of the courts to decide, having listened to the evidence, that somebody deserves five years but somebody else accused of the same crime deserves two years. When Pádraic Flynn was Minister for Justice he introduced a provision in our law to allow for an appeal to be made against unduly lenient sentences.
I am not prepared to accept this amendment which seeks to create a minimum sentence of ten years. There is a risk involved if we include a minimum ten year sentence for someone convicted of having drugs worth more than £10,000. Deputy Gregory made a valid point that if a person has £11,000 worth of cannabis they could get a ten year minimum sentence, while someone caught with £1,000 worth of heroin or cocaine, which is more damaging to people's lives, would not get the same sentence. There is a danger that we might not get the serious drug players by having such a minimum sentence and that we could convict and give someone a greater sentence than they should get for the crime they have committed. Deputy Gregory put that view across very clearly at the last meeting.
I am prepared to wait until the Law Reform Commission report on sentencing is published. At that point we will have a chance to look more widely at sentencing, bearing in mind that we must guard the separation of powers between the Oireachtas and the Judiciary, because that is central to the fairness and justice of the judicial system. Politicians cannot and do not meet judges and ask for a five year sentence to be imposed for a particular crime because it was committed in that politician's area. That separation has served this country well and we should guard against it being damaged in any way. I understand the reasoning behind Deputy O'Donoghue's amendment but I am not prepared to accept it.
It is very important to send out a clear signal to drug dealers that they will not get away with the offence of drug dealing. Public confidence in the ability of the courts and the political system to deal with drug dealers and put them out of circulation has seriously deteriorated. Public opinion is that we are not able to do so. It is very important to support the creation of the new offence defined by Deputy O'Donoghue in his amendment and I ask the Minister to do so.
I have listened to the Minister's contribution on the concept of the minimum sentence. My understanding of her opposition to the proposed minimum sentence as defined here is on grounds of separation of powers. Inconsistency in sentencing has resulted in a lack of confidence in the sentencing policies pursued over recent years. The public feel that the Judiciary is not addressing this serious problem and imposing adequate sentences. It is high time the legislature sent a clear signal to the Judiciary that the public is not satisfied with sentencing policy and that a minimum sentence in these cases is deemed to be necessary.
Drug dealers are an exceptionally dangerous breed of people and need to be treated exceptionally. It is an opportune time and it is appropriate for us to make an exceptional move; acceptance of the amendment put down here by Deputy O'Donoghue can be justified on those grounds. The Minister should review her position on it. It may well be consistent with the position of previous Governments on this matter, but that is not to say that it cannot be changed. I do not accept the argument that to do so would be to make a significant inroad into breaching the independence of the Judiciary. On the contrary, it is our duty as legislators to send a message to the Judiciary when we deem it appropriate to do so.
There are many other points I could make in support of the amendment given the present climate and what is seen as the lack of effectiveness and consistency in taking on drug dealers. The timing is opportune, the legislation is suitable and we have a duty to do it.
Sitting suspended at 11.25 a.m. and resumed at 11.35 a.m.
Deputy Fitzgerald referred to the need for mandatory sentencing and stated that this House must send a message to the Judiciary. From reading the amendment, it appears we would not be sending a message but a pair of handcuffs to the Judiciary. That is not in the best interests of justice. It also appears from what Deputy O'Donoghue said that the Judiciary may not have sufficient armour at present and there would be a gap in the legislation if the section were not incorporated. Perhaps the Minister could indicate what powers judges have at present to deal with offences similar to those envisaged by Deputy O'Donoghue under the new section.
I have the same question. It is clear that the 1977 Act as amended gives power to impose strict sentences, from 14 years up to life imprisonment. Deputy O'Donoghue's amendment highlights a problem in that, as he pointed out, of 71 sentences handed down by the courts for drug offences in 1993, only one was for more than ten years. It is questionable whether we are giving sufficient legislative direction. The law appears to allow judges to impose heavy sentences for drug related offences but the audit of sentences outlined by the Deputy indicates that the majority of convicted drug dealers receive prison sentences of less than two years. There are already powers under the 1977 Act, as amended, to impose long prison sentences but that is not happening. If we do not provide for minimum sentences, how can we give the Judiciary legislative direction which sends the right message from this committee?
In 1977, the Oireachtas provided for imprisonment up to a maximum of 14 years. In 1984, recognising that the position was becoming ever worse, it provided for sentences up to life imprisonment for drug trafficking and dealing. Unfortunately, the courts have not been imposing heavy sentences for these offences. An individual who was recently convicted of trafficking in drugs worth £3 million received a sentence of less than ten years. That is unacceptable. This amendment would send a clear signal to drug dealers and traffickers that if they engage in this horrendous offence they will receive a punishment which fits their crime. It is necessary to do this.
The Government has made much play of the fact that the fight against drugs will be a central plank of its EU Presidency. Under this amendment, it has the opportunity to illustrate its commitment to tackle the drugs problem. If it fails to support it, all the wrong signals will be sent.
The Select Committee adjourned at 11.45 a.m.