At our last meeting in the course of the discussion on amendment No. 12, and the related amendments, the Minister promised that he would endeavour to meet the point made by a number of Deputies in relation to the extension of section 28 to persons convicted under section 27 (1) (a) for possession of cannabis. The only way he could do this was by drafting a substitute amendment to No. 90a. We have before us this new amendment which is in substitution for amendment No. 90a and Nos. 92 and 93 on the principal list of amendments. Therefore, as amendment No. 90a is being discussed with amendment No. 12, and related amendments, I suggest from a procedural point that the best way to deal with the matter today would be to regard 90a as being withdrawn and the new amendment 90a as being substituted. For debate purposes I suggest No. 91 by Deputy Byrne be discussed also at this stage, because if No. 90a is accepted, No. 91 cannot be moved.
SECTION 3
We seem to be hooked on cannabis. Despite what appears to be a complex Bill with its cross-references I believe if we can dispose of the question of cannabis, its use and penalties we can progress fairly rapidly with the Bill bearing in mind other sections which are of serious import with regard to Garda powers and examination of documents and so on. The majority feeling at our last meeting was that amendments Nos. 78a, 86a, 89a, 90a and 115a were satisfactory, subject to my changing amendment No. 90a so that section 28 could apply, at the discretion of the court, to persons convicted on first and second offences for possession of cannabis.
It might be helpful at this stage to refer to Nos. 78a, 86a, 89a, 90a and 115a. Amendments Nos. 78a, 86a and 89a are amendments with regard to the penalty section and on the set of penalties for all drugs except the possession of cannabis for personal use. Amendment No. 90a provides that the court will have discretion to get reports on persons convicted on first and second offences for possession of cannabis for personal use. The amendment has been circulated to members and it provides that section 28 will apply to all persons convicted under sections 3, 15, 16 and 18 of the Bill. Section 3 refers to possession; section 15 to pushing; section 16 to opium and section 18 to forged prescriptions. My amendment proposes that in the case of those convicted on first or second offences for possession of cannabis the courts will be empowered to use their discretion as to whether section 28 is to be invoked.
My substitute amendment, No. 90a, also incorporates my earlier amendments Nos. 92 and 93. This has been done in the hope that we can dispose of section 28 more easily. Amendment No. 92, which is now incorporated in substitute amendment No. 90a, proposes that court welfare officers will be listed among those from whom the court may seek a report on a convicted person. I am making this change in response to representations which I received on behalf of the court welfare service and I am pleased to include them. I believe it would be a good thing if they were involved in a review or examination of the background of the person charged in respect of drug use or possession.
My original amendment No. 93 is also incorporated in the new substitute amendment No. 90a. These changes are proposed at the request of the Irish Medical Association, Eastern Health Board psychiatrists and the Medical Director of the Drug Advisory and Treatment Centre, Jervis Street. The effect of this amendment will be that separate—I stress " separate "—medical and social reports will be provided to the courts as required and that the medical report can be provided directly by the doctor concerned, rather than through third parties as could have happened in the present section. I think I should include that particular amendment.
If I may revert and try to give the overall picture, I would like to do so. If amendments Nos. 78a, 86a, 89a, 90a and 115a are accepted, the overall position will be that there will be one single Schedule of controlled drugs and the degree of control will be exercised in each case and determined by regulations under section 5 at a later date. That is amendment No. 115a.
Secondly, the same penalties will apply in the case of all controlled drugs, except the offence of possession of cannabis for one's own use. In this case, courts will not be empowered to imprison convicted persons on first or second offences. The penalties for the first and second offences will be limited to maximum fines of £50 and £100 respectively for simple possession of cannabis and the court will be given the discretion as to whether or not section 28 is to be invoked. This, I think, meets the point made in this regard last week. Therefore, these amendments, complicated as they may be, particularly in view of what I said as far as the ultimate outcome was concerned, should meet the wishes of at least the majority of the Members of the Committee.
We are grateful to the Minister for meeting our views so quickly in respect of section 28 in the matter of the court getting reports on persons appearing. The more helpful the Minister is in this connection the more complicated he makes the Bill for us and, as he seems to recognise readily himself, the Bill is now becoming quite complicated from the point of view of the original Bill, the amendments and amendments to the amendments. However, one does recognise that it is all happening as a result of the Minister's co-operation and his anxiety to meet the points of view we are putting forward. I should like to repeat again my wish that later on we would seriously consider recommitting this Bill. When we send this Bill to the Dáil I hope we ask the Dáil to recommit it back to us in its new form so that we can have a final look at it as amended.
In amendment 90 (a), the Minister has sought to meet the wishes of the majority of the Committee in that the effect of the amendment now will be that the court in the case of a first or second offence in regard to the possession of cannabis will be free to decide whether or not to go through the procedure laid down in section 28 of getting reports and so on. The new subsection (1) of section 28, which it is proposed to insert by this amendment, refers to penalties imposed under section 27 (1) (a), or an offence under section 15, 16 or 18 of this Bill. As the Minister has pointed out, section 15 is the section which deals with pushing, and section 16 deals with opium in general. Section 18 deals with the forging of prescriptions.
At first glance it was not clear to me why a person who is before the court charged with the offence of forgery should be subjected to this procedure of section 28. The procedure under section 28 is obviously related to persons who have a drug problem and simply forging documents would not seem to be something which would necessitate the courts getting reports from professional people, medical or otherwise. Perhaps the idea is that somebody who would be guilty of an offence under section 18 would be likely to be guilty of that offence because they were addicted and, therefore, it is thought that the procedure under section 28 would be appropriate to them. At first glance it does not seem to be appropriate for somebody who is just guilty of forging a document to be sujected to this sort of medical examination procedure.
However, perhaps it could be looked at. More important than that is the fact that section 17 is not included. Section 17 makes the cultivation of opium or cannabis an offence. I would have thought that if somebody is to be brought under the section 28 procedures for forging medical prescriptions it would be much more appropriate also to bring somebody who is involved in the growing of opium or cannabis because they could be people with an addiction problem. They might be in the growing of opium or cannabis for commercial reasons but they might also be persons who had some form of addiction to either of those drugs. I thought it would have been wise to include section 17 in the provisions of subsection (1) of section 28 particularly if we are going to include persons under section 15, the pushing section.
It is recognised that a person, even a pusher, reprehensible though he or she may be, could also be a person who has a drug problem themselves and it is appropriate that they should be brought within the provisions of section 28. If that is so in regard to a pusher and a person who just forges medical prescriptions, both of these types of people under sections 15, 16 and 18 could be persons who are in the business for purely commercial reasons. If they are included under the new provision of section 28 then surely it would have been appropriate to bring in section 17 as well.
A general criticism of section 28 as revised is that the net effect of sections 27 and 28 is that a person must first of all be convicted by the court before the court would be empowered to get a medical or a professional opinion and report. I am wondering if that is the right approach. Must we have it that they have first of all to be convicted? Could we not have it that once they are brought before the court at all, and before the court has gone through the motions of actually convicting them and making a criminal out of them that the provisions of section 28 in regard to examination could be invoked? It is something we should look at. Once a person is before the court and is found guilty whatever sort of stigma attaches to a conviction has come into being. It is only then one can get the medical report.
It is similar for mental treatment. In mental treatment the man has to do something wrong first.
I am not talking about his doing something wrong; I am talking about his being brought before the courts.
He has to be brought before the courts; it is similar.
I am accepting that he must be brought before the courts but before the court would actually go through the full formality of convicting him I am asking that they would be in a position to get a medical report. That seems to be sensible but as the Bill is framed one must first of all convict and only then can one go and get a report. In other words, a medical report or a professional, or social worker report has been related only to the penalty and not to whether or not an actual offence is committed.
Deputy Haughey has raised a number of issues which I will deal with in the order in which he dealt with them. First, there is the exclusion of section 17. Deputy Haughey has made the point that section 17, relating to the cultivation of opium, would not come under amendment No. 90a.
As far as forging of prescriptions is concerned, that would not be likely to occur. It must be assumed that it is for his own use. I have never seen an opium flower, but I assume one would never grow opium only for one's personal use. It must be assumed that he wants to dispose of it to somebody else or to push it.
Is the Minister talking about growing?
In respect of the growing of cannabis, the same observation could be made. Section 17 is the condemnation of production. It must be assumed he is doing it for some purpose : he either intends to push it or produce it for his own use. People do not generally grow opium in this country; I presume it can be grown.
Exactly the same consideration applies to sections 17 and 18. In forging a prescription or growing one of these plants a person can be in it either purely for the money or because he is addicted. If section 18 is in, then section 17 should be also.
I agree.
It strikes me that the inclusion of section 18 in amendment No. 90a means that an entirely logical and natural progression of addiction will be forgery of prescriptions in some instances. The Minister is prepared to accept the inclusion of section 17 as well. May I take it that with the inclusion of section 17 in amendment 90a, Deputy Haughey will be happy by and large, this is just to clear this point.
Yes.
The net effect would be that sections 3, 15, 16, 17 and 18 would be included in this with the exception of cannabis, which will be treated differently.
Surely there will be a provision for the separate offence of forging? Forgery is a separate offence. If we accept the concept that prior to conviction we would send for an assessment on the arrest of the person to, say, an assessment board or an assessment court, surely the likelihood of forging a prescription is completely separate?
At this stage we are not on that point. Deputy Haughey has raised that point.
It would be more appropriate to discuss that on section 28.
Deputy Haughey raised other points to which I did not reply. He suggested that some people who would be brought before the courts would come in under section 28, before conviction.
We are leaving that over until we come to section 28. There is one matter on today's agenda which we will have to clear. That is amendment No. 91 in the name of Deputy Byrne. If amendment No. 90a is accepted then amendment No. 91 in Deputy Byrne's name cannot be moved. Deputy Byrne's amendment would take out of section 28 an offence under section 15, the offence of pushing or otherwise supplying to another.
The Deputy would be on the same point.
I view the section as dealing with the pusher. That is my interpretation of the section. It refers to a person who is clearly defined as a pusher of drugs.
I could foresee a situation where a person is charged with having some drug in his possession and being charged with pushing the drug. I would see certain difficulties from the point of view of the prosecution in a case of that sort. We would have to define what was being held for personal use and what was being used for pushing. It would be as well to bring them all under the same heading.
I think so. Other instances can arise where a person transfers a minor quantity to another person. It comes under section 15. It may well be that the court might want to get a report following convictions.
I do not think that under section 15 the prosecution will have many difficulties. Section 15 is very flexible. It may be assumed that the person is a pusher until proved otherwise.
The chances are that when the case comes into court there will probably be a number of alternative charges.
I think for flexibility section 15 demands that an offence should still be included under section 28.
I would certainly urge that it be included. There is a grave danger——
I see Deputy Byrne's point but from the court procedure point of view I can see frightful administrative difficulties in applying it.
I see the problem. If section 15 were, as Deputy Byrne suggested, strictly governing pushing for commercial reasons only, then it should not be under section 28 at all. It could and very likely will be a section which will be used in a mixed-up sort of case.
Perhaps the Chairman has confused the Committee. My amendment refers to the deletion completely of subsection (2) of section 15, and section 15 would read :
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 . . .
We are discussing amendment No. 91.
I am asking to omit all references to section 15 from section 28. I had a previous amendment which should be discussed at this stage if you are going to discuss this amendment, and that is to delete completely subsection (2) of section 15 so that section 15 would apply solely to a person who is in possession of drugs for selling or otherwise supplying.
Who will prove it?
The courts would decide it. The charge would be pushing, so the person would have been apprehended as a pusher. It has to be shown to the court that not alone is he a pusher but he is an addict as well. In that case I do not know how one could assume that a man is an addict as well as a pusher. I suppose it would all depend on the amount of drugs he had in his possession. But I would assume, and that would be the intention, that he would be dealt with under section 28. If it is shown then that he is not an addict or his social background is not such that would make him take drugs and he is clearly defined as a pusher, then he gets the ultimate penalty. We are hard on pushers but there is the pusher-cum-addict as well.
You could not take subsection (2) out of section 15 because subsection (1) says " lawfully or not ".
The point you have raised is that by deleting all of section 15 from the provisions of section 28 there might be some point in saying that this would not be valid. What I am attempting to do in section 15 is to bring in a definition for a pusher who is not a taker. Then you will catch the person who is a pusher-taker and you will also have a person who is just a taker.
You could not define that specifically. The court would have to pass judgment on that.
Leave it to the discretion of the court. There would have to be a full report.
What do you mean by " lawfully or not ". What is intended in section 15?
That raises the presumption of guilt which the person has to rebut.
There could be the physical fact of possession.
The drug could be prescribed for him. He may want to do without it, but he can also sell it and pass it on to somebody else. He may have the drug lawfully in his possession but unlawfully dispose of it.
Subsection (2) is disturbing because there is a presumption of guilt until proved otherwise.
At this stage I do not think we will get on to discussing section 15 because Deputy Byrne sought under his amendment to section 28 the total exclusion of every reference to section 15.
Section 15 can be amended.
When we get to section 15 we will be taking your amendment No. 52?
In section 15 I still hold that, if a person is just a pusher and can be defined as a pusher, the court should not be subjected to having to examine him completely the same as a forger or a person who has committed any other type of crime.
That would be something that the justice will have to discover. Suppose the Deputy were asked to define a pusher.
You could define it in section 15 " a person who has in his possession for the purpose of selling or otherwise supplying to another ".
The court will have to decide whether that is the case.
That is what they will charge him on. They have to decide whether he is guilty or not, or is an addict. That should be a separate section.
On the basis that Deputy Haughey indicated that he intends to withdraw his amendment, No. 12, and we reached general agreement on amendment No. 90a and related amendments we can now proceed to amendment No. 13. We have covered quite a number of amendments for discussion purposes.
Let us be clear that what we are doing is setting cannabis aside for special treatment. Simple possession of cannabis can now be divided into first, second and third category offences. First offence will be £50 maximum fine with the possibility of the Probation Act——
And treatment.
At the discretion of the court. The second offence will be £100, possibility of the Probation Act and up to the court to refer for treatment or not. It is only when we come to the third offence that you have the mandatory reference to report for treatment.
And a formal decision on those amendments throughout the Bill will be taken as we go along. That is our approach now.
Was this decided last week?
I brought in an amendment to the effect that it was at the discretion of the court to refer for treatment a person, under section 28, for the first and second offence. For the third offence it is mandatory for the justice to have him referred under section 28. Imprisonment has been deleted as far as first and second offences are concerned, and £50, £100 and £250 are the fines.
Did we have agreement on that? I would have thought the fines a little too high.
I would be inclined to close discussion on the basis that there is nothing to stop any Deputy moving an amendment on Report Stage in relation to the amount of the fines.
I already had an amendment down in relation to the amount of the fines.
We have not decided anything on this yet. We have not discussed the new one circulated by the Minister today?
We have been discussing it since we commenced.
We had the Minister and Deputy Haughey and then the Chairman came in to make a summary; he did not let anybody else speak on it.
Is there any point which is utterly perplexing the Deputy?
The first is the way in which the Chairman attempted to say we discussed it; we have not discussed it. We only received this amendment today.
Could the Deputy elaborate briefly as to the points that are still disturbing him.
The first point that is disturbing me is that the Chairman should think this has been discussed. I have not had an opportunity of discussing it. The Chairman moved straight on to section 28. I have not had an opportunity of speaking on this yet.
Could we have the Deputy's views briefly on the matter?
I will give my views but I take exception to being asked to be brief on this. This amendment moved by the Minister shows obvious compassion for the plight of the first and second offences of the cannabis taker. With the measures proposed the Minister is heading in the right direction but before one could agree with the proposals one would like to see the setting up of a special type of board, or subsidiary advisory body, for the court. It would be no harm to have a serious in depth look at the possibility of setting up a special court to deal with offences under this Bill.
In fairness to the Committee, we earlier ruled as being out of order the concept of a special court for drug offences on the grounds of the charge to Revenue. Deputy Byrne is coming back to the concept of a special court for drug offences repeatedly and he is not in order.
I must say that the Chairman is not in order.
The Deputy cannot advocate matters which are out of order.
If I put down an amendment which provides for a special court that can be ruled out of order——
I have already ruled it out of order.
I am speaking on this amendment and the penalties proposed in it. Either I am allowed to speak on it or not.
So long as the Deputy does not make any reference to a special court he can proceed.
I can certainly make reference to a special court; Deputy Haughey made reference to special advice being made available to the justice.
That is incorporated in the Bill.
The question of a special medical-socio report in relation to a convicted person is entirely different to the question of a person appearing at a special court.
On a point of order, in all fairness we had a long discussion on this at our last meeting and a reasonable concensus emerged with the result that the Minister to meet us all and that concensus, came forward with this amendment. I thought that when he met us in this way his suggestion would meet with general acceptance. I may be wrong, but I thought that this amendment was just putting the seal on the consensus we reached the last day.
The Minister has met us on this point and I am satisfied. I do not see any point in labouring this point for another hour or so. I am satisfied.
The Deputy may have another go on section 15 and on section 28.
And Report Stage in the Dáil, and there may be a recommittal. In fairness, after six hours on this issue we have got to reach some finality. We have elaborated enough on the matter now.
The first 20 minutes of our last meeting was spent explaining the way in which the amendments would be taken. There is no definition of quantity; no definition of strength or the amount a person might have. The definition for one's own use is so variable and vague that it does not satisfy me. There is no reference to either bulk or strength in the Schedule relating to cannabis. There are many amendments related to this in regard to penalties for other drugs. We have not had an opportunity of discussing the penalties that might be imposed on the " pusher ". By getting at the pushers we might diminish the possibility of people having them in possession.
I am afraid our legislation on these matters is not as sophisticated as the Deputy might wish. Therefore, we have no option but to proceed. I will have to pass on to an amendment by Deputy O'Connell, who was not here the last day. We discussed the amendment in passing but we did not complete our discussion on it. Deputy O'Connell's amendment proposes that in the case of a first offence the Probation Act should apply : in the case of a second offence, a fine of £25; and in the case of a third offence, £50. This is relevant to the discussion we are having and perhaps Dr. O'Connell will elaborate.
I believe many young persons unwittingly may find themselves smoking a marijuana cigarette without any evil or serious intent. They may experiment with it unwittingly, and to impose that fine on the first occasion is very severe. I hope we could apply the Probation Act in the case of a first offence. That is a very valid point. The Minister should consider looking again at this. A fine of £50 for the first offence is too severe. It is a first offence and a person smoking may do it inadvertently, unwittingly and may be young enough to experiment. Why should he suffer that fine for a first offence? The Probation Act is given for offences more serious than puffing a marijuana cigarette. People convicted of stealing or assault on the first occasion get the Probation Act but where a person is found puffing a marijuana cigarette he is fined that amount. That is too severe for what I consider is a relatively innocuous drug.
For the second offence a fine of £25 is reasonable. It is more compatible with the nature of the offence. For the third, and subsequent offences, a fine of £50 is reasonable. I am not too happy about the Minister's amendment for the third, and subsequent offence: a fine on summary conviction not exceeding £250, or at the discretion of the court, imprisonment not exceeding 12 months. I dislike that very much because I am opposed to the whole idea of the imprisonment or the criminology of this.
We understand Deputy Dr. O'Connell's attitude towards cannabis; he outlined it at the meeting before last. I accept he has made a deep study of it. As far as the penalties for the offences are concerned, Members will remember that in the original Bill there was provision for a jail sentence. I have done away with that provision in relation to the first and second offence but, subject to section 28, a person can be imprisoned on the third offence.
I should also like to point out that the amounts are maxima. It does not mean that anybody brought before the court for possession for own use of cannabis gets the full term of imprisonment on the third offence or the full amount of fine for a second and third offence. I have an open mind in the case of the first offender. I do not know whether or not this would be a precedent, but a court has power to apply the POA for any offence. I do not think there is anything in our legislation which states that the judge or justice must apply the POA. Another factor is that this may not be the first offence, but the first time a person is caught. The person could be a complete addict at that stage.
There is no addiction with it.
The person may be a heavy user of it. The view of the Committee is that possession of it for one's own use constitutes an offence. In all the circumstances, and bearing in mind the comments of Deputy Dr. O'Connell and, to some extent of Deputy Haughey, the proposal I have made with regard to the first, second and third offences, is reasonable. I should like to point out again that these are maximum fines. I do not know whether Deputy Dr. O'Connell and others are concerned about the position of a young person who appears in court and I do not know whether or not, at the discretion of the judge or justice, such a case could be held in camera. Sometimes it is preferable to make an example of a person, not alone in respect of cannabis but in respect of other drugs as well, by giving the case publicity which would be an embarrassment to him and to his parents. If we want to be serious about dealing with drugs of this kind we must appear to be doing so but if there are extenuating circumstances, I presume that the justice would decide to hold the case in camera.
I am very much in sympathy with Deputy Dr. O'Connell's amendment. Perhaps I should explain to him that on the last occasion I expressed the same doubts about the fine of £50 for the first offence. I asked the Minister to consider mitigating that. I went along with the Minister's amendment in the first instance as a via media but I was reserving myself the right on Report Stage, when we see the Bill as a whole, when it is a composite piece of legislation, to put forward an amendment to reduce that first offence to something nominal, but that is another day’s work.
There is another point I want to mention. When I was Minister for Justice I introduced a provision whereby the Garda, in the case of a young first offender, need not prosecute. I am not sure what the position is at present in regard to that but I hope it is still extant. It was a provision which enabled a garda to use his own discretion; he was not obliged to institute proceedings in the case of a young first offender but could issue a warning instead. If that is still the case in regard to all offences it would apply here. I am very much in sympathy with the spirit of Deputy Dr. O'Connell's amendment and I will be looking at the fines for the first and second offences later.
I have a different view to Deputy Dr. O'Connell on the use of cannabis. I support the view that a first offender should be treated in a different manner to the second offender, due to the fact that this may be a behavioural problem. It is in the interest of society that the person involved should have a proper view of society the first time he clashes with it. The people administering this should be the drug squad because they could build up a better relationship with a first offender. In the administration of this it is important to build up a relationship between society, the drug squad and first offenders. In this way second offenders would be easier to deal with. A person taken in for a second offence will have a different attitude to those charging him; he would feel that at least he got one chance, was fairly treated before he slipped again. He would feel that he owes it to society to behave better in future. I would go along with the terms of Deputy O'Connell's amendment. The Minister does not seem to be absolutely sure that the judge or justice has the right, in all cases, to apply the Probation Act.
I would have to get legal advice on that but I am presuming he would have the right to apply the POA.
If he had the right to do this it would alter a lot of this, but if he has not we would have to decide whether it should be written into future legislation.
He has for a first offence, but it might be necessary to insert a small paragraph stating that in the case of a first offence the court shall have discretion to apply the POA, if that is required. I do not think it is.
I feel very strongly about this first offence, because everyone must be given a first chance. The whole procedure of involvement in the court has a bad effect on a person who innocently or unwittingly does this. To have a fine for a first offence is too severe. We are not giving the person a chance. The Probation Act is applied in so many more serious offences and because of that I press my amendment strongly.
I will have to get legal advice about the POA but I assume—I do not know a lot about courts—that in practically any case a judge or justice has this discretion.
I do not think we should pass legislation merely on an assumption of something. We have an obligation to society to make sure of this.
I will obtain the information.
We have a very serious obligation here. Where we have only an assumption that this may have happened we should put in the Probation Act.
On the breathalyser, a justice has no choice if he decides to convict but to impose the full penalty.
My own view is that the option of applying the POA is not excluded.
I would take it that it is.
I would be very slow to support legislation where that option was not written into it.
We can take it the Minister's view is that it would be available and that if something requires to be done he would put in a section.
Certainly, and on Report Stage we would have an opportunity of having a look at it.
If the justice has not the option, I will make no promise but I will consider it.
Would you not consider writing it in here, that for a first offence the Probation Act would be applied?
I do not know whether I should do that specifically or not. I am advised since I spoke last, the justice has the power to use the POA. If he has that, should we make it mandatory on him to use the POA? It is not so much a question of the first offence. It is the first time he has been caught.
It does not matter if it is 150 times. Legislation should always be for the benefit of the accused. There may also be the boy who is caught and it is the first time he does it. You cannot just say: " What about the person who does it 2,000 times and he is only caught once "? You must also consider the boy or girl who takes a drug once, and who is brought before the court. It may be a 14-year-old boy who does not know it is a marijuana cigarette. This is the important point. We are, for a simple thing like that, leaving to the discretion of the judge as to whether he will impose the Probation Act or not.
He administers the law.
Yes, but we make it. He must act within the law as we make it. Another important point is that we say we leave it in the hands of the drug squad, where we have humane men administering the law. But what happens if the present man, who is a most humane person, is removed? We are not sure of that. We have to build into our legislation protection for those people who unwittingly may commit an offence. I have heard too often the legislation going through the House aimed at doing certain things. If I can digress a moment, the Minister came in with a very good proposal about the domicilary allowance for handicapped children. It was very humane and a wonderful thing. But the administration of that is not as envisaged by the Minister because it is left in the hands of civil servants who have used their own interpretation and who say to me : " That is in the Bill." But we never intended what they do. Implementation of this is very different. We may have the best intentions—and Deputy Brennan, when he was Minister for Social Welfare, had the best intentions—but when the civil servants come to apply the Act they say: " But this is how they will see it." We should bear in mind, when we are passing any legislation, not that we must think of the person who has smoked cannabis 10,000 times and was caught only once. We must think of the person who innocently puffs one and he now appears before a court. That is what legislation is all about. It is not about the habitual user who gets away with it. I think that is a wrong attitude to adopt. You must think of the person who is caught the first time.
I do not believe every first offender will be of the same category. Human beings vary. The function of a court is to assess the particular circumstances of each case, and if there is power to use the Probation Act the justice will use it in the proper case. It is wrong to approach it on the basis that you have got a little simpleton in front of you every time and it is a first offence so therefore he must get the Probation Act. He could have a very hard root in on a first offence. The proper way to deal with him is by not applying the Probation Act.
It is not right for us to dictate to any court of law where there is a judicial discretion—and it is a discretion that must be exercised judicially—and it will be subject to appeal; the appeal will be readily taken by a person who is convicted and penalised on the first offence if he has not been dealt with properly. I understand what Deputy O'Connell is getting at but he completely excludes the fact that each case must be judged on its own facts and we cannot dictate blanket-wise for any offence, first, second or third. You must leave the discretion to the court if you are making it a criminal offence.
I want to ask Deputy O'Connell a question. There is nobody less enamoured than myself of some of the occupants of the District Court bench. There are some gems sitting there at the moment. If the Garda give evidence in the District Court that this person is a villain and we have been after him for a year and we know he is pushing, we finally nab him on the basis of possession of a small amount—this is his first offence and we know this is his history—is it right, in that case, to have it mandatory on the bench to impose the POA? Deputy O'Connell should address himself to that particular situation. Is it not better in all the circumstances to have it at the discretion of this " mixed bag " of district justices?
Yes, I will answer that as I see it. If you have such a villain and if he gets away on the first offence with the Probation Act he will certainly be caught again. Suppose he is fined £50. Is that going to make the difference? What is the difference between £50 and a Probation Act for that man? There is no difference. So he will appear again if he is the villain you say he is. That argument would not hold water. The Probation Act and £50 mean nothing to a man like that but it means a lot to a young person who may be innocently caught. We are doing tremendous harm to such a person on a first offence. The Probation Act is a warning. I would like to know from the lawyers in our midst is there not in other Acts provision for the Probation Act being applied for a first offence? To my knowledge there is.
There is and it usually is applied where it is an innocent type of offence.
But it is not mandatory.
That is the point. You have to consider each case individually. I do not agree with Deputy O'Connell when he said that person is bound to be caught a second time. It is very easy to say that, but ask any police officer. Once a person has been caught once he is going to be harder to catch the second time. It is like living in a fool's paradise to accept that.
If you are to have the POA in the first offence it would greatly facilitate the spread of marijuana. It would not help to contain this problem which is most necessary to include in this legislation. It would promote and facilitate the spread of the problem. As regards the courts, on 19th November, 1975, there was an article in The Irish Times stating that the rights of——
Could you quote the source?
The 19th November, page 11, third column on the right, The Irish Times, the justice is reported as having stated :
" I don't care if he kills himself," declared the justice. " I don't care if he drops dead in front of me in the next five minutes. I mean I don't care in a legal sense. Of course it's hard on his mother. But he's not suffering from lunacy or a mental disease. It's just as if he was drunk before me. I have no interest in the welfare of anybody who appears before me, either physical, mental, or anything else. I'm only here to find a person guilty or not guilty."
This is part of the modern attitude. The mother pleaded with the judge to refuse bail for a son. She feared, and I quote :
that if he were set free for another week he would kill himself with drugs. The drugs he took, she said, were described by his doctor as lethal.
It does not say the drug he took was cannabis. Secondly, it emphasises all the more what Deputy Haughey said about some of the " legal eagles " we have on the benches. One of the best things we as a committee could do would be to go down to the courts and sit there for a morning and we would then realise how these Acts are applied.
We might be put in jail.
We should give the Minister the final word on this.
I do not think we should base this argument on the quality of district justices. We just have them there. I do not know who that particular justice was but——
These proceedings are privileged.
We have to take justices as they are and if, in their discretion, they believe this was a harmless prank, surely they would apply the POA? I subscribe to what Deputy Haughey said in that and I mentioned it myself. It may not be his first offence. It may be as far as the proceedings before the court are concerned and particularly in regard to the pusher who could have a small quantity in his pocket which would be deemed to be for his own personal use, but the Garda may have been trying to get him as a pusher for years. If they get him on simple possession, with no evidence of pushing, he should not get the POA automatically.
It is important to note the amount.
On a garda's evidence a justice must make up his mind as to whether he is entitled to apply the POA or to say that he is obliged by the Act to give him the POA.
I have a lot of sympathy with what Deputy O'Connell says but surely a defendant is innocent when he is being brought to court. The police officers in the case would have information from his father and mother and him, as they do in all cases. Again, all the police officers may not be like all district justices. They will say that this is the boy's first time and the justice is able to assess from the police officer's statement whether to apply the Probation Act or not.
What we are losing sight of is that there is the right of appeal, if a district justice goes wrong.
It is a very expensive procedure—the right of appeal in court.
Everybody has the right of appeal.
There is provision for the POA for offences a lot more serious than one gramme of cannabis. If he is a pusher and has only one gramme it is ludicrous.
It is far more important that the case should be heard in camera, regardless of the amount of the fine, in order to protect and to help in the rehabilitation of and in the education of the taker, and that a compulsory education programme would be applied rather than have an open hearing.
There will be much more about this on Report Stage, but at times I felt we were trying to look for excuses for people taking drugs. That is the feeling that I am getting here from some Members. Perhaps I am misinterpreting. We must remember that the first offence for a person taking drugs is the most crucial part of his life, that it is a springboard to second or third offences and then to go on to harder drugs. Young persons coming before the court must be made fully aware of the dangers there are before them. I am totally in agreement with the fine of £50. I place a lot of trust in the justice to use his discretion whether he will be prepared to apply the POA on the first offence—it could be the tenth offence and only the person's first time to be caught. At the same time, we are now talking about the most sensitive part of this legislation, the first offence, the most crucial part of a young person's career.
It may be the first offence with regard to drugs by all means, but in regard to addiction, the first offence is not a springboard. Deputy Wyse is talking on the wrong assumption in what he has said. I am talking about a first offence for a drug which is not a drug of addiction or a drug of dependence. So we must first start off with that assumption. We are not talking about opium or any of these drugs, but something quite different.
The WHO have recommended to every Legislature that they drop the terminology of addiction.
I qualified that: I said a drug of addiction or dependence.
I have to proceed. We have had a very lengthy discussion.
I think when dealing with teenagers it is important to get them in proper perspective precisely at this time. Any move we can make in that direction should be made. If I were assured—the Minister seems to be absolutely certain—that the person deciding on the case has the right to apply the POA, the first offenders Act, this would satisfy me. That should be there and we would all be the better for it and the people concerned would be all the better for it and these are mostly in the younger age group.
Amendments Nos. 13 and 109 are consequential on amendment No. 14. Amendments 13, 14 and 109 together.
I move amendment No. 13 :
In page 5, subsection (1), to insert " subsection (3) of this section and " before " section 4 (3) " in line 44.
As it stands section 3 provides :
(1) Subject to section 4 (3) of this Act, a person shall not have a controlled drug in his possession.
(2) A person who has a controlled drug in his possession in contravention of subsection (1) of this section shall be guilty of an offence.
Some of these drugs would be in preparations such as cough mixtures and so on, if the amendment is not accepted it would constitute an offence for possession.
Therefore, it is necessary to provide for exemption in cases of possession of these preparations which contain small quantities of scheduled drugs to the extent envisaged in the section. It is desirable to amend the section to enable me to make orders, the effect of which would be to enable certain controlled drugs or preparations containing controlled drugs to be excluded from the scope of this section. Otherwise, we could not have any of these drugs in certain patent medicines, eye drops, nasal inhalers or such items.
What if they have been prescribed for a person?
If they have been prescribed that would be all right. I want to exclude it as an offence when they are included in a preparation, taken orally, through the nose or in the form of eyedrops or cough mixtures.
We are going to have a new section which will have a subsection (3), (4) and (5)?
Subsection (5) must be deleted.
My point was that subsection (5) cannot be left in.
The assumption was, in respect of all these orders, that I would be given the latitude, as unanimously agreed by the Committee; that they would not to be laid before the House or notice have to be given.
As we have deleted subsection (6) in section 2, does that mean that subsection (5) in amendment No. 14 is deleted?
The Minister will move an amendment to amendment No. 14.
We are only dealing with an additional subsection (3) and (4) to section 3 and the insertion of these words in subsection (1)?
Yes.
The insertion of the words in amendment No. 13 into subsection (1).
I move amendment No. 14:
In page 5, between lines 48 and 49, to add to the section the following subsections :
" (3) The Minister may by order declare that subsection (1) of this section shall not apply to a controlled drug specified in the order, and for so long as an order under this subsection is in force the prohibition contained in the said subsection (1) shall not apply to a drug which is a controlled drug specified in the order.
(4) The Minister may amend or revoke an order under this section (including an order made under this subsection).
(5) Subsection (6) of section 2 of this Act shall apply to an order under this section in like manner as it applies to an order under that section ".
Amendment amended by leave by the deletion of subsection (5).
My amendment No. 12 had the subsidiary purpose of trying to make the possession of an apparatus for the injection of a drug an offence. I readily admit that it is difficult to see how one could make the possession of an apparatus of this sort an offence when doctors and nurses would have this type of apparatus——
Patients, too.
——in their possession for legitimate purposes. I can visualise a case where the gardaí would be fully convinced from their knowledge of the situation that the simple possession of an apparatus of this sort should be prosecuted as an offence. I cannot see how one could discriminate between the two.
One could have authorisation for the use of this. A diabetic or any patient who has to inject could have authorisation signed by his doctor.
It would be cumber some.
It is not as simple as that.
As a part of the prescription?
Yes.
Nearly every farmer in my constituency has hypodermic syringes for treating stock. They are the same size and are used for greyhounds and calves.
It is important how one sees it and when it affects farmers it is a different matter.
I mentioned it for consideration.
It is vitally important that people do not have possession of syringes. I believe Deputy Haughey did not want any person to have a syringe unless for a legitimate purpose. We should not gloss over this. Deputy Haughey's point is good and should be looked at by the Minister. We could not have syringes all over the place.
The Deputy is talking from his experience as an urban representative but I am talking from experience of rural life.
They are used for the treatment of woodworm.
We must have a provision whereby it is an offence for a person to have unauthorised possession of syringes.
The vets will love the Deputy.
Syringes are used to eliminate woodworm from timber.
I am talking about unauthorised possession.
The courts are crowded enough without having people turning up with syringes.
It is not that frivolous.
Are Deputies clear about amendments Nos. 13 and 14 in respect of some of these drugs being included in such medicines as cough mixtures, eyedrops and so on?
Or specifically prescribed.
It is a qualification to possession and it would be more related to section 3 than any other one.
Is it any of the drugs in the Schedule?
Yes.
Therefore, in their own right, they might not necessarily be part of a——
It is not just across the board; there would be regulations made in respect of specific ones.
The amendment gives the Minister authority to say that in certain circumstances he can order that the possession of a controlled drug is not an offence.
For example cocaine and opium are used in certain preparations and they are controlled as per the Schedules. Orders would be made in respect of those related to a specific medicinal preparation.
I may be anticipating what is to come, but would there not be some obligation on the people manufacturing and selling them to notify the Department that those substances would be contained in them? The order would not be made until it was known this product was coming on the market, but it might be on the market for some two or three months before the Minister's attention would be drawn to it.
Just looking at it now—it is a pity I did not advert to it earlier—it seems to me that the Minister is giving himself power to remove possession of a controlled drug from the ambit of subsection (1), in other words to remove simple possession of it as an offence. What he is really saying now is " elements of a controlled drug in another preparation ". Is that covered by the wording? It seems to me, as the wording stands, that you just remove the controlled drugs from the section.
He could amend or make a revoking order.
Under the new subsection (3) he is just giving himself power to say that subsection (1) shall not apply to a controlled drug. What he is really getting at is to some element of a controlled drug being in another preparation.
At paragraph 5 of the new Schedule it is stated:
Any preparation containing any proportion of a substance or product . . .
The new Schedule is pretty brief in definition form.
We are dealing here with the definition of controlled drugs in section 2. That is where the controlled drug is defined.
It is specified in the Schedule.
It is referred to again in paragraph 5 of the Schedule and I quote :
Any preparation containing any proportion of a substance or product specified in paragraph 1, 2, 3 or 4 of this Schedule.
It is specified in the Schedule. There is an elaboration there.
The Minister has control of this new preparation?
Yes.
It seems to me that he is giving himself special power to remove a controlled drug, simpliciter, and not a controlled drug as portion of another preparation.
Will the Minister make provision for minor alterations in the formula, say in relation to " any ester " or " any salt " where in minor ways he might add something to it, and change it? Would he be able to include the provision under section 4 in page 50, whether additions or subtractions have taken place to the formula itself? It is very easy nowadays for one or two groups to be knocked off a formula. It would have to go under a completely different name which would not be included in this. Could the Minister make it clear that it would not be an ester or a salt as such, that it would be a new product?
There is ample scope in the Schedule for that.
Look at subsection (2) of section 4.
When you remove from this certain drugs which are contained in other preparations which may be used for another purpose you will exclude those from that as an offence?
Yes.
What do you do with them then if it will not be an offence?
Let us be precise.
I will have power to make orders excluding certain drugs which are now scheduled to be included in medicinal preparations.
There is a medicinal preparation on the market which contains a drug of addiction which may be in a diluted form which has another use—a medicinal use—which is sold without prescription. Certain addicts can have access to this drug. Is it the Minister's intention to control this?
This is purely confined to prescribed drugs.
This drug is in another form. It is part of another preparation. What can you do about that?
It is free for the purpose for which it is used.
All the other provisions of the Bill will apply to it. It will have to be obtained on prescription.
Eyedrops, say, can be bought without prescription.
If we are not careful we will finish up controlling shoe polish.