Special Committee Misuse of Drugs Bill, 1973 debate -
Tuesday, 6 Apr 1976

SECTION 19.

Debate resumed on amendment No. 61:

In page 14, subsection (1), between lines 13 and 14, to insert " (f) the injection, application, oral intake, or inhalation of a controlled drug."

Dr. Byrne

In section 19 (1), it is stated that:

A person who is the occupier or is in control or is concerned in the management of any land, vehicle or vessel and who knowingly permits or suffers any of the following to take place on the land, vehicle or vessel, namely——

and the list follows. My amendment would include a new subsection (f):

the injection, application, oral intake, or inhalation of a controlled drug.

My arguments in favour of it is that if that person, the occupier, the person in control or concerned in the management, is to be convicted, say, for the preparation of opium for smoking or for the smoking of cannabis or cannabis resin, and if the Minister has not already agreed to accept the previous amendment, then he would not be permitted to allow " the cultivation of opium, poppy and plants of the genus Cannabis ", I contend that it is consistent with this section that we should also prevent a person knowingly to allow " injection, application, oral intake or inhalation of a controlled drug ".

To go on a little bit further, opium and cannabis are not the only drugs that are inhaled for the pharmacological effects of the drug. Inhalation of the high hydrocarbon volatile type glue has been a very common abuse recently, as has inhalation of many other substances that are alleged to cause either stupefying or stimulating effects, depending on which substance is inhaled. Regarding oral intake, 90 per cent of cannabis consumed in the world is alleged to be consumed orally. It has only one-tenth the effect on the mind of what it would have if inhaled. It is in the western hemisphere that 99.9 per cent of cannabis would be consumed by inhaling. So I contend that for a person to allow the injection, the application, the oral intake or the inhalation of a controlled drug on his premises is an offence in the spirit of section 19 of the Bill.

Mr. Esmonde

I agree with Deputy Dr. Byrne on this. The human mind is full of ingenuity to get around a prohibition and this is basically the prohibition section. It is our duty, if we are in agreement with the spirit of this section, to do as much as we possibly can to assist those who have the duty of supervising and applying this section. There has been considerable difficulty about the very simple matter of some of these inhalations used for colds where it was found that they had been abused. I mention the drug benzedrine. The strength of some inhalations had to be reduced to one-tenth of their original content of benzedrine.

Some years ago it was discovered that these, what were regarded as harmless methods of applying self-medication, had been abused by being dismembered and people using the contents for other purposes. If a person had been caught with a particular type of container it would have been said, " This is just simply a little inhalation nozzle ". There was quite a large market being built up on buying these things and disseminating and distributing them in a completely different guise altogether for a purpose other than for which they were intended. It surprised me and, certainly, I think it surprised the medical profession at the time this came to light. One of these has been called a V-inhaler. It had another name which I do not want to mention. It just had a simple drug that was supposed to help people with nasal congestion. It was broken down and used for other purposes. Therefore we would want to take a pretty wide wording to give the authorities the necessary power to deal with the ingenuity of people who are prepared to use that ingenuity the wrong way.

Mr. Corish

I do not see the necessity for this. I accept all that has been said by Deputy Byrne and Deputy Esmonde. They want to insert another subsection here to include " the injection, application, oral intake, or inhalation of a controlled drug". In my view this is covered by subsection (g) which provides for possession and you cannot take any of these controlled drugs orally, by injection or any other method unless you have it in your possession. Therefore subsection (g) covers that.

Mr. Esmonde

Let me just mention one thing. I do not want to be too technical on this but one need not necessarily have it in one's physical possession. One could have control of it through some other person having it and oneself could be the organiser. Would the fact of having this type of subsection not help? I may be wrong. Subsection (g) refers to the physical possession by the particular person who is involved.

Mr. Corish

I know, but any drugs can be handed around, particularly cannabis. Possession is the key, and we have made provision for possession in subsection (g).

Dr. Byrne

Subsection (1) of section 19 states if " a person who is the occupier or is in control or is concerned in the management of any land, vehicle or vessel and who knowingly permits or suffers any of the following to take place : the possession of a controlled drug in contravention of section 3 of this Act. . ." That would cover subsection (e) " the sale, supply or distribution" by merely having possession. It would also cover subsections (a), (b), (c) and (d) and all the subsections.

I thought we had some form of consensus that subsection (1) of section 21 did not cover a person who is in the management class in charge of the premises or lands, and that we were going to strengthen the subsections under section 19. By including amendment No. 58, which is the cultivation of the opium poppy or any plant of the genus cannabis, will this strengthen it? You could not actually cultivate it without having the seed in your possession. I suggest to the Minister that he accept this amendment in order to strengthen this section, or else that he has a look again at the section to see whether the section itself is necessary. If it is necessary, and is going to be kept as part of the Bill, I feel very strongly that the injection, application, oral intake, inhalation or the smoking of a drug should be included.

Mr. Corish

It can be included but it would be a duplication of what we have already provided for. That is possession, in subsection (g).

Chairman

It is in many respects a rather unnecessary elaboration, because one cannot have injection, application, oral intake or inhalation unless one first of all has possession. Indeed, here is the question of permitting or suffering possession to come into existence—the owner or occupier permits possession in accordance with (g). It is a contravention immediately. One could elaborate at great length on the amendment. There are many forms other than injection, application, oral intake or inhalation.

Dr. Byrne

I cannot accept that because the injection of a drug is not necessarily related to the possession of the drug unless one is actually injecting oneself. Then one has possession of the drug and one would inject oneself. It can sometimes happen that one person might inject another person. It can also happen that one person can have possession of a drug and give it to another person for oral intake. As regards sniffing of drugs it is very seldom that the person inhaling the drug actually has it 100 per cent in his physical possession. If one were to go into the finer details of it, which I do not want to do, it would strengthen my case that this should be included in order to strengthen the section.

Mr. Esmonde

I see the point the Chairman has made and the proposed amendment might be regarded as somewhat tautological in the light of the other wording. I am a little worried about the use of the word " permits " which is the word which governs the subsection—" permits or has permitted "—because Deputy Dr. Byrne has just mentioned that a person might be just transferring it without really having what they call "possession" in law of the drugs, using some machinery or equipment or premises that enables maybe part process of the drug.

I want to make quite certain that the position will not arise, if this section applies in a prosecution that is well merited, that a person is acquitted on some sort of silly technicality like the word "permits" does not cover "permitted", or possession in law does not cover " usage ", when a person has not got possession in the legal sense. You can have that, but it is not regarded as possession in law. It has a legal connotation and that is the difficulty. The purpose of Deputy Dr. Byrne's amendment to include somebody who is using or part using the drug down along the line.

I would suggest the best way of dealing with this would be for the Minister to have a look at this on Report Stage in the light of the comments we have made. It is the fairest way.

Mr. Corish

As it is worded now, could somebody who, for example, has some illness which necessitates the taking of a controlled drug not be liable for prosecution?

Dr. Byrne

They would be covered by prescription.

Mr. Corish

That would have to be included in the amendment, except in accordance with regulations. I do not see the necessity for it because you cannot inhale it or take it orally unless you actually have it in your possession.

Dr. Byrne

Then what is the need for subsection (b)—the smoking of cannabis? Why include that? You cannot smoke that unless you have it in your possession. The same goes for subsection (a). I am trying to understand this as best I can in my limited way. Why have the smoking of cannabis and not the injection of heroin? Why have the smoking of cannabis and not the inhalation of the glue, or some other such hydrocarbon.

Mr. Corish

As far as opium, cannabis, cannabis resin and prepared opium are concerned, these are mentioned specifically, in order that the pushers or organisers of these sessions would be culpable and would be prosecuted.

Mr. Esmonde

That would only be smoking. It is governed by the word "smoking".

Mr. Corish

Preparation and smoking of cannabis.

Mr. Esmonde

"The preparation of opium for smoking", "the smoking of cannabis".

Mr. Haughey

This section does not deal with these things themselves. It deals with permitting it to be used.

Mr. Esmonde

But the actual usage. I am trying to see that the section covers every possible usage if it is to be a watertight section.

Mr. Corish

I think, Deputy Haughey, it is structured as it is to make sure these are not organised in pubs, clubs and various other places.

Mr. Esmonde

We are just trying to add something to make quite certain that the intent of the section does not leave loopholes.

Mr. Corish

I do not think it is necessary.

Mr. Esmonde

The interesting thing about this amendment is that it is a separate paragraph. It stands on its own. It does not qualify anything in any other paragraph. Paragraphs (a), (b), (c) and (d) are all separate entities.

Chairman

If one were to include it one would have to put in a further elaboration "in contravention of such regulations", particularly injection, unless we want to find members of the medical profession suddenly hauled before the courts.

Mr. Esmonde

I would regard this as a particularly important section. It is the one, in a sense, that will possibly be hard to apply or to supervise. If there is any word left out, it should be put in in order to carry out the intent of the section.

Mr. Haughey

It is going to work both ways. If it is going to be hard to apply in the sense the Deputy means, it is also going to result in persons being inadvertently walked into criminal offences. A very fine balance has to be struck. We are dealing here with the owners of premises or places and the activities which take place in them.

Mr. Esmonde

We have glaring examples of people having their premises used for illegal purposes recently, which the authorities have found hard to deal with. That is why I am a little conscious of this particular area of illegal activity, where you are dealing with the question of control, and trying to apply the intention of the Bill, or the Act when it becomes law.

It may be regarded as tautological. I am quite certain the Minister and his excellent advisers will consider what has been said on this and, as the matter has been raised in some detail, I would like the Minister to have a look at the word "permits" or " permitted " in relation to this section. There are plenty of expert criminal lawyers to advise on this aspect of the matter. It is not necessarily so much a matter of health or drugs. You are dealing with the criminal law and it might be as well to consider the possible insertion of the word "permitted" or some such phrase like that in the leading paragraph.

Chairman

Would Deputy Dr. Byrne be prepared to allow the Minister to have a look at that for Report Stage?

Dr. Byrne

I would imagine that where this section would be used most would be by the person who has the holiday home, the chalet, or the small boat, and has a party of maybe six or seven and if that person knowingly allows the injection or the oral intake in relation to the smoking of marijuana, then that person should be prosecuted, but it should be spelled out clearly here. I am not now talking about the big hotel owner or the owner of a public house. This part of the Bill would be used mostly against the person who owns a small chalet or a boat or maybe a flat. I would like it to be spelled out so that it would be clear that it is not just the possession of the controlled drug. I am not happy with that. I would prefer to see the section in some other form because, as I say, if they have a group of six or seven, it is the person who is the most experienced injector who will be the person in possession. But if the person who owns the flat knowingly allows this to happen he will be convicted with the person who is in possession. What I am saying is that if the person who has been in possession leaves and the owner knowingly allows so many to be injected with the methedine he should be liable to prosecution. I want to try and block that potential loophole. That is why I plead with the Minister to accept this amendment.

Mr. Corish

I will have a look at it.

Chairman

The Minister will have a look at it for Report Stage.

Amendment, by leave, withdrawn.

Dr. Byrne

I move amendment No. 62:

In page 14, subsection (2), line 22, after "offence" to insert" the occupier of or present on, or".

The section reads:

A person who is the occupier or is in control or is concerned in the management . . .

Then line 20 reads: ". . . on a particular vehicle or vessel and that the defendant was, at the time of the alleged offence, in control or concerned in the management of the land, vehicle or vessel . . .". I think that should read ". . . the occupier of or in control or concerned in the management of any land . . ." The word "occupier" has been omitted from that subsection. I would like to see it included: " At the time of the alleged offence the occupier of, or ".

Mr. Corish

I accept that.

Amendment as amended by the deletion of " present on, or" agreed to.

Section 19, as amended, agreed to.