Special Committee Misuse of Drugs Bill, 1973 debate -
Tuesday, 27 Apr 1976

SECTION 22.

Question proposed: That section 22 stand part of the Bill.

Mr. Haughey

I am opposing this section. My objections to section 22 would be repeated in the case of most of the following provisions of the Bill. They are, in principle, the very serious departure which the Bill proposes to introduce into the law in dealing with these offences. We are, of course, completely at one with the Minister in his wish to eradicate the social evil of misuse of drugs in our society. We are prepared to go a considerable distance with the Minister in seeking to deal with this evil. We have already demonstrated that that is our position with regard to the legislation as a whole. We recognise that there is a serious social situation which can be dealt with only by legislation. We are prepared to facilitate the Minister to the greatest possible extent in providing suitable legislation to deal with the matter. It is a difficult, complex and sensitive matter. In section 22 and the following sections the Minister proposes to go much too far. In section 22 particularly, the Minister proposes to shift the onus of proof.

With regard to any evil that arises in society, when one is particularly concerned with that evil—as a legislator, social worker or whatever—one is inclined to think that that evil is of such magnitude, because one is preoccupied with it, that one lets it over-ride every other consideration. This is the point with which we have to be very careful. We have to make sure that in eliminating any undesirable element in our society we do not, in doing so, introduce something much more pernicious and undesirable. I am afraid that is what the Minister might do here if he proceeds with the provisions in section 22 onwards.

If the legislation provides the machinery necessary for the Minister and his Department and the Garda, the ordinary law in regard to proof will suffice. The criminal law has been built up over centuries. Its procedures have now been well tried and are found to be reasonably satisfactory. In this one context to make a major change of this nature and to transfer the onus of proof from the prosecution would be going too far. The situation should remain that it is still necessary for the prosecution to prove that a person is guilty rather than a person should have to prove that he is innocent, which in effect is what section 22 provides.

The legislation when it comes into operation will be sufficiently comprehensive to enable it to be enforced by the ordinary legal procedures. We should not, in order to deal with this one evil, make this very exceptional new type of provision. After all, the abuse of drugs is not a more serious crime than murder. Why should not the ordinary rules of evidence which prevail in regard to a crime as serious as murder also apply in this case?

I suggest that this provision is unnecessary. It would be setting a very dangerous precedent indeed. With regard to offences created under this legislation we should accept the normal criminal law procedures which have been well established for a long period. Therefore, I oppose the section.

Dr. O'Connell

I would like to endorse what Deputy Haughey said. I am surprised that the Minister is seeking to introduce such a drastic change into the law. We have always prided ourselves on the fact that in law a person is innocent until he is proven guilty. I support everything Deputy Haughey has said and I would be vigorously opposed to any change in the law in respect of this. I would never be a party to supporting any such change.

Minister for Health (Mr. Corish)

I acknowledge what Deputy Haughey said regarding the mutual co-operation that we have engaged in on the discussion on this Bill since we came into Committee. Every member of the Committee, as I am sure every Member of the Dáil, will appreciate what we are endeavouring to do in this Bill. I do not believe that it is ominous as described by Deputy Haughey. Possibly the motivation for his opposition might be in the description of section 22 which talks about onus of proof.

This section is not peculiar in that it is not the first time that such a provision was included in an Act by Dáil Éireann. I will give some examples of this later. In respect of certain Acts it is common practice to shift the onus of proof on the person charged rather than the contrary. The purpose of this section is to ensure that when a person is charged under the Act the Garda do not have to prove that the person is not legally in possession of drugs. The onus should be on the defendant to prove that he is in lawful possession of a permit or a licence. The onus is on him to produce that permit or licence if he protests that he is in possession of the drug legally. Some people have this authorisation in section 4 of the Act—that is practitioners and pharmacists—and in section 5 there is a provision for licensing of manufacturers, importers and sellers of drugs and in the case of transportation as well.

We should take this in a simple fashion. If, for example, a garda has good reason to believe that a person has drugs illegally in his possession he will ask the defendant to account for the possession of drugs. The person would probably say he has a prescription, a licence or a permit. If he has it on his person that is all right. If he does not produce it, or produce it within a reasonable time as provided for in other legislation, then he is charged before the court. If he persists in court in asserting that he is legally in possession of the drug, either by way of licence, authorisation, or prescription, the onus should be on him to produce such licence or authorisation. In many cases it is not possible to prove that he has not got one. If such were the case where a person was charged with the illegal possession of controlled drugs, it would mean that the State would have to engage in exhaustive inquiries throughout the country in seeking to discover whether or not a prescription had been issued by a medical practitioner, or investigating practically every pharmacist in the country to see whether or not that prescription was filled. This has been described as a precedent and it has been suggested that such provisions in legislation do not exist. There are very many examples of this. The most obvious one with which Members will be familiar is the Road Traffic Act under which a garda is entitled to stop a motorist and ask for his licence. If he has a licence, that is all right. If he has not got one, he is required by the Garda to produce it within ten days. This is provided for in section 40 (1) (a) of the Road Traffic Act, 1961. There is also the Firearms Act.

Mr. Haughey

That is before he goes to court. We are talking about in court.

Mr. Corish

Yes, but even if he produces it in the court it is all right. If he does not, there is an obligation on him to do it.

Mr. Haughey

In the case of producing a certificate in the local Garda station, that is still in the preliminary stage. I do not mind that at all in so far as this is concerned. If you have these certificates and show them to the Garda there is no prosecution. We are talking here about where the case is in court.

Mr. Corish

It applies in court as well, surely. If he says he has a licence, the onus is on him to produce it.

Chairman

It says: "In any proceedings", and presumably being stopped by a member of the Garda Síochána and being asked to account for how one was in possession of drugs——

Mr. Haughey

In any proceedings for an offence under this Act means a court case.

Mr. Corish

In any case, to quote another example in the Firearms Act, the onus is on the person to produce the licence. It is not for a member of the Garda Síochána to go around the country or the various Garda barracks to try to find out whether or not there was a firearms certificate issued in respect of person so and so. There is also a precedent in the 1947 Health Act in respect of the suitability of premises to function as a restaurant or for the provision of food. These premises can be inspected and it is up to the proprietor or manager of the establishment to show he has a licence to run such restaurant, hotel, or any other place that supplies food for the public.

The next one I have in mind is not a precedent because it is still only a Bill. A similar sort of provision is provided for in the Wildlife Bill. Whether it will be challenged or not is another thing. It is still only a Bill, but there did not seem to be much objection to it when it went through the Seanad.

There is also the example of the possession or non-possession of a licence for television or radio. The onus is on the person, when accosted, to show he has a licence. If he goes to court, the onus is still on him, the defendant, to produce the licence. This is provided for in the Broad-casting Act. The Dangerous Drugs Act, 1934, which is much nearer to the matter we are discussing, has a provision in it, and I quote section 34:

In any proceedings for an offence under this Act, it shall not be necessary to negative by evidence any permit, licence, authority, or other matter of exception or defence, and the burden of proving such matter shall be on the person seeking to avail himself thereof.

Therefore, it is incorrect to say that this is the first precedent of its kind.

These are just a few examples. The Committee must realise that if we are to lay the onus on the members of the Garda Síochána to prove that a person was acting legally by going to doctors, pharmacists, and so on, we may go only a little distance in the combating of the abuse of controlled drugs.

Mr. Haughey

In response to what the Minister has said, most of the things he talked about are mechanical sorts of things, such as where a premises is to be inspected for the health regulations. Here we are dealing with the criminal law affecting people, people's lives and liberties. We are deciding whether or not people will go to jail. It is a very sensitive area. We are dealing with a very delicate area of community relations. We are inclined to think mostly of young people, and I suppose it is in the case of young people that these provisions will be most often invoked.

We all know what the criminal law is: a person is innocent until he is proven guilty. He is brought before the courts, but this fact does not mean he is guilty. I do not think we should set about this creeping process we have coming into our law whereby the courts are almost automatic; haul somebody up before the courts, say he had drugs in his possession, send him off to jail and fine him a couple of hundred pounds. Let us stick to the good old tried and true criminal law procedure. If the State wants to accuse somebody of a crime before the courts they must produce their proof.

There are lawyers on this Committee. I never was a practising lawyer but I know that if you bring somebody before the courts the prosecution is there. They have the machinery and apparatus at their disposal and step by step they prove their case. Only when it is proved beyond doubt is the person guilty and deprived of his liberty. I would advise very strongly that we should, in this legislation, adhere to that situation.

We are not dealing with television licences or restaurant premises but we are dealing with the whole future of young people. We all know the sort of young people who are likely to get caught up in this type of situation. I know in my constituency they do not know what the law is. They would not know how to go about proving that they had lawful possession of these drugs. They do not know anything about licences or the categories of drugs or anything else. That is the reason why the criminal law down the years has developed the way it has, because the State must prove that a crime has been committed, not that the person who is caught has to prove that he is innocent or that he had lawful possession; it is not just a question of simple production of licences or other documents. Under the section the onus of proving such lawful possession moves from the prosecution to the defendant. That is a very serious departure. There might be areas of the law which are not all that important and which are an administrative type of law. We might be prepared to accept certain incursions into the principles. But this is not that type of area. This is a very important social area, an area where the liberty of the individual is concerned and perhaps the life of a young person is concerned. We should stick to the situation where once a person is brought before the court the prosecution must prove their case. The Minister was confusing the issue. He was dealing with the pre-court situation where a person who is questioned by the Garda has to produce evidence. That is normal police procedure, but in section 22 we are talking about where the person is actually arraigned before the court. I want to persuade this Committee that the existing procedure is good enough, and if we establish the machinery under this legislation then it is up to the normal criminal procedure to take over after that and make sure that the purposes of the Act are enforced.

Mr. Wyse

Could I ask a question? If a person produces a licence, prescription, authorisation, he does not appear in court if he produces it within ten days of a court proceeding. If you are met on the street, you have ten days to produce the licence, authorisation or prescription?

Chairman

That is in the case of a driving licence.

Mr. Wyse

Does the same thing apply in this case?

Mr. Corish

I say ten days and the Deputy says ten days. There is no time on it. A reasonable time, I presume.

Mr. Wyse

There is no time?

Mr. Corish

Ten days is not the actual time. There is no reference to time but if it is presented within a reasonable time——

Mr. Wyse

I would be satisfied with a reasonable time to produce the licence.

Chairman

I would put it this way : if a guard stops an individual and he has drugs in his possession and he is asked if he has a licence or an exemption and he fails to produce any evidence for possession of that drug, the Director of Public Prosecutions proceeds to prosecute. In court it shall not be a defence to say you prove that I do not have a licence. It is in that context that I understand the Bill. I am not a lawyer. Perhaps Deputy O'Malley and the other Deputies with legal experience would assist us.

Dr. O'Connell

What about a man who returns from England without a prescription? What about a prescription that is not returned to the person?

Mr. Corish

Surely it would be a simple thing for him to say where he got the prescription.

Mr. Haughey

Let us get away from prescriptions. We are talking about a wider situation than simply producing or not producing a prescription. We are talking about the onus of proving lawful possession. There are ten different ways of proving that you had lawful possession. The onus should be on the prosecution to prove that you were not in lawful possession.

Mr. Corish

There are practical difficulties.

Mr. Haughey

There are practical difficulties in accusing a man of murder and convicting him of it and that is more serious than this.

Mr. Corish

This is much more serious than television licences.

Mr. Haughey

Yes, and that is why the onus of proof should be on the prosecution. Before you send a man to jail you have to be certain he committed the offence.

Chairman

I am trying to assist the Deputy. If a person so prosecuted says: "I have lawful possession of these particular drugs", the automatic assumption on your part is that he says to the prosecution: "You must prove that I have not". In effect, what the prosecution say is: "Produce evidence that you are in lawful possession". Like any other member of this Committee, I would detest any section which might have anything in it which would have an innocent person proved guilty.

Mr. Haughey

There is a simple principle involved here, that is, that the State calls a citizen before the court, and the time honoured situation is that the State must prove in black and white that this man is guilty of the offence of which he is accused. It is utterly wrong, no matter how serious the social evil is, to upset that basic principle and say: "You are before the court now. Prove you are innocent".

Chairman

You are before the court because you were in possession of drugs.

Mr. Haughey

You are before the court because the Garda accuse you of being in unlawful possession.

Chairman

No.

Mr. Haughey

That is what the courts are for, to establish the facts.

Chairman

The section deals with a situation where a defendant has been found to be in possession of drugs.

Mr. Haughey

With due respect, you would be better in attending to your impartial role as chairman.

Chairman

I am merely trying to tease it out. I have not made up my own mind.

Dr. Byrne

I see this as a twofold concept. If you find teenagers in possession of, say, 100 amphetamines and they are taken to court, the Director of Public Prosecutions must, first of all, satisfy himself that possession can be established. If a prescription can be produced under a special licence for these tablets, then there is no court case. I cannot see anything ominous in the section. It is spelling it out in detail, perhaps in too great detail. I would imagine that it was automatic that if any member of the medical profession or any other person, such as a chemist or manufacturer, was apprehended by the Garda for having drugs in his possession unlawfully he would have no problem in proving that the possession was lawful. I cannot see the opposition to the principle of the section, but I do not think the section should be spelled out in such detail. It would be natural for the doctor or patient or somebody who was apprehended to produce the prescription or licence. That would be normal procedure. Could we at this stage hear the legal views of the members of the Committee? We have a few legal minds and I would like to be directed from the legal point of view at this stage.

Mr. Esmonde

I have listened to this discussion and I appreciate the principle referred to by Deputy Haughey, but I do not understand his application of it in the context of this Bill. As I understand it, there are various named drugs and quantities and control, possession and usage of same or manufacture of same are dealt with but there are specific drugs that are mentioned. In other words, a person is not entitled to have possession of those drugs except in certain circumstances.

We start with the principle where the drugs are forbidden to people unless they have them in certain circumstances, and those are only specific circumstances. There is a principle, as I understand the law, and there is a decision of the late Mr. Justice Conor Maguire dealing with the matter, that where a person is forbidden something under a section, that there are exceptions, that the person who wants to avail of the exceptions has the duty of providing the proof that he comes within those circumstances. It is an old principle on the interpretation of statute law and criminal law. It does not impinge on what Deputy Haughey has referred to as the onus of proof. It is a practical implication of applying law to practical circumstances. Under this Bill, as I understand it, you have to be forbidden drugs and preparations, and section 2 and section 4 basically provide the exceptions.

I am worried about one matter rightly raised by Deputy O'Connell, when he referred to prescriptions. When a prescription is given which would entitle a person to have in his possession one of the forbidden preparations that prescription would be in the custody of a chemist or a drug firm or a hospital, and would not be in the possession of the person who had the drugs in his possession and was prime facie behaving illegally by having that drug unless he proved that he was within one of the exceptions, namely, having a licence for a prescription. If a person has a licence, permit or authorisation, other than a doctor’s prescription it would be easy enough to check on that and provide that proof. That would be an official document or order applying to that person or the establishment for which that person works. However, I see a difficulty arising in reference to prescriptions because of what Deputy O’Connell raised. Apart from that instance, I feel that if we were to allow this section to be repeated one would, as a lawyer subsequently appearing for a person in reference to any offence under this section, say: “We have the Haughey loophole on our side when we are accused”. I do not think Deputy Haughey or anyone on this Committee would like to be in the position of having provided an obvious loophole.

Mr. Haughey

We do not want slot-machine justice.

Mr. Esmonde

May I go back on historical facts? During the emergency we had a lot of statutory orders and legislation dealing with matters where people were not entitled to have things in their possession unless they had a licence or permit for them. When the late Deputy Lemass was Minister for Industry and Commerce he ran into considerable difficulty in trying to nail people in prosecutions who obviously illegally had goods in their possession but was unable to nail the offences. There was quite a furore between the legal profession and the Minister for Industry and Commerce. There was a debate in the Incorporated Law Society building which got to a very heated state between the Minister and the lawyers. The Minister had the responsibility to see that there was fair allocation of resources at that time. The principle is exactly the same here.

If we want a Bill that is practical, that can be applied and has provisions for the therapeutic side of people who appear to commit those offences, it is a charitable Bill in that respect. We must still provide the authority with the actual bare necessities of properly administering this Bill. If we did not have this section, I could see very few prosecutions being nailed, even of pushers and circulators of drugs. I am not so worried about the unfortunate consumer because I regard him more as a medical case, but I am seriously concerned that, if we did not have a section like this, people with money and resources at their disposal who could pay for lawyers who would be specialists in this kind of work, would not be nailed.

Mr. Haughey

The Deputy can relate it to section 15.

Mr. Esmonde

I am dealing with section 22 and the principle that is raised here. I see this as a serious matter. Deputy O'Connell's point about prescriptions could be dealt with by providing for a reasonable time limit and reasonable machinery whereby the person who had the drug is entitled to nominate a doctor or the source that he got it from and the onus would then be on the prosecution to investigate that and provide that evidence to show that the person was entitled to have the drug. A person who has not got a prescription is unable to have the prescription available. That is the only case now. I think Deputy O'Connell would agree with me on that. That can easily be dealt with by an amendment either under this section or in another section. On the general principle of proving a case under this Act, I can see serious difficulties arising.

There is one other principle involved. Where one is dealing with a matter of evidence it has always been a principle that a person who has specific knowledge and it is within his competence to produce that evidence, the onus is generally by the law placed on that person to produce that evidence. We go back to the first principle I referred to, namely, these drugs are forbidden unless and except in certain circumstances. We should look at it that way. This is a perfectly reasonable section. There are plenty of precedents for it, for example, the Fisheries Act and in regard to dangerous drugs, and television licences; but I am worried about the question of prescriptions.

Mr. Briscoe

There are a few aspects of this worrying me. Take the case of a person who is charged with being drunk in charge of a vehicle. The onus is on the prosecution to prove that the person was drunk in charge of a vehicle and after medical evidence has been taken to prove that he had the requisite amount of alcohol in his system to be deemed guilty of the offence. That is one case where the onus of proof is on the prosecution. Take an instance of where a young fellow has illegally drugs in his pocket and he sees a garda in the distance when he is walking with another young fellow and he quietly slips the drugs into the pocket of his friend. The garda stops them; he knows this fellow as being a bad character and he searches him. He finds nothing on him. He searches the other young fellow and he finds on him the drugs which, unknown to that kid, have been slipped into his pocket. He may find himself in a very serious situation. So that would worry me a little bit.

There is also the possibility of a person being framed by someone who has a vendetta against him and who tips off some member of the Garda. Maybe this is being very dramatic, but there is this possibility. We have been talking about television licences and so on. These are big objects; guns and heavy objects. You cannot slip any of these objects into somebody's pocket without their knowing what is happening, although no doubt it has been tried. But those two points worry me. If alcohol is treated in the same way—the onus being on the prosecution to prove that the person was at the time drunk or in excess of the amount he should have had, then it should also apply to drugs. I know we are trying to protect young people, but there are so many loopholes in this it seems to me that I would have to be convinced very much more before I could sort out——

Mr. Corish

It is not a good analogy.

Mr. Briscoe

There is medical evidence extracted, whereas you might not be able to get medical evidence in the case of a young person in possession of a drug.

Mr. Haughey

The Supreme Court have been very vigilant and have removed any form of automatic slot-machine justice from road traffic legislation. It has made the State produce the proof step by step and is not willing to accept various easy mechanical procedures. But surely the question is: are you going to throw the gates open or are you going to abide by the well-established onus of proof position that a man is innocent until the State proves step by step that he is guilty? That is a simple principle. You can get into all sort of side issues and so on as to whether he has lost the prescription or whether it can be traced. It is very simple. If a man is brought before the courts; must he set about proving his innocence? It could be very expensive for a person. Regulations can be made under section 5. What you are going to force a man to do if he is brought before the courts is, first of all, to produce the regulation under section 5 and then produce proof that he was in some way exempt by virtue of those regulations. That can be a difficult, tedious procedure, even if a person is innocent. That is why the well-established onus is on the prosecution. They have the machinery; they have the State; they have the jobs; they have all the records; they have everything The accused person has not got all these things. That is why this onus is on the State to prove these things because they have access to all the records and they must prove their case, whether a man is guilty or not.

Dr. Byrne

It must be recognised that a prescription is a private thing between patient, doctor and chemist, and it is not for the State to have access to a prescription for the amount of tablets a person might be taking. This is a very private thing. It would be up to the patient to produce the record number from the chemist. A chemist keeps a record of all controlled drugs which he is prescribing and he retains the prescription at the same time.

Dr. O'Connell

No record of GMS prescriptions is kept by chemists. They are only available—this is definite and any chemist will tell you that—in the drug prices bureau. Ring up any pharmacist and ask him. They have no record whatsoever because they have to send them back to the drug prices bureau and——

Dr. Byrne

They only send one section——

Dr. O'Connell

If this is not available at the chemists there would be serious problems for a person. We are talking here about protecting an innocent person, that is, a person who is legally entitled to have these controlled drugs in his possession. If that person cannot produce the proof in time, for instance, or produce the proof at all—and a person may have come from Britain and may have serious problems in getting it—the onus should be on the Garda to get this information for him.

Dr. Byrne

You could not possibly ask the Garda. In the case of GMS prescriptions—the chemist does, in fact, keep a carbon copy of prescriptions paid for by the Eastern Health Board and sends on the original for payment to the health board—it is not up to the Garda to find out the confidential nature of prescriptions but it would be up to the patient to give this information. The doctor would have no authority, ethically, to inform the Garda Síochána of any written prescription. He would have to have the patient's written permission before he could do that.

Mr. O'Malley

One of the things that strikes me about this section is that the provisions of it are not just limited to a couple of specific offences, which is what one might expect if it was felt that a section such as this was necessary. Both the subsections here start off by saying, "In any proceedings for an offence under this Act . . .". There are dozens and dozens of offences under the Act of an enormously great variety. Unless you are familiar with the whole Bill this makes it difficult to consider one section and to comprehend the great variety of offences where the onus appears to be on the defendant.

The point made by Deputy Briscoe in relation to this has a lot to commend it—the point in relation to the possibility of somebody coming into possession of drugs without being aware that he was in possession of them. That is not impossible at all. One instance would be somebody giving, say, a young person a parcel to deliver to somebody else which might quite conceivably contain drugs. Another situation that one could envisage quite easily is the aftermath of a party in a flat. A young person may decide to hold a party. He may ask ten, 15 or 20 people to the party. It is not unknown nowadays to have people arriving at a party who perhaps were not invited or are not known to the host. They leave behind them certain articles that they had with them when they were at the party. The following morning, while the host is still asleep after the party, the guards, acting either on their own initiative or as a result of a tip-off or otherwise, can arrive at that flat and search, and the host who may never have handled drugs in his life may be in the position that he has in his flat and therefore in his possession a quantity of drugs.

He is liable to potentially heavy penalties under this Bill He is faced with a situation, because of section 22, that it is not enough for him to swear that he did not know they were there. It is not enough for him, for example, as it would be in a normal criminal case, to create doubt in the mind of the jury or the tribunal. He must go far beyond that. He must prove to the tribunal, whether it is a jury or a district justice hearing the case, that he was lawfully or innocently in possession of the drugs. In the aftermath of the party, it would be virtually impossible for him to prove that he was lawfully or innocently in possession. If in the normal way the onus of proof were on the prosecution and they proved that they found drugs in the flat, that, of itself, would be discharging their onus of proof. It would then be up to the defendant in the normal process of law not to prove that he had them innocently but at least to create some reasonable doubt in the mind of the district justice or the jury. If he went into the witness box and swore on oath that he had never had drugs in his life, that he had a party the night before in his flat, that he had people there, that he did not know some of them and that it was possible that some of them brought the drugs in and left them on his premises after them, that would generally be sufficient, provided they believed it, to ensure that he would not be convicted.

Chairman

Would that apply, say, in the case of firearms?

Mr. O'Malley

Yes, it would apply. It worries me somewhat to see so broad a provision as this. One does not like to see provisions of this kind where they are avoidable. But I readily concede that there are certain circumstances where they are unavoidable. Possibly there are some specific offences under this Bill where it might be necessary to have such a provision. I have not been as good an attender at this Committee as many others who are here, and therefore I am not as familiar with all the ins and outs of it——

Mr. Haughey

If I may suggest, there is a way of proceeding under section 15. That takes care of the pusher.

Mr. O'Malley

I would suggest to the Minister that the phrase which is used here, "in any proceedings for an offence under this Act," is far too wide, that he might consider not asking to have this section passed, but take it out for the time being and we could recommit part of it again on Report Stage. In the meantime his advisers and the Office of the Attorney General might have a look at the Bill with a view to confining drastically the number of situations in which this kind of provision would have to be applied.

The Minister gave a number of examples of what he called the transfer of onus of proof from the State or prosecution to the defendant. I am not at all certain that the examples he gave are valid ones from the point of view of any sort of analogy with this. One which he gave was the production of a licence or an insurance policy under the Road Traffic Act. He said if the man did not produce it he was more or less automatically considered guilty and that he would have to produce the licence or policy in court if he were to prevent the court from convicting him. That is not the position. Under the Road Traffic Act there is provision for two different offences in this category and a person cannot be convicted on both. One is not having a licence or insurance and the other one is not producing the licence or insurance policy. The onus is on the State to prove that a person has not got a licence or an insurance policy in force at the time. The reason the second offence is inserted—not producing the licence or not producing the insurance policy—is to cover the situation where the State cannot prove that he did not have a licence or an insurance policy. It would clearly be wrong and administratively very undesirable if a person who refused to produce a licence or an insurance policy were to get away scot free. Accordingly, what happens in such a situation where the State cannot prove the non-existence of a licence or non-existence of an insurance policy, is that the court convicts for non-production, which is a lesser offence.

Mr. Esmonde

Should we have that in this case? Should we say it would be an offence not to produce a prescription or a licence?

Mr. O'Malley

It might be a way of dealing with it.

Mr. Haughey

The section covers other cases than just prescriptions or licences.

Mr. O'Malley

The Minister will, I am sure, accept that this is the position, that there are two categories of offences and the reason for the second category is that the State would run into considerable difficulty in proving the non-existence of the licence or the insurance policy. Frequently there are cases where a person is actually convicted of not having a licence or an insurance policy, but in all such cases he admitted that he had not got them. Alternatively, he produced a policy which was out of date or invalid in some other way, and because of his production of something that was invalid or out of date, as in the case of a driving licence, the prosecution were thereby able to prove that he did not have one. But in many cases where there is no admission of that kind the conviction is for non-production. It is not for not having and, therefore, it is not correct to say that the onus in those cases is transferred.

In television licence cases the procedure is that an inspector from the Department of Posts and Telegraphs goes into the witness box and takes the oath. He has with him the records of the local GPO, the records of everybody in Limerick city or where-ever the case may be, who has a valid television licence in respect of a certain premises on certain days. It is a register. He says: "I visited John Smith at 150 O'Connell Street, Limerick, on 5th November last. He had a television set. According to the records he had no licence". The inspector has proved that the man did not have a television licence. If John Smith does not come along and produce a licence, he is convicted. That is fair enough because it has actually been proven that he had not got one. It was not a case that John Smith had a television set on 5th November last, full stop, and it is then up to John Smith to prove he had a licence. It was that John Smith had a television set and he did not have a licence because the inspector checked this from the register. The onus of proof is on the State and they discharge that onus.

I suggest that the Minister is not using the right analogies in using these as examples of the transfer of onus of proof. The transfer of onus of proof in our legislation, as Deputy Haughey says, is very rare, and with reason it is very rare. Administratively and otherwise it might have been thought justifiable to have it to a greater extent than exists at the moment in the case of road traffic and television offences and so on, but significantly enough that has not been done. The onus in all these cases has been left on the State. As Deputy Haughey says, these are comparatively minor administrative matters, things like television licences and driving licences. What we are dealing with in this Bill is not a minor administrative matter. It is a very important matter indeed, a serious matter. It is serious from the point of view of the State and of the general community, and particularly serious from the point of view of individuals. A conviction for an offence under this Bill is something which will be a major cloud over a young person's whole life for many years afterwards. It is not a minor, trivial thing like a conviction for a licence or insurance where there is no great moral culpability or social restraint involved. The offences created here are very serious—not serious in the normal criminal sense but much more serious from the point of view of the individual and his whole outlook on life.

Therefore, while possibly the case could be made in the sort of instance that Deputy Haughey suggested with regard to section 15 and perhaps in other sections for the location of a provision of this kind, to have it apply to every offence under the Bill is, in my view, far too wide. The section should be withdrawn for the time being and brought back in a form amended to the extent that it would apply only to such offences as the Department and this Committee were satisfied were ones that it should properly apply to and where an impossible situation would be created if the section did not apply to that limited category.

Mr. Esmonde

There was some criticism of the section in the light of where, say, after a party drugs were found on the premises. Section 19 deals with that situation, and we should not lose sight of the fact that the word "knowingly" is used there. Any court of law has to take the balance of evidence and would apply the law in a similar onus of proof provision.

I agree with a lot of what Deputy O'Malley said. His suggestion about failure to produce a licence or a permit might be utilised as a back-up offence where complexities arise in proving the substantial offence which the authority set out to prove.

I am not disagreeing with the principles that Deputy O'Malley was talking about because I found myself in agreement with him. He probably agrees with the views that I expressed on this Bill. He did give by way of example the case of a television licence. There is a difficulty in that because it is very simple to produce a local record because you are dealing with something that is in situ and attached to promises in the area. It is very easy to say whether a person has a licence or not. The difficulty that the Minister is faced with under this section is that a person could have the forbidden drugs, if I may use that phrase, in his possession. He could have obtained them anywhere—in the British Isles, Europe or on the Continent, on a doctor’s prescription. This is the one thing that worried me a little bit. The possession of forbidden drugs without a licence or a doctor’s prescription is the important thing. That is a sensible offence to bring into the Bill. It would act as a back-up to any prosecution. I want to emphasise that if there is a difficulty about obtaining proof there must be fair machinery available to the accused to produce that.

Deputy Briscoe referred to the possibility of somebody shifting a drug. This has happened in relation to stolen goods and it raises the question of the offence of being a receiver in possession of stolen goods. The courts have always been very careful about this. They just do not accept the evidence as produced. They always listen very carefully to the explanation. I have defended in cases like that and I am sure Deputy O'Malley has probably defended in cases where such circumstances arose. We all know what human nature is so that kind of circumstance can arise particularly if the item is small. This has happened about jewellery, in customs cases where people have slipped things to each other and the other person has been caught with the lot.

One has to take the words "knowingly" and "onus of proof" into consideration. Courts do not accept what a guard or officer will say on a matter like this, particularly where drugs are concerned.

Mr. Haughey

I want to make one final point. I am sorry for interrupting Deputy Esmonde when he was talking. The points he was making about pushers could very easily be dealt with by confining the operation of section 22 to offences under section 15. We are centring this debate far too much on the existence of licences or prescriptions. Under section 5 the Minister can make regulations governing a whole variety of situations. For instance, he can make regulations governing the transportation of controlled drugs. A person could be entitled to have controlled drugs in his lawful possession under one of these regulations. There would be no question of a licence, permit or a document of any sort. I want to get away from the question that it is simply a matter for the accused person producing or not producing a licence, permit or document of some sort. It is far wider than that. The whole variety of situations under section 5 could make a person entitled to have these drugs in his lawful possession for purposes laid down in regulations. That is where he would have to set about proving that he was the sort of person who came under the regulation, that he was employed in such and such a place, and he would have to bring his employer along to prove that his duties involved him in handling and transporting these drugs.

Mr. Corish

We will take the point about the TV licence. It is like being caught in a pub. It is an honour in some areas.

Mr. Haughey

I do not think it is a good analogy.

Mr. Corish

We will forget that point just for the present. It should be pointed out that as far as section 22 is concerned, if drugs are found on a person and he protests that he has them legally and says, "It is up to you to prove whether or not I have a licence," the simple and honest defence would be to say, "I have a licence", or authority, permit or prescription. It is only in these circumstances that the onus of proof is on the person who is charged to produce it. It may not be a proper analogy either in so far as TV licences are concerned. The list system in an area would be sufficient proof to say whether or not a person had a TV licence. We are dealing with a commodity that can be taken illegally, stolen or prescribed legally or authorised legally in any part of the country.

There is a suggestion that the onus should be on the Garda to prove by exhaustive inquiries whether a person is lawfully in possession of drugs or not. They just could not contact every doctor or pharmacist in the country to find out whether a person had controlled drugs illegally. What has anybody to fear if, with drugs in his possession he is able to say: "I have a prescription" or : "Here is my authorisation" or "I will produce it within a certain time" or "You can go to the pharmacist from whom I got the drugs and he will confirm that the drugs were issued for me there"?

As far as the prescriptions are concerned in the GM service two forms were given; this is not so in the case of private prescriptions but a note is taken of the prescription issued. It is only one document.

It is not relevant to the section to talk of somebody putting cannabis or some other drug into somebody else's pocket.

Mr. Briscoe

Or car.

Mr. Corish

Or car, or to suggest that an owner is responsible, or that he should be asked to prove his innocence if drugs are found in his house after a party. The gardaí should prove that he knowingly allowed this sort of practice to go on and knew that these drugs were actually in the house. Again, I quote from section 34 of the Dangerous Drugs Act, 1934, which is concerned with the control of certain scheduled drugs as well:

In any proceedings for an offence under this Act, it shall not be necessary to negative by evidence any permit, licence, authority, or other matters of exception or defence, and the burden of proving such matter shall rest on the person seeking to avail himself thereof.

This is only what I am trying to attain in section 22. I have quoted very many examples such as the Road Traffic Act, the Health Act, in particular and the Wildlife Bill which is at Committee Stage in the Seanad at present. I can appreciate the fears of Deputies, but I also have a fear that, if we do not have this in respect of this particular part of the Bill, we will be doing a lot of harm to the good we have done since we came to section 22.

Mr. Haughey

The Minister keeps referring to prescriptions. It is simply a matter of producing a prescription. That is the end of it. Will he look at subsection (2) (b)?

a defendant was a person to whom an exception under regulations made under section 5 of this Act applied,. . .

There is no question of any document, licence or prescription. There you have to come into a whole set of circumstances. You make the regulations under section 5.

Mr. Corish

Section 5 deals with the licensing, manufacturing and transporting of controlled drugs.

Mr. Haughey

It deals with with a whole series of regulations which the Minister for Health can make, prescribing the circumstances under which it is lawful for people to have these drugs in their possession. We have been through it all and we envisaged all sorts of people who would be exempted by regulations made by the Minister for Health from illegal possession of controlled drugs.

Under section 22, subsection (2) (b) the onus of proof shifts to the person. He would have to set about proving at great expense, and it may be an impossibility, that he was the sort of person who was exempt by virtue of the regulations because of his employment, or the category of person he was, or some other reason like that.

Mr. Corish

Would it be a difficult thing for any innocent person who was found in possession of a controlled drug to produce the authorisation within a specified time? This section only refers to those who protest that they have licenses or authorisations.

Mr. Haughey

No, "a defendant was a person to whom an exception under regulations made under section 5 of this Act applied . . .".

Mr. Esmonde

We are losing track of one thing here. You cannot have these drugs which are listed in the Schedule unless you have an authorisation.

Mr. Haughey

No, you can. The Minister can make a regulation under section 5 authorising all sorts of people to have them in their possession.

Mr. Esmonde

You cannot have them unless there is an authorisation.

Mr. Corish

It must be certain people.

Dr. Byrne

There is nothing to insulate any member of our State who travels, for instance, to France or Spain with sleeping tablets or heavy pain killers with them. There is nothing to prevent them from being prosecuted. The same would apply in relation to what Deputy O'Connell and Deputy Esmonde said about the difficulties which visitors to this country might have in producing a prescription. This applies to everybody in this country who goes abroad. If they go abroad to the United States with a prescription for Mandrax and are caught without an authorisation, they would have to write back to their own doctor to get proof. This applies to everyone. There is no way you could insulate against that.

I cannot see any problem with this section apart from the two-fold concept of principle involved in it. Section 19 takes care of what Deputy O'Malley was saying, and we discussed that at great length.

Mr. Haughey

Deputy O'Malley has made a very important point. Under the Road Traffic Act, the State has to prove that you did not have a licence or insurance.

Dr. Byrne

Under our legislation and under the medical system as it exists, it would be impossible for a member of the Garda Síochána to check with each chemist whether that chemist had a prescription for a particular person. The bureaucracy involved in that would be wholly inhuman.

Quite recently a case occurred where this person forged a prescription for 63,000 tablets done in very good medical terms. That was prescribed, but it was not done in the area where the person was a patient; it was taken miles away. How could the Garda Síochána, only for the fact that the chemist, rather lately, contacted the Drug Squad just to check, possibly trace or contact each chemist in any health board area to see whether this prescription existed? If the person claimed when he was caught with tablets: "I have them legally; I have a prescription. It is up to you to find the prescription", where can you go to?

Mr. Haughey

If the State cannot prove it, he is innocent. You have a mental picture of all the people who are brought before the courts being guilty and, therefore, the quickest thing is to get them to jail as quickly as possible. I just happen to have a different concept of justice. If a man is brought before the courts of this country and is going to be deprived of his liberty, somebody must prove beyond doubt that he is guilty. There should be no automatic assumption whatever. If it is bureaucratically difficult for the State to prove it, and if they cannot do it, he is innocent.

Dr. Byrne

This section only applies to a person who says: "Look, I have a prescription. I am authorised by licence to have it". That person must show his licence or authorisation.

(Interruptions.)

Dr. Byrne

This section applies to a person only when he is caught with the drugs in his possession and says: "I am authorised to have them". If he is a registered doctor or chemist and has a licence or authorisation it is up to him to show it. But it does not apply to a person who has not got a licence and who says: "Okay, you caught me red-handed". There is no onus on him to prove that he has a licence.

Chairman

He is not aware he has it.

Mr. Wyse

I was anxious to get the legal views on this because the doctors differ, as usual. We are in a very sensitive area, but the effectiveness of the Bill is in this section. There may be a composition of circumstances as outlined here by Deputy Briscoe and Deputy Haughey. I agree with what Deputy O'Malley has said, that such a section must be here if the Bill is to be effective. Otherwise what we are doing here is creating the perfect murder; it cannot be proved. As Deputy Esmonde said, a prescription can be traced back, and I am happy about that. At the beginning we were talking about how to make this Bill effective, that people dealing with drugs should be registered, a book-keeping system and so on, to ensure that the Bill is suited the purpose it is now being designed for. We are in a very sensitive area and I would like if the Minister would look at it. I am convinced that something similar to section 22 must be in this Bill if it is to be effective.

Dr. O'Connell

The Minister was going to ask something.

Mr. Corish

Could I ask Deputy O'Connell if in the GMS there is duplicate prescription?

Dr. O'Connell

Yes.

Mr. Corish

In the case of a private prescription there is only one document issued. The chemist registers that in a book so therefore the prescription from the GMS could be traced.

Dr. O'Connell

I was speaking to a chemist who is one of the men who negotiated the arrangements with the Department and he tells me that it is riddled with loopholes at the moment, that under the old Act of 1934 he had to keep a prescription for two years—he does not have to do that any more—and he would not get paid for two years. That is the first loophole. Secondly, there is an added problem in that he would not give the prescription back to the person so that that would create another problem, and he said that is an important one.

Dr. Byrne

The Deputy is mixing it up.

Dr. O'Connell

No, I am not mixing it up.

Dr. Byrne

There is a duplicate prescription in the GMS.

Dr. O'Connell

I have talked to this man and that is what he says.

Mr. Haughey

In most of these cases there would be no prescription.

Dr. O'Connell

No prescription.

Mr. Wyse

Is the Deputy telling us that doctors keep no register on patients? If a person comes to Deputy O'Connell in the morning and he gives him a prescription and he goes to a chemist and, perhaps, days later the patient dies, does he mean that you cannot be traced back?

Dr. O'Connell

That is not the point. We are talking about whether the prescription will be returned to a patient. In the interest of preventing abuse of the drug, the prescription is kept and he will not return it to a patient.

Dr. Byrne

But he cannot give it to the Garda Síochána because it is an ethically private document.

Dr. O'Connell

He will not return it to the patient.

Mr. Esmonde

Take the case of a paying patient, and say I am given a prescription by Deputy O'Connell for one listed drug. I am walking down some street miles away from my home town; I am stopped and I say I have got a prescription. On a certain reading of the section it might be that I would have to produce that prescription. This is what is concerning the Minister. Would it be sufficient for me, if I am charged or prosecuted, to say to the investigating officer: "I got a prescription from Dr. X for these pills and I handed it in to such-and-such a chemist". I am concerned about whether it is necessary to produce the document?

Dr. O'Connell

That is right. It is important.

Mr. Esmonde

If it is not necessary for me under those circumstances to produce the document and at the same time the investigating officer is given particulars by me, the investigating officer can go to the doctor and to the chemist and say: "I am acting under such-and-such a section of this Act. I have interviewed Mr. A on such-and-such a date and he has certain things in his possession. I am asking you did you prescribe these".

Mr. Corish

That sort of evidence would be accepted.

Mr. Esmonde

Provided it is not the production of the document.

Mr. Haughey

How can the Minister tell the Deputy what would be accepted in court?

Mr. Esmonde

This is what I want to clarify. I am putting this to the Minister because this will be on the public record, and if this section or one like it is to be implemented, we want to know is it necessary for me in order to maintain my innocence to produce that prescription.

Mr. Corish

No. The section says "proof of existence".

Mr. Esmonde

Proof of existence can be interpreted in various ways. There is an old rule that the best evidence is the only proper evidence. The best evidence is the document. I cannot produce the document. This is where it might be necessary to amend either this section or an earlier section where a person lawfully has drugs in his possession. I see this as a legal difficulty. It is open to two interpretations.

Dr. Byrne

All you have to do is to prove the existence of the prescription or the duplicate.

Mr. Esmonde

I am sorry. If that is so, it should be said in the section.

Dr. Byrne

It is said in the section: "And accordingly the onus of proving the existence of any such licence, permit or authorisation . . .".

Mr. Esmonde

This is important. To prove the existence of any document the normal procedure in a court of law is to produce that document or a certified copy of it that is acceptable to a court of law. That is not in the section. This is the difficulty. I approve the section as it stands because there are plenty of elements in section 19 to get over the difficulties that were raised concerning premises and possession. But on this one I do see a legal difficulty.

Chairman

Would it not be normal, may I ask you with your legal knowledge, for a case of that nature to be adjourned to enable the defendant to produce such evidence?

Mr. Esmonde

That is not an answer. Sometimes it is, but the point is that I am claiming an exception. It is a prohibited drug and I should not have it except under certain circumstances. I am a private patient of a doctor. I must have the best evidence in a court of law because I am claiming the right of an exception, that I am entitled under the Act to have it. As the section stands at the moment I cannot do that, because I cannot get back the prescription from the chemist unless I produce the chemist and his books in court and I should not have to do that to prove my innocence if I am innocent.

Mr. Haughey

You should not have to prove your innocence at all.

Mr. Esmonde

Deputy Haughey is fogging my argument on this. As Deputy Wyse says, we must have a section like this if the Act is to work. It is the general consensus of agreement of this Committee that there should be a section like this in the Bill. These sort of matters will have to be cleared up. The section as it stands at the moment has dangers for the individual.

Chairman

Certainly between now and our next meeting we may have an opportunity of having a fresh look at the section. The section is central to the Bill in many ways. I accept Deputy Haughey's point.

Mr. Haughey

For all my other interruptions I apologise.

Mr. Briscoe

I do not want an answer now but what worries me is that a person might vindictively without any ulterior motive slip drugs——

Mr. Corish

The onus is proved there. This section applies only in cases of people who when charged say that they have authorisation.

Mr. Haughey

Or is exempt from the regulations?

Mr. Corish

Yes, who claim they are.

Chairman

An ordinary person framed or duped is not liable to proceedings under section 22.

Mr. Haughey

If he is claiming he works in a wholesale pharmaceutical firm, must he go and get a certificate from his employer or will the Garda phone up?

Chairman

The Minister will have made a regulation. I share Deputy Haughey's point that there could be grave dangers under the section, but we will have to guard against them.

Mr. Corish

The Garda are reasonable men and they will not act in an unreasonable way.

The Committee adjourned at 5.32 p.m. until 4 p.m. on Wednesday, 12th May, 1976.