Deputy C. Lynch is deputising.
SECTION 22.
Deputy Lynch is very welcome. We will resume on section 22, the section relating to the onus of proof.
Question again proposed: " That section 22 stand part of the Bill."
We have discussed this section at great length. Our final suggestion is that section 22 be confined to section 15, the section dealing with pushers. If the Minister would agree to that and undertake to make the amendment later on we will let the section go. Otherwise, we will have to divide on it. We do not particularly wish to have votes; we are prepared to proceed by way of consensus, if the Minister could confine section 22 to the operation of section 15.
I regret I could not accept that suggestion. I appreciate that the Deputy wants to ensure we have the best Bill possible. The main grounds of argument on this question the last time was that this involved a fundamental change in our legal procedure. It was also suggested that it was a precedent in that the defendant was regarded as being guilty without his innocence being proved. This is not so; it is a misrepresentation of the section. I should like to reiterate what the section means. If a person, when challenged by a garda who suspects him of having controlled drugs in his possession, replies that he has a licence, authority or prescription, he produces it there and then if he has it on his person; or he will be given adequate time within which to produce it or, names the doctor who gave him the prescription or the pharmacist who filled it. This would apply in court also. If, at court stage, he did not produce the licence or the authority to have it for his personal use or authority to manufacture, import, export or transport he would be given time to do so. In respect of many of the cases, authority to manufacture would be relatively easy to determine because the authority would be given by the Minister for Health. I am concerned about one of the most urgent problems we have. I cannot say, with any degree of accuracy, what the drug scene is. All I can do not being a native of Dublin myself and I know it is not confined to Dublin, is to have regard to the various contributions made during the debate on Second Stage. It seems that there is drug abuse in Dublin, Cork and in other parts. If we are to hamstring the gardaí and the courts it would be extremely difficult to prove.
It is not the gardaí; it is the courts we are talking about, the prosecution in a court.
I mentioned court also. There is a fairly common provision in our Acts. It is a device where licence or exemption is required so that a person may be within the law. The section has nothing to do with the defendant being presumed guilty until he is proved innocent. The procedure is to ensure that where the defendant claims he is legally in possession of the controlled drug he must show evidence to that effect. Surely, it is in his own interest to do so. But if he just thumbs his nose to a guard, or in court and says he has a prescription or authority, it is not unreasonable to suggest, as in this section, that he say where this authority is or that he produce this authority.
I do not want to prolong this unduly, but I should like to emphasise that this provision is not a precedent. Some Deputies may be stampeded by the description of the section which talks about onus of proof. In that regard onus of proof is a description of a section that is not peculiar to this Bill. I do not want to appear to be smart but this is a Bill that was published by the last Government. I am sure they deliberated for quite a time on this section. It was also introduced, and is on the books still, as a Private Members' Bill by Deputy O'Malley. There are many precedents for this and in less serious cases. We have the Firearms Act, 1964, which was introduced by Deputy Haughey. I should like to quote Section 24 (1) of that Act which says:
Where, in a prosecution for an offence under the Principal Act, the existence or non-existence of a firearm certificate, a licence under section 17 of the Principal Act, an authorisation under section 2 of the Principal Act, a permit under section 3 of this Act or an authorisation under section 13 of this Act is material, it shall not be necessary to prove that the certificate, licence, authorisation or permit does not exist.
It goes on to state in subsection (2):
Where, in a prosecution for an offence under the Principal Act, possession, use or carriage of a firearm or ammunition by a person is proved, it shall not be necessary to prove that the person was not entitled to have in his possession, use or carry a firearm or ammunition.
There is a similar provision in the Dangerous Drugs Act, 1934. Section 34 of that Act states:
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.
Again, that particular paragraph is described as onus of proof. Section 97 of the Health Act, 1947, states:
In any prosecution for an offence under this Act, it shall not be necessary to negative by evidence any permit, licence or exemption under this Act or under any regulations under this Act, and the onus of proving any such permit, licence or exemption shall be on the person seeking to avail himself thereof.
I want to quote again section 10 (5) of the Road Traffic Act, 1968 which states:
In a prosecution for an offence under this section in which a licence under regulations under this section is material, it shall be presumed, until the contrary is shown by the defendant, that at the material time, such a licence, then having effect, was not held.
Deputy O'Malley spoke about the Wireless Telegraphy Act. I do not think it was a proper analogy. It possibly was a short cut procedure which was operated in a particular part of the country wherein there was a record of all the licences issued in the Limerick area and if a man was excluded he was charged, but if he was included he was not charged. That may be the practice in a certain part but the possibility is that a licence might be held in some other part of the country and the record kept in Limerick, or any other place, would not show this. Section 9 (2) of the Wireless Telegraphy Act, 1972, states:
In a prosecution for an offence under the said section 3 in which it appears (whether by virtue of subsection (1) of this section or otherwise) that a person kept or had in his possession an apparatus for wireless telegraphy at the time to which the prosecution relates, it shall be presumed, until the contrary is shown by the defendant, that he did not at such time hold a licence under the Principal Act then having effect and licensing him to keep or have in his possession the apparatus to which the prosecution relates.
The Wildlife Bill passed by the Seanad and now before a Special Committee, contains a similar sort of provision in section 71. That section provides that in any proceedings for an offence under this Act, it shall not be necessary to (a) negative by evidence the existence of any order under section 24 or 25 of this Act or any licence or permission under this Act and (b) prove that any act which is the subject of the proceedings was not caused by or the result or effect of, or was not consequent upon any other thing lawfully done. That section goes on to say:
and the onus of proving such licence or permission or that such act was so caused or was such a result or effect or was so consequent upon shall be on, in the case of such a licence or permission, the person seeking to avail himself thereof, or in any other case,
Another matter raised towards the end of our discussion last time was with regard to what could be a problem about prescriptions. Where a defendant may not be able to produce the prescription because it was lodged with a pharmacist that can be checked with the pharmacist. If he has the prescription, that is all right and if he has not and he names the doctor or pharmacist it can be obtained from them. If he has not got it on his person—possibly he would not have—he is asked to produce it within a reasonable time.
In all the circumstances I suggest that this is not a precedent or an incursion on the liberties of any individual. I quoted many Acts which suggest that where a person is accosted by a guard or is brought before the courts, it is not unreasonable, if he protests his innocence and identifies the source from which he got the authorisation, prescription or licence.
Last time when we were debating this it was not clear that what this section really states is that if any person who has possession of drugs claim he is authorised under sections 4 and 5 to be in possession, then he has to produce that authorisation.
In respect of designated persons such as doctors, dentists, pharmacists and veterinary surgeons, they are exempt.
If I say I am authorised, if I am asked to produce that authorisation and if I fail to produce it I will be brought to court. If the judge asks, where is the authorisation and I cannot produce it——
If a man has drugs in his possession and claims he is a doctor——
That was not explained clearly before now.
In a small locality surely the doctor would be recognised.
It is only where persons claim under sections 4 and 5 that they are authorised that the onus is on them to produce the authority.
That they are lawfully in possession. My point is that there might not be a document.
He will be authorised to carry drugs if he is a doctor under the regulations.
I think we have discussed this long enough. I suggest that the list of precedents the Minister gave is not the same as that with which we are dealing here. This section is not solely concerned with the production of documents. It also envisages the elaboration of circumstances in which it could be lawful for a person to have drugs in his possession. We are quite prepared to shift the onus of proof so far as section 15 is concerned but because of the very delicate area in which this Bill proposes to operate section 22 should not transfer the onus of proof in other proceedings.
May I ask Deputy Haughey about section 19? In cases where persons are authorised to have the drugs on their premises, surely the onus shall be on them?
That might be a person who would be before the courts, not on charges of pushing or peddling. He might be a perfectly innocent person and I do not want to see the onus transferred in that case. I am reluctantly prepared to have the onus transferred so far as section 15 is concerned because that concerns the pushers but in other cases the normal law of evidence should obtain where the State must prove its case.
Proving a case could be a wild goose chase.
That applies to any branch of the law.
Let us be reasonable about it. If the person is charged he can say he has a licence or a prescription. The Deputy's argument is that he should not have to produce that prescription.
No. I am saying that when a person is in court on a criminal prosecution there are circumstances other than the simple production of documents. The section envisages the onus of proof transferring to the defendant in cases where he can establish that he lawfully had drugs in his possession. That would not necessarily mean that he had them lawfully because a document was concerned. I do not think that in the normal course of events an accused person should have this onus of proof shifted on to him, whether in the area of drugs or any other area.
Does Deputy Haughey envisage that where a person has barbiturates in his possession the Garda Síochána should have to prove that the prescription or authorisation did not exist? Surely they could not contact every chemist? Without this section in the Bill, I can envisage a person who is caught with barbiturates in his possession saying to the guards that they will have to prove he was not authorised to have them. As regards a person trying to produce proof, say, in the case mentioned last week, any prescription or any drugs under this legislation will have to be recorded three times; first the prescription is retained by the chemist, secondly, it is put into the Drugs Registration book and if it is under the Dangerous Drugs Act it is recorded in the Poisons Book. Three records can be produced apart from the doctor's own record.
I do not think there is any problem here. I know the document does not always exist, that the doctor or general practitioner does not actually have to have a document to show that he is entitled to have the drugs but he will have some form of identification to show who he is. In the discussion earlier about people who might be entitled to carry these drugs, the word " chiseller " was mentioned. That young person could be caught with a month's supply of barbiturates for his mother. He has no authorisation to have them on him. Under a previous amendment I tried to discuss this problem. He is not entitled to have the drugs. There is no document which says he is entitled to have them because the prescription is made out to his mother. He is not an employee or a delivery boy of the chemist. Without this section, it would be impossible for the Garda Síochána to attempt to prove that each person was entitled to have them. The onus of proof here is quite simple.
Under section 4 it is stated that you may have a controlled drug in your possession for the purposes of your profession. Even though you are a member of the profession you will have to prove that if section 22 stands.
I would not be worried about that.
I would.
The guard must have reasonable grounds for suspecting.
We are beyond that stage. We are dealing with proceedings in court.
Would the Deputy care to comment on the various provisions that have been made in the Bill?
They are not analogous with this.
There has been a considerable understanding of the section since our last meeting. Surely Deputy Haughey understands that where a defendent——
I reject the suggestion that it is implicit in what the Chair is saying. I believe I understood the implications of this section from the beginning.
I will put it in my own way. Where a defendant comes before the court for possession and he maintains he has an authorisation or a permit, it simply devolves on the defendant then to clear up the case and produce evidence that he has documentation.
One of the arguments I have been consistently putting forward in the interpretation of section 22 is asking the Committee to get away from the assumption that there must be a document. Section 22 deals with circumstances where there might be no document. This Committee are trying to say that it is a simple matter of producing a document. There may be cases under section 22 where no document may be concerned.
I find it inconceivable to elaborate the circumstances where a ministerial regulation is totally absent——
It is quite simple. It is quite common for a nurse to have drugs.
She is an authorised person.
Yes, but she has no authorisation——
That nurse might be going to a patient or she might be going to a party. The garda could say she was going to a party where these drugs might be used illicitly. The onus is placed on her to prove that they were not going to be used illicitly.
There is a provision which states " the Minister may make regulations concerning transportation of controlled drugs " and I have not the slightest doubt that in relation to pharmacists, nurses, doctors, chemists and dentists such regulations would cover such authorised personnel.
There is something else which has not been adverted to so far. Deputy Haughey referred to section 4 (2) dealing with regulations. The Minister cannot just sit on the fence because it says:
Subject to section 13 of this Act, the Minister shall exercise his power to make regulations under this section so as to secure that it is not unlawful under this Act . . .
The Minister must make regulations——
It also states ". . . for a qualified person to have a controlled drug in his possession for the purpose of his profession or business ". Therefore a nurse or a doctor or somebody else would have the onus of proof placed on them to prove that they had such drugs for professional purposes and not for use at a party or for personal consumption.
Is that not fair?
It is not fair. The Committee are running away with the concept that all that is necessary is to produce a licence or prescription. I want to say that the person can be brought before the court where he will have to establish circumstances and conditions that are not covered by any document.
Is that not the situation that exists at present? Doctors and nurses have always worked under the legislation of the 1934 Act and this measure is merely copperfastening it.
If we on this side are prepared to acknowledge the shifting of onus of proof in the case where pushing is concerned, that should be sufficient for the Minister's purpose. Where it is simply a question of bringing ordinary people before the court and convicting them for simple possession I do not think that the onus of proof in that case should shift to the defendant.
How does the Deputy reconcile that with section 24 of the Firearms Act, 1964, where the onus of proof is on the defendent to prove that he had a licence to be in possession of a firearm?
There is a document concerned.
I have certain reservations on this matter. I am mainly concerned with the pusher and I want to make quite sure that in all sections there is no loophole for him. I asked a number of legal people for their opinion but I cannot get any definite information from them. I should like to look at this section again, and perhaps, express my view later. For example, say, Deputy Haughey is the leader of the pushing gang and he sends me down to O'Connell Street to deliver drugs to somebody. A garda picks me up and I am brought before the courts.
Before you get before the justice the garda will ask you for an authorisation to have the drugs.
I have no authorisation at the time. I appear before the justice and the justice asks the garda if he has any further evidence and he replies that he has not. The justice will then say to me that I have been found with illegal drugs in my possession, that that is the only evidence before the court and that it is up to me now to prove that I have an authorisation for possession. We may be arguing here about something that is not that important. I am after the pusher because the others are the innocent victims. A person is under an obligation in the court, if the garda cannot produce any further evidence other than finding the drugs on him, to produce evidence of an authorisation from a doctor or a psychiatrist.
What is the point?
My point is that if section 15 satisfies me where the pusher is concerned, then, perhaps, we could have another look at this whole section and also at Deputy Haughey's point on section 22.
Section 15 has nothing to do with that.
The case Deputy Wyse postulates is an offence under section 3 of this Bill. It has nothing to do with section 22. I refer Deputy Wyse to section 3; the case he postulates clearly comes within that and he commits an offence under that section. It has nothing to do with the section we are discussing at the moment.
I do not know in what role Deputy Wyse would have himself in relation to Deputy Haughey. If Deputy Haughey is a pusher and there is a consignment of drugs to be delivered across the city and he engages Deputy Wyse to carry them, surely if the garda asks: " How did this controlled drug get into your possession? Have you authority or a licence to carry it? " and if Deputy Wyse replies " Yes ", all he has to do is to produce the licence, say where he got the prescription, where it is now and he is all right. If he has no adequate answer, he says he got the drug from Deputy Haughey and then Deputy Haughey is confronted.
We talk about pushers being covered by section 15 but how do we know if they are pushers? A person could be new at the game, he could be a new arrival on the scene. Therefore, what we are doing here is giving a way out to new people coming into the trade to open the whole situation to a dangerous scene. If a person claims he is exempt, then the onus of proof is on him.
If we first depend on section 15 people who are picked up by the gardaí—they may be pushers—can come to court and say: "I have an exemption " full stop. Then it is up to the law to prove otherwise. That is a ludicrous situation. We are dealing with dangerous drugs, and we are trying to prevent them getting into wrong hands. We are trying to abolish traffic in drugs so I believe this is not an unreasonable section. It is reasonable when a person makes a claim that he should produce some evidence, whether it is documentary evidence or evidence to state where he got the drugs. There can then be follow-up proceedings. The prosecution can take the case further and say: " Yes, we are satisfied that these drugs or this person is exempted because of a particular statement he made ". The onus of proof should be on the person concerned when he makes a claim.
With regard to substituting section 15, I would not be satisfied that this person would be a pusher and I do not think anybody could be reasonably satisfied. I would be very unhappy if this section was not included.
We are talking about drugs here, a lethal commodity, I hate to be repeating myself but if the onus of proof in respect of the Road Traffic Act, 1968, and the Wireless Telegraphy Act, 1972, is on the individual who is accosted or to be charged, if it is reasonable in respect of offences under those acts there is an outstanding case for its inclusion in a Bill that deals with drugs.
Does the Minister realise the general significance of what he is suggesting. We have in certain Acts down through the years acquired, for reasons of expediency, this transfer onus and the argument is now used because it exists in (a), (b), (c) and (d) therefore it should exist in (f), (g), (h) and (j). That may be a valid argument so far as it goes but surely the Committee must realise that if this argument is to be regarded as valid simply because there are precedents for it there is no reason in logic why it should not be extended to every form of offence.
That is partly the reason why members of the Committee have been examining it with the greatest of care.
It only applies in the case I have quoted where there is a licence or an authorisation involved.
Is the difficulty not that the actual licence or authorisation is the property of the person who has it? He is the only person who can produce it. Nobody else has a right to. That is what I feel is the fault in Deputy Haughey's argument on it.
I am sorry if I am monotonously referring to this matter but the Committee are besotted with this notion of a document or a licence or a prescription. I am dealing with other sorts of situations which are encompassed under the provisions of section 22. If a nurse, who is going about her business in a hospital and has in the normal course of events drugs in her possession in the pursuance of her profession, goes off duty retaining inadvertently the drugs in her possession, is stopped by a garda, is accused of having those drugs for illicit purposes, the onus of proof in her case shifts to her and she has to prove that she had not got the drugs for some illegal purposes. She cannot produce a medical certificate, licence or anything.
But this has always been the case. A doctor, a nurse or a chemist's messenger boy are all in the same position.
We are making new laws here dealing with a new sort of situation.
This is already contained in the 1934 Act.
We are not going to persuade the Government Deputies on this. We have our views. Some of us have very strong views about the question of onus of proof and I suggest the Chair put the question. We would be prepared to let the section go if the Minister was prepared to restrict it to the pushing provisions. He is not prepared to do that and we want to indicate that we are against the onus of proof shifting generally under the Act.
All we are doing then is leaving the door wide open for drug pushers. It is a very dangerous situation and we ought think about this deeply.
The Minister earlier today quoted a general historical record of procedure or instances. The case of the simple production of a document to prove innocence is fair enough, but here we are going much further than that; we are asking a person to go into more detail to prove his right. Does this mean that in future years another Minister will quote this document as part of his historical record and we will move along for a further erosion?
Deputy Haughey did it in 1964 in the Firearms Act.
May I ask Deputy Haughey if he has an alternative to this section, which is of vital importance, in mind?
That in any proceeding for an offence under section 15 of this Bill this shall not be necessary. That is my alternative.
Section 15 states that any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it shall be guilty of an offence.
My proposal would limit the operation of shifting the onus of proof to pushing charges.
Why not oppose section 3 under which the simple possession of a drug is an offence?
I have already given my views before on section 3 when we were dealing with it.
Would it not be possible, Deputy Haughey, on Report Stage to put an amendment down to that effect rather than completely removing section 22 which, in effect, might have a worse effect than was intended?
The actual physical catching of a person selling a drug illegally is a most difficult thing and very seldom occurs. The charge of possession of the drug is, perhaps, the only weapon the Garda Drug Squad have. Nowadays they give the drug to a person and the person gives the money to a third party. A fourth party is carrying the drug around the corner. One person with the drug in his possession gives it to another person to deliver to the taker who then pays a third person and it is practically impossible to catch a person in the act of selling drugs illegally. In relation to section 15 it is practically impossible to catch anybody in that situation.
Under section 22 if a person is found in possession of a drug, a barbiturate, amphetamine or anything like that he can be asked why has he got it. If he says his doctor told him to take it he can be asked to produce the prescription. In the other case there is the classical example of the child who goes to the chemist shop to collect barbiturates for his mother. The Committee should not forget that earlier an amendment which suggested that there should be an age limit placed on a child who would have these drugs in his possession in such cases was not agreed to. In that case a child may have in his possession a month's supply of phenabarbitone tablets, to be taken one three times a day if his mother was an epileptic. He would have 100 phenabarbitone in his possession—the normal prescription size. He could be caught with the phenabarbitone in his possession or, perhaps, he goes to the pictures, has a drink or two afterwards or he might be at a party. He could be an 18-year-old or a youngster doing a message. There is no restriction here at all.
Then take the case of a doctor who tells the nurse, the receptionist or his wife to bring tablets to a woman up the road and he gives that person four or five sleeping tablets. She does not have a document of authorisation. I presume that the doctor would have a certain amount of modus operandi type authority whereby he could delegate to a lay person the carriage of a certain amount of drugs. For instance, if I asked Deputy O’Brien to bring tablets to Deputy Haughey, in that case if he is caught in transit and says that Dr. Byrne gave him those tablets to give to a person, it would be in order. There is a pre-arranged agreement. In that case that would be all right because he could refer the police back to me and I would write a note to the effect that I authorised Deputy O’Brien to carry them.
The Deputy told us that before.
There are no documents involved.
Are we going to have the same farcical situation today that we had on the Wildlife Bill yesterday? Is the Chair going to stand for this? This is bringing the Committee system into disrepute.
May I have some order? I am waiting to see Deputy O'Malley vote against the section he introduced in his own Private Members' Bill. It will be very interesting.
On a point of order, may I finish? I was not finished when Deputy O'Malley interrupted me.
Are you waffling, Deputy?
No, this is what can happen and these things should be discussed here.
Apart from any evidence it is the court who will ultimately decide the circumstances.
In relation to section 22 I have not heard an answer to the problem that where a licence or an authorisation is issued it is the property of the person who got the authorisation or the licencee; it is nobody else's property. That is the only person who can produce that document or authorisation, whatever it may be. It seems to be plain common sense that if a person is claiming the benefit of a licence or authorisation under the Bill they produce it if they are an honest person and say they have a licence. If they cannot produce it the court will facilitate production because the court has to clear up that matter once it is raised. It is not sufficient for a person to say he has a licence, authorisation, prescription, but not say what it was or its nature. We are only talking nonsense if we are not going to face up to that factual situation.
What seems also to have been lost sight of here is that under this Bill there will be a repeal of the Dangerous Drugs Act, 1934. I understood the Minister to refer to that Act as having a like provision in section 34. Are we going to say if we do away with the section—bar the one exception that is being conceded by Deputy Haughey—that the 1934 Act was wrong, that we should not have had it in operation, that we should not have it in operation now, that we should not have the same machinery for the like type of offences, the like circumstances and the like problems? Are we going to vote to do away with this section and, at the same tme, abolish the Dangerous Drugs Act, 1934, because this is a replacement of the Dangerous Drugs Act, 1934? That is the factual situation and the public should know that that is what we are purporting to do by opposing this section. I am not; I am wholeheartedly in favour of the section.
The other matter raised was in relation to section 4, the professional person who would have drugs in his possession. I should like to direct attention to subsection (2). That means that the Minister must make regulations to provide for these prohibited drugs in the possession of a qualified or professional person; he has no option. It just does not leave it in the air. Once this Bill is passed he has to make these regulations because it says that the Minister shall exercise his power to make regulations. It is not " may ". It is an imperative direction to the Minister who has to make these regulations. That covers that bit of difficulty that was raised.
I should now like to deal with the concession by Deputy Haughey in relation to " pushers ". He has conceded the point which I raised last time. He was not in favour of it until I brought it to his attention but he concedes it now when he says he is prepared to make the concession in relation to section 15. How is one to know whether a person is a pusher or not until the full evidence of the case is heard in court? That is getting the cart before the horse. He should have a little bit of sense and be relevant to the actual problem that will be before a court. It is ridiculous to say that one would only limit it to section 15. One cannot prove a person is a pusher until the evidence and conviction have arisen in Court.
How are they going to be charged with it?
They will be charged and then proved but one cannot use the so called exemption proposed by Deputy Haughey, or exception, in favour of a pusher until he is proved to be a pusher. In other words, a pusher up for the first offence——
Any proceedings under section 15?
——is not in until he is already within that category and on a first offence it means he will get off if there is not the necessary evidence. It makes things very difficult for a prosecution if not virtually impossible.
I am sorry to have to go back to these things but they have not been dealt with by the people who are opposing this section. I should like to point out that in reference to an offence under section 19 there is a further element that must be proved by the prosecution, that a person did not knowingly have it in their possession. That is an easy onus for an accused; it raises no difficulty for the accused. If he can prove in reasonable terms that he did not know, then he will not be accidentally charged or convicted on that matter.
This Bill was apparently proposed at another time by the people who are sitting on the opposite side of the table. I do not understand their attitude or change of mind now. Deputy Wyse at the last meeting said he regarded this section as central to the whole matter and I agreed with him. I do not know what his views are now; I think he has withdrawn from that and he is now only prepared to use the section in relation to pushers. I am finding it very hard to understand the arguments that are being put up.
Argumenta ad personam are not valid here.
I would like the public to know these points.
I must confess to a certain crisis of conscience about this problem. It is going to pose a lot of difficulties for people. This is not a question of party politics. We are all trying to do what we can to bring out a good Bill that could be effective without eroding the liberties and freedoms of individuals. There is a real fear in my mind that in our effort to do good and to eliminate the pusher we may create hardship and serious problems for the innocent person. This is what we should bear in mind all the time. While we want to do everything possible to eliminate drug abuse in this country, we must not create a situation where ordinary decent people will have life made impossible for them.
I do not think party politics is relevant to this at all. We should look at this in the light of what is best for the people. I see this as the real problem. I am not exaggerating when I say that one person in three in this country could have a prescription or tablets of some kind in his possession. He might be coming from a hospital, a chemist's shop or a doctor's surgery with tablets. He could be mistakenly interrogated and might have difficulty in producing the prescription. If the prescription is not produced on time he might find himself charged. For an innocent person finding himself in a Garda station and being interrogated is a shattering experience. The person may have nothing to do with drug abuse. It could be a case of mistaken identity. There was a case in Britain of mistaken identity and a man had to defend his innocence. This may happen here. It could be said that this is a remote chance but it can happen very easily. There are many people taking necessary drugs. These are the people who may find themselves before the Garda being intimidated, or have the Garda calling at their homes.
For a controlled drug the person will not have the prescription on him. We are legislating for people like that. We can make it very difficult for people to have to go to a chemist and get the prescription. If they have not the prescription they are brought to the Garda station. A lot can happen there. It could be a person home on holidays from Britain who has tablets in his possession but who cannot produce the prescription on time. I feel very concerned about this and I am faced with a terrible dilemma. Of course I wish to see legislation against the pushers but in our efforts to do that I would be afraid we might impose hardship and misery on people who would be legitimately in possession of drugs. Why should they have to appear before a court at all to prove their innocence? It takes time. Look at the inconvenience it causes.
I ask the Minister to say definitely if this Bill repeals every section of the Dangerous Drugs Act. Is it possible for us to have a look at this again for the Report Stage? Can we build in a safeguard for those innocent people? I am sure there is nobody around the table here who does not want to see the pusher eliminated from our society. Nobody wishes to give any solace or comfort to the pusher. I am sure we are all agreed on that. Could we seriously look at this and see if we could build in some extra safeguards for the innocent people? I think we would all be happy if the Minister could look at this again before Report Stage.
On a point of order, could we give notice that the Fine Gael Party wishes to replace Deputy Brendan Toal by Deputy John F. Conlon in accordance with Standing Orders.
That is permissible under Standing Order No. 70.
We have no objection.
Can we bring the debate to an end now?
We have spent enough time on this section. We have been two days on one section.
I feel this is a very important section as far as the Bill is concerned and I say that without any political motives whatever. I think we are unduly worried about it. There is no question of anybody being dragged into a Garda station, of suffering humiliation because of being in a Garda station and being intimidated. He arrives into court when he refuses to produce a licence.
I have just met two people who were dragged into a Garda station on a similar matter and detained for 9½ hours.
On what charge?
A simple charge. It is not a case of going to court.
As I understand it, there was a similar provision in section 34 of the 1934 Dangerous Drugs Act. Did that cause hardship? It did not. Why is there all this fuss now?
I will undertake to have a look at it again but I wish to qualify it by saying that I feel very strongly about this. I do not believe in persecuting people and I know there is embarrassment when young people are arraigned before the courts but we all know the seriousness of this problem. I do not know how it could merely be related to pushers. In the discussions we have had here, a pusher was sometimes regarded as somebody who has an undue quality of drugs on him but he could just have one dose on him. In that sort of spirit I will look at it but I am afraid I cannot give any guarantee.
Will the Minister discuss it with the Attorney General?
I have already but I will discuss it again with him. If the onus of proof is on somebody who is accosted for not having a licence to fish for salmon I cannot understand why the same provision should not be in respect of a dangerous drug.
A person keeps his licence to fish for salmon with him all the time but with regard to prescriptions for controlled drugs, he has no possession of them.
We debated this at great length the last day as well as today and I must put the question. The Minister has undertaken to consult with the Attorney General.
I propose to have another look at it. I have read all that was said at the last meeting. I do not regard them as convincing arguments but I will undertake to have another look at the matter as people feel so strongly about it.
This is an important piece of legislation. I do not think if a Member questions the Minister or the chairman on some aspect that another Member should say he is changing his mind on different sections. That was the expressed view of Deputy Esmonde. When I question something, I do not like anybody anticipating in advance what I am going to do.
I want to clarify what exactly the Minister has promised. He will look at the section again in view of the strong views expressed by certain members of the Committee and discuss it with the Attorney General with a view to seeing if he can meet the objections some Members have raised.
Question put and agreed to.