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Special Committee Misuse of Drugs Bill, 1973 debate -
Tuesday, 25 May 1976

SECTION 23.

Debate resumed on amendment No. 68:
In page 16, between lines 12 and 13, to insert the following subsection:—
"(2) A member of the Garda Síochána shall not exercise a power conferred on him by this section unless he has been furnished with an authorisation in writing by an officer of the Garda Síochána (not below the rank of Inspector) to exercise such power and if when claiming to exercise such power he is required to produce the said authorisation the power shall not be exercisable by him except on production of the authorisation."

You may recall that we were discussing amendment No. 68 moved by Deputy Haughey on behalf of Deputy O'Connell. We had embarked on a discussion on that amendment. It relates to section 23. If it is agreed, we shall continue our discussion on it.

If I may say so, I would be very concerned if this section were changed in any radical way. I gave some reasons for this at the last meeting. So far there has been give and take by Deputy Haughey and his colleagues and there has been a reasonable approach to the whole Bill. I would hope that we would come to an agreement on the various sections including this one. I regard this amendment as one of vital importance if we are to combat the evil of drug abuse in respect of controlled drugs.

This amendment seeks to ensure that nobody below the rank of inspector will be authorised to authorise a member of the Garda Síochána to search a person, vessel or aircraft. What was in Deputy O'Connell's and Deputy Haughey's mind was a fear that the powers of the gardaí would be abused by them unless they had this special authorisation from a Garda Inspector. I believe that the section as drafted provides adequate safeguards for this fear.

The gardaí would, as they usually do, approach a matter such as searching on reasonable grounds of suspicion. There is no evidence that the Garda have abused this power to search. There may be some isolated cases. A member of the Garda Síochána must be able to substantiate the reasonable grounds he has for suspicion when he appears in court.

What we are concerned with is the power to search for illegally held, controlled drugs. Such powers are necessary in view of the fact that drugs can be moved quickly and easily and they are commodities that can be in very small quantities. Again if they had not these powers to stop and search before they could get to an inspector or a superintendent or a chief superintendent, the person they suspected might have flown and the controlled drugs which he had illegally in his possession certainly would have vanished as well. In any case, as far as the availability of an inspector is concerned, it would pose a problem for a guard who had to drop everything so to speak and seek out an inspector, and this would be particularly so in the rural areas, in town areas or the seaside resorts, no matter where it might be. We should have sufficient trust in our garda that they would not abuse any powers conferred upon them. As I have mentioned before, they have these powers to search embodied in other Acts of the Oireachtas that have been passed in recent years. All members of the Garda are authorised, by virtue of the fact that they are gardaí, to carry out investigation into suspected breaches of the law in general and they do not need any special authority to do this. I think if they had to go through this procedure they would be very much hampered in their attempts to control drug abuse.

Since our last meeting I have given this section a great deal of thought. I appreciate the suggestion made by the Minister that we should try and retain our consensus approach to this legislation as long as we possibly can. I have come to some conclusion about the section now, not quite perhaps as total as my original conclusion of the section. I propose to vote against the section just to indicate my disapproval of certain aspects of the section, but the Minister has persuaded me of the need to give these powers to the Garda in the case of vessels and aircraft. Having gone that far I think I will have to go reluctantly a step further and include vehicles, private motor cars, vans, lorries and so on. I still have a very strong objection to the Garda, pursuant to this section, having the authority to search people and detain them for the purpose of making a search.

I come now to the last objection I have to the section. It is important to keep in mind what the Minister has just pointed out to us, namely, that the Garda operating under this section would only be dealing with people who they had reasonable grounds for believing had controlled drugs illegally in their possession. They must believe not alone that they have a controlled drug in their possession but also that it is illegally in their possession. I must say I had not adverted to that particular consideration when I was looking at the Bill in the first instance. The way I would propose to proceed personally is that since I have not a total objection to the section, and I will put down an amendment on Report Stage to delete paragraph (a) of subsection (1). I can see the need for the rest of the section, particularly as the Minister himself is now deleting the forged prescription provisions and confining the operation of the section to drugs proper.

I think I promised that the last day. I would like to say one or two things on this section. I do not know whether I am correct in this or not, but I think some of the objections were in relation to the whole section as it stood, which appeared to me to allow searches to be made on doctors' premises and I said I would delete that on Report Stage.

Premises do not come under this section. They come into the next one.

I am sorry. Confined to drugs, and I propose to delete the reference to forged prescriptions and duly issued prescriptions. But I think in fairness I should say to Deputy Haughey that I would, again on this section, be prepared to introduce an amendment which would endeavour to ensure that the Garda would not act in an unreasonable manner and, on the other hand, to give them sufficient powers in order to ensure that the Bill would work. I propose to introduce an amendment on Report Stage in order to ensure that what might be considered innocent people would not be subjected to this sort of a search when occupying the premises.

That is totally acceptable to me. I am grateful to the Minister for that suggestion and we can look at the amendment on Report Stage. I would ask the Minister to get the Report Stage amendment out as quickly as possible so that we will have time to look at it in advance of the Bill coming before the Dáil on Report Stage.

I wonder would it help Deputy Haughey if I gave him an idea of the type of amendment I propose. It reads: In section 23, page 15, lines 47 to 52, and page 16, lines 1 to 12, to substitute the following subsection for subsection (1)—

A member of the Garda Síochána who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug may without warrant

(a) search the person and, if he considers it necessary, detain the person for the purpose of making the search,

(b) search any vehicle, vessel or aircraft in which it is suspected that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of the vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from using it or in case such vehicle, vessel or aircraft is already stationary, to refrain from using it, and

(c) seize and detain anything found in the course of a search under this section which appears to him to be something which might be required as evidence in proceedings for an offence under this Act. Any person who fails to comply with the requirement made by a member of the Garda Síochána under subparagraph (b) of subsection (1) shall be guilty of an offence.

I take it that only if a person fails to comply with the provisions of paragraph (b) he will be guilty of an offence? Read out the last bit again.

We will have to look at it. Any person who fails to comply with a requirement made by a member of the Garda Síochána under subparagraph (b) of subsection (1) shall be guilty of an offence.

That is searching vehicles.

But not persons.

Yes, the personal situation is still there.

This addendum the Minister has just read out, coming in after line 15, does that refer to (b) only? In other words, if a person does not allow a member of the Garda Síochána to carry out a search of a vehicle, vessel or aircraft he is guilty of an offence. As against that, if he refuses to submit to a personal search, he is not guilty of an offence. Is that correct?

It seems to me to be the gist of the Minister's amendment.

The power to search a vehicle, vessel or aircraft would still be there.

But if a person does not agree to that he can be charged with an offence. Nevertheless, if he does not agree to a personal search, what is the position in that case?

It seems subsection (a) stands.

The Minister's amendment means that instead of "grounds" he substitutes "cause" and a person commits an offence if he refuses to comply with a garda searching a vehicle, vessel or aircraft. That is the only change that amendment will make.

It seems to be an addendum without any deletion. It is very difficult to assimilate what is in it without actually seeing it in print.

I see the point. A person is caught under section 21 (4):

Any person who by act or omission impedes or obstructs a member of the Garda Síochána or a person duly authorised under this Act in the lawful exercise of a power conferred by this Act shall be guilty of an offence and if, in the case of a continuing offence, the. . . .

Why does the Minister need to bring in the bit about paragraph (b) in the light of section 21 (4)?

I suppose because we wanted an improvement in section 21 (4).

I thought section 21 might refer to a third party: "A person who attempts to commit an offence under this Act, or who aids, abets, counsels or procures the commission of an offence . . . . "

So far as the personal circumstances are concerned it may be covered by section 21 (4):

Any person who by act or omission impedes or obstructs a member of the Garda Síochána or a person duly authorised under this Act in the lawful exercise of a power conferred by this Act shall be guilty of an offence and if, in the case of a continuing offence, the impediment or obstruction is continued after conviction, he shall be guilty of a further offence.

What is bothering Deputy Murphy and myself here is why the Minister is introducing a Report Stage amendment. Why is he bringing in words which specifically state that it is an offence to resist a garda operating his power under paragraph (b)? Is not all that covered under section 21?

A person who refuses to stop a car does not seem to commit an offence.

Does subsection (b) visualise a garda commanding a pilot to stop an aircraft in mid air?

It does, of course, or to refrain from moving it.

Trick of the loop.

I think we ought to leave our remarks on this addendum for Report Stage.

I think we have aircraft in mid air covered in section 29 (6). It reads:

In any proceedings for an offence under section 23 of this Act it shall be a defence for a defendant to show that the requirements to which the proceedings relate are not reasonable.

Let me get back to section 23 (a) where a member of the Garda Síochána may, without warrant, search the person and, if he considers it necessary, detain the person for the purpose of making the search. Would the Minister consider building into this section any time limit during which a person could be detained? Would the Minister not consider that, if it were possible to introduce some form of time limit during which a person could be held for the purpose of making a search, would it not also be possible for a warrant to be produced within that time?

It is all according to whether we are thinking in terms of ten minutes or 20 minutes, half an hour or an hour.

What would the Minister regard as being a reasonable length of time to deprive a person under suspicion of his liberty?

That would depend on a number of factors. You may have a very diligent garda who might want to examine, and rightly so, every part of the vehicles to see if drugs are being carried.

This refers to the persons. Surely the person should be without his liberty for as short a time as possible.

I do not know whether that could be covered by prescribing a period of time.

If the garda, for example, detained a woman he might have to wait for a ban-gharda to come to search her.

There are no ban-ghardaí in many areas.

It cannot be very specific. If it was a woman who was accosted the garda would have to send for a ban-gharda. We have no ban-gharda down the country.

I understand that could cause difficulty. The Garda Síochána are becoming a rarity in many parts.

I suggest that, in order to get on with the business, we would voice vote against the section to indicate our dislike for it. Deputy Murphy and myself, when we see the Minister's Report Stage amendment, if we are still not happy with it we will put down our own amendment.

Then will the Deputy withdraw amendment No. 68?

Amendment, by leave, withdrawn.
Question proposed: " That section 23 stand part of the Bill."

We just indicate that considerable improvements can be made in the section on Report Stage and we will just voice vote against it now.

I would again ask the Minister to have a look at paragraph (a). I am worried frankly not merely as a legislator but as a parent. For the sake of argument, if my 15 year old son was subjected to a sudden search in respect of drugs it would be a rather traumatic experience for him. Many people would have that fear and so I would like the Minister to have another look at paragraph (a). That would be our wish certainly because there is concern about the section—not because we suspect the members of the Garda Síochána of acting with excessive harshness but because the opportunity is so explicit to a member of the Garda Síochána.

Also, the Minister might consider whether, in the case of a minor being detained, it might be appropriate to provide his parent or guardian be notified to that effect.

Young people can be searched but not questioned.

I do not think that quite covers the point. This is the case of a person being detained again under suspicion. Would it not be appropriate to have a proviso laid down whereby the guardian of that person would be notified to the effect that he was being detained for the purpose of making a search?

I do not know, but I assume the phraseology here is the same phraseology that would be used in a personal search for any sort of illegal goods—stolen goods for example. As I say, a search "yes" but questioning "no" unless the minor is accompanied by a parent or guardian.

I am still not happy about that. Maybe the Minister could come back again on it.

I do not know what I could promise on it.

If the Minister would give it some consideration or take some advice and clarify the position in regard to the law generally on this, that might set my mind at ease.

There might be in the general law some particular provisions covering the searching of minors.

Adults who are detained for searching in relation to drugs——

Surely the spouse of an adult, perhaps the female especially, ought to be notified that her spouse is being detained. If there is not an unreasonable amount of time involved, fair enough; but, if there is going to be a time lag in this, consideration ought to be shown. There is an interesting Bill before the Dáil at the moment, the Family Home Protection Bill.

There is the possibility that the spouse would not want to notify the other partner in the marriage that he is being detained on a drugs charge. We do not tell our wives everything.

Do they tell us everything?

We have spent a great deal of time on this section.

Does the Minister intend to introduce a section in the Bill—I think this might be appropriate here—whereby urine or blood samples could be obtained from a person who has been arrested? Would there be a provision for this to show that if a person is caught driving a car under the influence of one of these controlled drugs he is regarded as being in illegal possession of the drug because of having taken it? Is there any way in which that person can be prosecuted? He might have smoked marijuana cigarettes at a party and, while not actually having drugs in his possession, he may be under the influence, as it were, of a controlled drug.

What we are concerned about now is the possession of drugs rather than the use of drugs.

I was just wondering if at some stage the Minister might be bringing in a section to that effect where, say, a marijuana smoker driving a car has a crash——

If it is a controlled drug which is illegally in his possession he is guilty of an offence. The emphasis is on possession rather than the effects of the drug.

Question put and declared carried.
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