Deputies will note that we have already discussed the amendments to section 27 so that at this stage the amendments may only be formally moved.
SECTION 27.
We have not debated all of these.
Section 27 has now been considerably amended by the Minister himself. The Minister has changed the cannabis end of it anyway.
Yes, and it provides also for the channelling into one category of the three different categories we had before.
It also provides that in certain sections reference has to be made to section 28 procedure.
Yes.
What I propose to do at this stage is to have the amendments to section 27 formally moved, and once they are disposed of, we can then circulate the revised section 27 for discussion.
Could you not circulate it now?
I move amendment No. 78a:
In page 18, to delete lines 1 to 57, and in page 19 to delete lines 1 to 24, and substitute the following subsections for subsections (1), (2) and (3):
27. "(1) Subject to section 28 of this Act, every person guilty of an offence under section 3 of this Act shall be liable——
(a) where the relevant controlled drug is cannabis or cannabis resin and the court is satisfied that the person was in possession of such drug for his personal use:
(i) in the case of a first offence, to a fine on summary conviction not exceeding fifty pounds,
(ii) in the case of a second offence, to a fine on summary conviction not exceeding one hundred pounds,
(iii) in the case of a third or subsequent offence, to a fine on summary conviction not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment;
(b) in any other case—
(i) on summary conviction, to a fine not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(ii) on conviction on indictment, to a fine not exceeding fifteen hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding seven years, or to both the fine and the imprisonment.
(2) Every person guilty of an offence under section 6 or section 7 of this Act shall be liable—
(a) on summary conviction, to a fine not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding three thousand pounds or, at the discretion of the court, to imprisonment for a term not exceeding fourteen years, or to both the fine and the imprisonment.
(3) Subject to section 28 of this Act, every person guilty of an offence under section 15 of this Act shall be liable—
(a) on summary conviction to a fine not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding three thousand pounds or, at the discretion of the court, to imprisonment for a term not exceeding fourteen years, or to both the fine and the imprisonment."
I propose to take amendments Nos. 78a, 86a and 89a together. The difference between the new section and the original section 27 is two-fold: (1) the penalties for simple possession of cannabis for one's own personal use have been reduced and now consist of maximum fines of £50 and £100 for the first or second offence and a fine of £250 and/or 12 months for a third or subsequent offence. That is a change from the original proposal in the Bill. That is the proposal in amendment No. 78a. As far as 86a and 89a are concerned, apart from cannabis, the classification of drugs for penalty purposes has been abolished.
Is it not also the position that in regard to cannabis resort must be had to the section 28 procedure, that is getting a report on a person ——
That comes later on.
We are only dealing with penalties here.
There is also section 28 procedure.
As I said, there is now no differentiation between one drug and another for the purpose of penalties, with the exception of cannabis.
Drugs are now under one Schedule and the same penalties apply to them all.
Yes, the category 1 drugs in the original Bill.
The important point is that section 3 offences are subject to section 28?
Yes.
I do not think that is specified. I know we discussed it along those lines.
In the new draft it says:
Subject to section 28 of this Act, every person guilty of an offence under section 3 . . .
It is subject to section 28, which is the report procedure section.
Do I take it that if a person is found with a quantity of cannabis on the first offence he will be subject to section 28, that he will go through that process of social report and so on?
It is optional; it is at the discretion of the district justice.
But he may do so on the first offence?
He may do it on the first and second but he is required to do it on the third.
We cannot at this stage discuss this. We can discuss this matter when we come to considering the section as a whole. The amendment has already been discussed at great length.
I disagree; we have not discussed all the amendments. There are many amendments.
We have discussed them and the record is before us.
The Chairman may produce the record if he wishes but we certainly have not discussed all the amendments.
When we have these amendments disposed of we will then be dealing with section 27, as amended. The Deputy can then raise his point on the amended section. I am putting the amendment now. The Deputy, when the amendment has been dealt with, will be perfectly free to elaborate on any issue on the section.
I am satisfied once the Chairman has clarified that we have not discussed all the amendments tabled relating to section 27.
If amendment No. 78a, in the name of the Minister, is accepted then amendments Nos. 79 to 83, inclusive, automatically fall and cannot be moved.
We must take amendment No. 78a first.
That amendment inserts a new section 27. I am in favour of that amendment.
Amendment put and agreed to.
I must move on then to amendment No. 84, in the name of Deputy Byrne.
I move amendment No. 84.
In page 19, subsection (4), to delete lines 27 to 30.
I tabled these amendments because the Committee have been very lenient in relation to the possession of cannabis under section 3 and inadvisably so. They have not attempted to define the quantity, strength or composition of the cannabis. Indeed, it is sad to see that the word " cannabis " is solely being used in the Minister's amendment while marijuana might be a far more practical and weaker drug for one to have in one's possession instead of the cannabis resin. I have tabled these amendments to counteract in some way the Committee's lenient and liberal move into this field, where it is famous for its lack of knowledge and contradictory medical evidence and the research that has been produced.
If the Committee are to accept this I feel they should also consider making other offences for the possession of all other drugs indictable offences. My amendments seek to do away with the summary conviction and make all offences indictable. I have also in mind a general trend towards a special type of court, or specialist court which would have knowledge of drug offences and rehabilitation. We could then possibly move away from the traditional British type of legislation that has not had any real impact that I know of on the British drug scene and, perhaps, be a little more radical and brave in our approach to the problem here.
I should like to explain to the Committee that my amendment proposes that the fines would be up to £3,000 or 14 years in prison but under the amended section 27 the fine is only up to £250 or 12 months, or both. In this day and age I do not think that is a deterrent of any kind, particularly where we have the bizarre overlapping situation of the taker and the pusher and the limited resources available to attempt to see that this legislation is effective. Many people are worried about the spread of the drug problem throughout the community and the person they feel the greatest amount of animosity toward is the drug pusher, the person who spreads the drugs around. I do not want to see legislation going through the House when the maximum fine for a person who might forge a prescription for thousands of pounds worth of barbiturate drugs is £100, under section 18. If this was an indictable offence it would be £750, three years, or both. I am not saying that those penalties are as severe as I would like, but I am given to understand that a 14 year penalty is equivalent to the effective life imprisonment. According to the advice I got from members of our party, if one is given life one would not have to serve more than 14 years. I have explained my reasons for putting down this amendment, although I could go into further detail and compare the figures here with the legislation in other countries, particularly Western Europe.
I would also like to mention the unease felt by members of the Garda Síochána to whom I have spoken about our attitude to cannabis and marijuana. They reckon Ireland will be one of the most successful countries for takers of these drugs. In the opinion of some of the Garda, instead of flocking to other European capitals, these drug takers and pushers may come here and increase our drug-taking population. It is na�ve of us to think that this population has not increased and that the number of people from abroad living here in substandard and hippy communes has not increased over the last decade.
To my mind, section 3 is practically condoning the free smoking of cannabis. This is far too premature a step for this committee to take, in the absence of any concrete medical evidence to support the view that cannabis is harmless. We should not move until such evidence is available. Legislation could always be amended later if concrete evidence came before us. It is no harm to mention at this stage that most medical authorities are agreed that cannabis, if it were to be quantitatively analysed and compared with a drug like thalidomide, would not get past the first step of research tests. Here we are practically condoning the use of marijuana purely and simply because we want to over-protect the teenager who is caught with a cigarette in his pocket. By introducing these liberal penalties we are making it easier for such a case to happen. I will be tabling an amendment to this effect on Report Stage. My amendment here is to do away with summary convictions and have all penalties indictable offences for drugs other than cannabis. Having given way on the one hand to cannabis users, we must tighten up——
Did the Deputy say, " other than cannabis "?
Yes.
I have given Deputy Byrne latitude on this——
On a point of order. I can speak for as long as I like on my amendment. The Chairman does not have to give me any latitude once I keep to the point.
If I may interrupt the Deputy, when we were dealing with amendment No. 12 I asked the committee if they wished to take a number of amendments together, including the amendment the Deputy is talking to. At that stage, the committee unanimously agreed to take the amendments together and they debated them at length. I would point out that the question and the amendments are now being put formally. Perhaps the Deputy would reserve his comments until we have completed section 27. He can repeat his comments later and put down amendments on Report Stage. Therefore, I have to ask Deputy Byrne if he wants to withdraw the amendment.
Firstly, I want to tell the Chairman that we have not discussed this amendment.
With due respect to Deputy Byrne, I must rule that I am under no——
Are you saying, Chairman, that we have discussed all the amendments to section 27?
We have discussed all the amendments to section 27. We took a number of amendments together. I have the original grouping in front of me.
I will withdraw my amendment, but I will put it down on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 85:
In page 19, subsection (5), to delete lines 37 to 40.
Amendment, by leave, withdrawn.
I move amendment No. 86:
In page 19, subsection (6), to delete lines 47 to 50.
Amendment, by leave, withdrawn.
I move amendment No. 86a:
In page 19 to delete lines 55 to 58, and in page 20 to delete lines 1 to 20, and substitute the following subsection for subsection (7):
" (7) Every person guilty of an offence under section 19 of this Act shall be liable——
(a) on summary conviction, to a fine not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding three thousand pounds or, at the discretion of the court to imprisonment for a term not exceeding fourteen years, or to both the fine and the imprisonment."
Amendment agreed to.
Amendments Nos. 87 to 89, inclusive, not moved.
I move amendment No. 89a:
In page 20 to delete lines 38 to 60, and in page 21 to delete lines 1 to 18, and substitute the following subsection for subsection (10):
"(10) Every person guilty of an offence under section 21 (2) of this Act shall be liable——
(a) in case the regulation in relation to which the offence was committed is a regulation made pursuant to section 5 (1) (a) of this Act, other than a regulation regulating the transportation of controlled drugs,
(i) on summary conviction, to a fine not exceeding two hundred and fifty pounds or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or
(ii) on conviction on indictment, to a fine not exceeding three thousand pounds or, at the discretion of the court, to imprisonment for a term not exceeding fourteen years, or to both the fine and the imprisonment; and
(b) in case the regulation in relation to which the offence was committed is a regulation made other than under the said section 5 (1) (a) or is a regulation regulating the transportation of controlled drugs—
(i) on summary conviction, to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both the fine and the imprisonment, or
(ii) on conviction on indictment, to a fine not exceeding five hundred pounds or, at the discretion of the court, to imprisonment for a term not exceeding two years, or to both the fine and the imprisonment."
Amendment agreed to.
Question proposed: " That section 27, as amended, stand part of the Bill."
I recognise that the Minister has gone some considerable distance to meet us in a number of areas. We now have a new schedule of penalties which should replace the original schedule as laid down in the Bill. The two big changes are that there are three separate categories of offences for cannabis, first offence, second offence and third offence. The next big change is that all other drugs are the same. We will not have different categories of dangerous drugs from now on.
My general reaction is that the penalties imposed by this new section 27 are still excessive. I want to reserve the right, like Deputy Byrne but for a different reason, to look again at this new schedule of offences on Report Stage. We are all entitled to do that because section 27 as we now have it before us is a considerably different section 27 from the original. It would be a good idea if we all looked at it carefully again before coming to a decision. I would enter the caveat that even the suggestions of the Minister could be very excessive. I accept they are maximum penalties and if we had, as we should like to have, a totally wise, mature and judicial District Court bench we could accept the penalties on their face value, say they are maximum penalties and leave it to the sense of the district justice to impose the maximum penalties only when circumstances warranted it.
I must confess to reservations about the general maturity and wisdom and judiciousness of the District Court bench because in certain circumstances members of the District Court bench seem to get rather savage. There is in the Limerick district a man who thinks that driving a car above a particular limit is more serious than murder. Therefore it is no great protection for us to be able to say that these penalties are maximum penalties and that we should leave it to the sense of the district justice, that there is nothing in particular we should do about that situation. It worries me a bit that even for a third offence in the case of cannabis or a first offence in the case of other drugs a person can go to jail for 12 months at the discretion of the district justice. However, I will not oppose the section, I will go along with it and we can have a good long look at it before Report Stage.
It is extremely difficult, from many points of view, to suggest what a penalty would be and to try to decide what the terms of imprisonment would be. These are maximum penalties and the interpretation of " maximum " in other legislation is pretty wide as well. The district justice can fine from ½p to £3,000 in accordance with the offence. It is not for me to comment on district justices but to say that we know there are district justices who are reputed to be hard or soft on certain things. We have to accept them for what they are. If there is lack of confidence in district justices or in a particular district justice there is always an appeal to a higher court. There might also be a Circuit Court judge who would be hard on one thing. I am sure if all of us were to give an opinion on what the penalties should be we would hardly come to a consensus. We could try an average. We try to be tolerant in respect of cannabis and I suggest this in the proposed amendment. There are other offences which are considered to be much more serious than cannabis. I do not think it would be suggested that there should be lower fines in respect of pushers or some wayward members of the medical profession who would be prescribing drugs in large amounts. I could not say whether £3,000 or 14 years for a pusher is excessive. The figure of 14 years would have to be considered in conjunction with the offender's age. These are the penalties that were suggested and I do not think they are excessive particularly in view of the fact that they are maximum and that they can be appealed to a higher court.
It is a difficult region. All I am concerned with is that we would fix a level of maximum penalties which would prevent an erratic district justice from behaving excessively. If we could ensure that, all would be well. We must try to strike a balance.
I was talking about permitting the occupation of premises for certain purposes. It is a serious thing for the occupier of premises to permit the use of the premises for the partaking of drugs.
If the Deputy will support my amendment on Report.
A case involving a fine of £3,000 or imprisonment of 14 years would be indictable always.
This is an example of the difficulties we will have. I would prefer that we would have agreement on Committee. The other place is a different arena.
Could we not make them all indictable?
You could not. There might be some regulations for the keeping of certain records and if there was transgression in that respect, according to the amendment the person would have to go to the Circuit Court. There is a qualification in what Deputy Byrne has said to the effect that anybody caught smoking a reefer would be sent to the Circuit Court. You would have an example of somebody who would not have the organisation for the transport of drugs but he would have to go to the Circuit Court. In general I agree with Deputy Wyse in regard to the occupiers of premises. Such offences should be indictable, charges in respect of possession for illicit supply, in other words, the pusher.
There is no problem about this because the Garda can request the Director of Public Prosecutions to send it to the Circuit Court.
Why have it in the District Court? Why can we not in our legislation agree——
Because we cannot presume a man is such a blackguard until he at least goes through the first procedure.
Even in section 19, which Deputy Wyse is worried about, you can have a case where a person has an apartment and somebody just smokes a cigarette in that apartment, and that person is liable to the full rigour of section 19.
Only if he permits——
Somebody is permitted to smoke a reefer in the apartment. Section 19 covers a wide range of people. It covers a night club in which there is a pusher, deliberately pushing hard drugs. We inflict the maximum possible penalty on him. I am certain that in that case the Garda and the Director of Public Prosecutions would insist on the indictment, but under section 19 you can also have a person who unconsciously or innocently has somebody in the apartment who is smoking cannabis and that person is liable under the section, and you do not want that; it is something that can be dealt with by the district justice. The only problem I have in that regard is that a silly district justice with a fixation about this matter could give that person 12 months.
No. We had this section clarified to the effect that it covered managers and landlords, not the actual occupier.
Read section 19: " A person who is the occupier or is in control or is concerned in the management . . .".
This was clarified when we discussed the section, that it was not the person who was occuping the premises. It dealt only with people at managerial level.
Deputies
No.
It could be your own clinic. A person pops in smoking a reefer.
And the Deputy goes to jail.
When we discussed section 19 we were told it dealt only with management of premises.
Section 19 says: "A person who is the occupier or is in control or is concerned in the management . . .".
We got an undertaking from the Minister that it referred only to people at managerial level.
You could not have the Minister in court every time trying to clarify the situation for the district justice.
It is clarified on the record. Is it not going to be checked?
They do not do that. It is not our interpretation, it is the judge's interpretation of the Bill.
Act.
Yes, Act.
Any Act.
But it is not what we think it should be.
Having observed and been in the cockpit, my impression has been over the years that the general tendency is for the court to give lighter sentences than they used. It is very much that way and has been for some time.
I would not agree with that.
Members of the public and those dealing with the administration of justice in the courts have expressed concern at the many light sentences. There is ample room in this for a justice to exercise discretion within the different types——
That is a mis-statement. There was a member of the Circuit Court recently appointed who has set an all-time record for severity of penalties.
There is a man down there not too far away from the Deputy, in County Kilkenny.
This section covers all offences under the Bill, and there has been a lengthy discussion on it.
We can look at it again between now and Report Stage.
Question put and agreed to.