Amendments Nos. 11 and 12 are alternatives and may be discussed together.
Customs and Excise (Miscellaneous Provisions) (No. 2) Bill, 1987: Report Stage (Resumed) and Final Stage.
An Leas-Chathaoirleach
I move amendment No. 11:
In page 4, between lines 24 and 25, to insert a new paragraph as follows:
"(b) Where a person has been brought to a Customs Office an officer of Customs and Excise may at his discretion require the said person either to be subject to X-ray examination or to permit a designated medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated medical practitioner a specimen of the person's urine: provided that such person may opt for either of the said tests to be carried out at any time during his detention and the results of such test or tests, as the case may be, shall be taken as conclusive proof for the purposes of establishing that there are no longer reasonable grounds for detention under subsection (3).".
I am leaving it to the discretion of the Customs and Excise officer whether to use an X-ray in the performance of his duty. This is not unreasonable in view of the fact that the Minister said that if all the other examinations take place, and if they do not produce the desired effect, particularly as it affects those who conceal drugs by swallowing, an X-ray might be desirable. If there were grounds for suspicion and the Customs and Excise officer so desired it, it is appropriate that he would be able to subject a person to an X-ray. I want to strengthen the power of the officers and make sure the facilities are written into the Bill
I support the amendment.
I wish to speak on amendment No. 12 which excludes the X-ray examination provision. I would be happier if such a provision was not part of the tests which could be visited on a suspect by the Customs and Excise people as a consequence of their apprehension. There are cases where the use of an X-ray could be injurious and inadvisable, for example, a pregnant woman who was suspected of smuggling drugs by ingestion or insertion should not be subject to X-ray examination. The whole matter of X-ray examination is fraught with possible difficulty and danger. For that reason I would not support any inclusion of such a measure in the legislation. It is perfectly reasonable, however, to include all the other provisions. They would be helpful in the determination of guilt and, as such it is necessary to include them in the legislation. Advances have been made, and will continue to be made, in the area of ascertaining whether substances have been taken by people. It is important that legislation should reflect the possibilities of such detection. Apart from the X-ray examination facility in that amendment, I am proposing amendment No. 12 as being the more desirable of the two alternatives.
What I have to say will not surprise anybody because I have said it ad nauseam. Since our last discussion, I had discussions with customs officers and with people from the investigation branch. There is no doubt but that they need the extra powers. We have done a good morning's work in covering one of those areas. The Minister has to be congratulated on that. It is something that will be well received in all places. That covers people who stuff contraband into body orifices.
We are now dealing with those people who smuggle drugs by swallowing into their bodies. We carried out a check this morning on the actual cost of a pound of raw heroin. It would be quite simple for somebody to take a half pound of heroin inside their body. The amount of money involved is enormous and makes the risk very worth while. There is a huge temptation for people to take heroin particularly into the country in this way. I have spoken to people from the Drug Squad who are still of the view that most of the heroin which comes into Ireland comes in in this form. When I spoke here last I think I gave the impression that most of the drugs brought into this country come in the body. I said that at the end of the discussion and I did not get a chance to put the record right. I was talking about the very hard drugs, and almost exclusively heroin.
A person can easily take a half pound of heroin inside their body. We are talking about £70,000 or £80,000 which is the street value of that amount of drug. We are trying to close certain avenues. We have covered the area of meeters and greeters. The Minister has also given the customs officers the necessary powers and those people who smuggle drugs into this country by swallowing them are covered in this Bill. There are three proposals put forward here — X-ray, blood test, the urine test as proposed by Senator Ferris, and the blood and urine test as proposed by Senator Bulbulia. I do not know the value of a blood test. I am not competent to speak on that and I am not sure that it can be helpful here but there could be developments which I am not aware of. I seek the Minister's response to that. I do know that X-ray is important and can show up any irregular substance carried in the body. I also recognise that X-ray can be dangerous to some people. I have a slight problem with the idea of an X-ray, because it could actually lead to difficulties later if people claimed they did not have a choice. I would go along with the idea that X-ray as an option might still be considered.
I am speaking to amendment No. 12 when I say specifically that the urine test has been proven in many different countries as something that will show up and identify the smallest trace elements within the body. It is the single most effective technological development in the area of detection. Since our last discussion I have made inquiries as to what is happening in other countries. I am aware that the majority of countries only have this as an option but I have also spoken to customs authorities in other countries and they said quite clearly that they would feel that, assuming there are reasonable grounds for suspicion — we are talking here about more lives per year than the number of people who died in Enniskillen last Sunday — it is a problem on an even bigger scale than this.
To the Minister's credit, he has brought this Bill this far. I would ask him to see what he can do with this section. I would ask him particularly to address himself to the question of the urine test. I know his Department have invested in the machines for urine testing even though they are not being used yet and I think everybody is in agreement about their value. There is no doubt about that, so we are not arguing about it. What we are saying is that rather than have somebody in detention for days or hours on end, this would be a way that would sort out the difficulties straight away. Either we bring in legislation to make it compulsory for a person to give a urine sample or else have it written into legislation that the refusal to do so would be used as evidence or would be part of evidence and would be seen almost as an admission of guilt. I think the last one is too cumbersome. I would certainly go for what is here, that they should be required to give a urine test.
By taking this step here this morning we could literally closedown one of the bigger avenues of heroin importation to this city. I am not saying it would stop it, nothing will ever stop it. No customs legislation will ever stop the drugs problem but this is one area of it. The area of supply has to be cut down and we are talking about the supply here. I am certain from discussions with customs officers, with the investigations branch and also with the Drugs Squad of the Garda Síochána that it would be of great benefit and great use to them if the Minister could work his way towards taking these amendments on board.
I must confess I share the concern of Senator Bulbulia and other Senators on the question of X-rays because for obvious reasons it would be preferable if they were used in medical spheres rather than what is envisaged in this Bill. Going back to the other aspects, I would pose a question to the Minister. I am of the opinion that if the customs officers felt that X-ray equipment was necessary whether for urine testing or blood samples or in any other area it would have been on board long before now. The point I am making is that these areas can be problem areas for customs officers. Having made that point, I would like to say that if they think it is necessary then they should have it if that is what they want. I invite comments from the Minister in that area.
Is soiléir go bhfuil an-spéis as gach éinne anseo san mBille seo agus go háirithe san leasú seo agus gach aon alt den Bhille freisin.
I have considerable difficulty with amendment No. 11 which seeks to assign discretionary powers to customs officers to X-ray individuals. I have to admit that and I want to try and balance all the viewpoints, pro X-ray and against X-ray. Those of us who are concerned about the dangers posed by Sellafield are aware that such radiation is potentially very injurious to health and ought not to be administered except for purposes of medical diagnosis. As I indicated to the House on Committee Stage the customs service has equipment capable of detecting the presence of drugs in urine, that is the EMIT equipment. We are awaiting its delivery and as soon as it comes we will be putting it into use.
I would not wish to introduce precipitative legislation hinging on the reliability of this equipment before it can be thoroughly evaluated. It will be used on a voluntary basis and if it is used in the field, so to speak, and if evaluation tests warrant it, I will give consideration to a measure along the lines suggested by this amendment. I must, however, say that blood and urine tests are problematical in that they can detect the present of morphine or cocaine-based medications legitimately present in a traveller's system. Recent information from the United Kingdom indicates a degree of disappointment with the overall efficiency of the urine test. Furthermore, such tests obviously cannot detect drugs concealed by a traveller in his clothing or luggage. For this reason alone a negative test, as the amendment proposes, cannot be accepted as proof positive of innocence either.
I hope I have covered all the points. We feel we have gone as far as we can go. We are giving the voluntary opportunity for the EMIT test. We are awaiting the delivery of the equipment and it will be used voluntarily on arrival. We believe that at this stage we could not, in any circumstances, use X-ray equipment. It would be too injurious to health and it would be too risky from every point of view. Consequently, I sincerely regret I am unable to accept these amendments.
I was not unmindful when I put down the wording in amendment No. 11 of the consequences of X-ray and some people's views on it. I think the medical evidence would substantiate the view that has been expressed by Senator Bulbulia. I put down in the amendment the word "may" and I was allowing it at the discretion of the customs officer. Naturally if a pregnant person who swallowed four of five ounces or half a pound of cocaine was worried about the pregnancy and she communicated this worry to the customs and excise officer, he could use his discretion as to whether an X-ray was the appropriate diagnostic instrument to use. In other sections there are the rights of examination and internal body searches and so on but also under this amendment a person could opt for or against an X-ray, could opt for or against a blood test, because they might be haemophiliac, or they could opt for or against the urine test. It left a certain amount of discretion to the person being examined or detained and to the customs and excise officer. I accept that the Minister in some voluntary kind of way is going to bring in this.
There is no doubt in any of our minds, and it has been confirmed by Senator O'Toole in discussions with Customs and Excise officers, that they need additional powers in this area of testing if their work is going to bear fruit. This is what this legislation is about. I was satisfied that we could legislate with a certain amount of discretion and giving options to the person in detention, having regard all the time to the fact that persons who were innocent would have no problem whatsoever in giving their consent to any of these tests. An innocent person who was pregnant could, in fact, say to the customs officer: "I am pregnant", and of course we have ultra sound now to diagnose pregnancy. There is a widespread use of X-ray and other detection facilities at airports for luggage and for people walking through particular doorways. You have a whole lot of facilities in existence already.
This was not making it obligatory on anybody but was allowing the Customs and Excise officer some discretion. I do not think that was an unreasonable section to ask the Minister to put in, certainly in view of what Senator O'Toole has just said. It is important that the officers to whom we are giving additional powers would feel that we were giving them powers that were necessary. I hope the Minister will look at what we are trying to do here. At any time that he feels additional powers are required by way of regulation or otherwise, he will have the fullest support of the Members of this House from all sides in bringing it in. If his power of regulation does not confer these rights on him, then I think it should confer them on him. That is what I wanted to do and I wanted to have regard for the reservations people have about X-rays and so on. I felt I had covered that particular point.
The Minister referred to one point of which I was not aware, and I freely admit it, and that was that there seems to be evidence coming from the British side that it is not as effective as we were led to believe it to be in the beginning. If that is the case and obviously I take the Minister's word for it if he has this evidence, it would be unwise to make it a compulsory requirement. That would be bad law. Perhaps the way to do it is to introduce it, to continue with it and to assess it after a while. The National Drugs Abuse Coordinating Committee would take an interest in it and I will certainly raise it at that forum, perhaps in six months time.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 4, between lines 42 and 43, to insert a new subsection as follows:
"(3) If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for detention under this section, he shall be released from detention forthwith unless his detention is authorised apart from this Act."
This is to protect the individual. There are other Acts which give us widespread powers, the Offences Against the State Act and other Acts which are used regularly if there is any area of doubt about trying to detain somebody where conclusive evidence might not be readily available within the prescribed period of hours set down by legislation. Apart from the widespread powers under the Prevention of Terrorism Act under which an officer would have certain powers to continue to detain a person I would not like an innocent person to be unduly detained if there were no grounds or no proof, if all the tests have proved negative and if the information that people had got was not up to standard. A genuinely innocent person should not be kept for longer periods unless there are good grounds for doing so. It is a reasonable section to include in the Bill in a progressive country where we have legislation dealing with people's rights as well as ensuring the security of the State and ensuring that innocent people are protected from people who import drugs illicity.
I second the amendment. It proposes a reasonable and sensible provision. It is the sort of measure that is contained in the Criminal Justice Act, 1984. It is a safeguard of the civil liberties of an individual. It seems to me to be a logical provision and as such I second it.
I have listened to the arguments put forward by Senators Ferris and Bulbulia and I accept the sincerity of the sentiments they have expressed. However, I want to state that section 2 merely provides for powers of search rather than detention. I would emphasise that its net effect will be to enable customs officers to search meeters and greeters at airports, ports and land frontier. At present the customs service has powers of personal search only in respect of travellers or in respect of persons genuinely suspected of an exportation offence. Powers of search of travellers have existed without the need for a statutory safeguard in the terms of amendment No. 13 for more than a century, going back to the 1876 Act.
It is invariably the practice that individuals who have been subject to a personal search are allowed to continue their journey immediately the search has been completed, provided, of course, that the search had proved fruitless. I would be happy to bring forward such an amendment myself were it the case that evidence of abuse of powers by the customs service existed or that they were detaining people for longer than was necessary. We cannot constrain the judgment or the implementation and execution of their duties by the customs officers in their implementation of the laws of the land vis-à-vis the customs service. This section would put a constraint and a time limit on them. We must be guided by their judgment and have confidence in their administration of the law. I believe that this amendment to section 2 is unnecessary and therefore I regret that I have to oppose it.
It would be ungrateful of me if I pressed this amendment in view of what the Minister has just said. He has been very forthcoming with us today and what we have been trying to do here. I accept his suggestion that if he felt this was necessary he would have brought in such an amendment himself. He considers that it is unnecessary and that it might put an unreasonable demand on Customs and Excise officers and restrain them in some way. For that reason I will not press the amendment. I am glad of the Minister's assurances that there will not be any undue delay. If there is an undue delay, the person has the right in law to take the appropriate action, if they feel that their rights and ordinary common freedom were impeded in any way. I accept that there is an existing common law to protect that. I just wanted to be sure that people's rights and privileges were respected.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 12, line 46, to delete "one half thereof" and substitute "one hundred and fifty pounds".
I want to ask the Minister to continue to be the reasonable man he has been all day. I hope he does not stop now when I start because he has been very good to all the other parties. I hope it will continue. It will not cost him as much in effort to do this for me as for the others. The position is that the fine was increased from £6 to £500 and from £200 to £1,000. I have no objection to the increase from £200 to £1,000 because that could be for somebody who is in high production of poteen and offering it for sale. What I am talking about is the person a lot of people talk about, the small farmer. The small farmer would need this kind of embrocation for his cattle and it is good for human beings, too, which is more important.
There is plenty of it in Galway.
It is very good for medicinal purposes. The person I wish to protect is the person who is making poteen for his own use and on a small scale. A district justice will also have jurisdiction to increase the fine but if we tie his hands he has no chance. I would remind the Minister that there is a precedent set for this is so far as in the case of the Abattoirs Bill under which people had to kill in licensed places and the meat had to be stamped the Minister agreed that where a man was killing livestock for his own use he got an exemption to kill without stamping and without reporting to the vet.
The Minister may say that poteen could be sold by the man I am talking about, the small producer, that it would not be for medicinal purposes. There is a simple answer to that. Again there is a precedent because you have red diesel and white diesel. The diesel exempt from duty can be used in tractors and for farm use and there is the white diesel for the cars. Red diesel may not be used in cars. The Minister, if he wishes, can get the poteen coloured by a dye or by any other means. I would ask him to allow for tolerance, leeway and flexibility on the part of district justices in this matter. He will have no flexibility if the minimum fine is £500. It would be crazy.
I will not go into the question of the great value this will become to the country some day when somebody realises the potential and the value of it worldwide as in the case of the bottled water of Ballygowan and Tipperary. They laughed at the gentleman on "The Late Late Show" when he was talking about the water and now Budweiser are distributing it all over the United States. Budweiser could be distributing this too. I am really dealing with the small man and am only concerned with the small man and all I ask the Minister to do is to reduce this in order that the district justice will have flexibility. He will have no flexibility if the Minister sets a minimum fine of £500. The previous fine was £6. I think £500 would be crazy and whoever calculated that, the battery must have gone in the calculator midway. Something happened anyway. I appeal to the good sense and fair play of the Minister and his flexibility and the good mood he is in, because he has proved that he is in a good mood by the way in which he has treated the House all morning.
A Senator
It must be the pioneer pin.
I have already said that. I said it was one pioneer to another.
An Leas-Chathaoirleach
Is the amendment seconded?
I support the amendment.
I listened with great interest to Senator Daly's contribution today and on Committee Stage about the medical characteristics of poteen and I appreciate his concern about the small man. But the difficulty is that if the law is to be specific in accommodating the small man, the small man could become a big man and the law would be laughing at itself or, as they say, the law would be an ass. I sympathise with him and appreciate the painful effects of maladies such as arthritis but I cannot condone any illegal acts particularly those which have potential to produce great suffering and even death. Penalties must be realistic to deal with the problem of illegal distillation. It is the Government's view that a penalty of £1,000 which may be mitigated to not less than £500 is appropriate. The mitigation to 50 per cent of the penalty brings such offences into line with the general practice in relation to the mitigation of Customs and Excise penalties. Despite that very strong language, if you like, I want to further assure the House and Senator Daly that after the decision is made by the court and the justice on a fine of £500, the Minister for Justice, on appeal to him, may open a petition in any case and on the grounds of hardship or whatever he may decide to mitigate that figure to whatever figure he so wishes taking into account all the information available to him on any given case. The person has the opportunity of appealing to the court, appealing to the Minister and ultimately of getting a reduction made by the Minister. Unless we ensure that the law is consistent right across the board in all the Customs and Excise areas, that the mitigation is 50 per cent, we will be creating a situation of imbalance. I would not like a situation to occur that people operating in the production of and commercial exploitation of illicit spirits would make a lot of money at the expense of not alone human beings but also the State, while I do accept that a small production may be of benefit medically to people and also as a veterinary contribution in an amateur fashion to alleviating the ailments of animals. I appreciate the concern and objectivity of Senator Daly but I regret I cannot accept his very moving and passionate plea.
The Minister says that he cannot make an ass of the law and, of course, the world knows the law is an ass anyway. In this particular case I was giving the Minister an example of a precedent. I do not know whether he was the Minister dealing with the Abattoirs Bill, but it is on the record. It is only a couple of weeks back. In the case of that penalty for slaughtering animals without stamping and without notifying a vet the small farmer was exempt if he was doing it for his own use. The small farmer could equally go into the commercial field. He might kill an animal for his own use, sell it and having sold that he might kill another one and sell that. That could happen. Those things will always happen. But the fact that the exemption was given already and the precedent is there I again appeal to the Minister to have a look at that and see if he can deal with it as it was dealt with in the Abattoirs Bill.
I cannot accept it here today but as I gave a commitment on Committee Stage to be objective and as I have been fairly forthcoming in amending the Bill today, I will have a further look at this situation before the Bill goes to the Dáil. If I find that there is some opportunity to have a further reduction, I will give it consideration.
I thank the Minister. I know he is a man of his word and he will do his best.
Amendment, by leave, withdrawn.
Bill received for final consideration.
Agreed to take remaining Stage today.
Question proposed: "That the Bill do now pass."
I sincerely thank you, a Leas-Chathaoirligh, and the Members of the House for the excellent, very positive and informed contributions that they have made. I hope that together the House and I have restrengthened this Bill and that Dáil Éireann will now give it a speedy passage to ensure that we will be able to further apprehend and control those trying to destroy our great, young developing nation by peddling drugs.
Question put and agreed to.
An Leas-Chathaoirleach
May I ask the Acting Leader of the House if it is intended to have a sos?
It is not intended to have a sos.