Amendments Nos. 1, 10 to 13, inclusive, are related and amendment No. 14 is consequential, so all may be taken together by agreement.
Criminal Justice (No. 2) Bill, 1997: Committee Stage.
A list of the amendments to be taken together would be useful.
That will be supplied.
These amendments are linked because amendment No. 1 deals with the commencement provisions of the Bill and is drafted on the assumption that the other amendments, which insert new sections to the Bill, will be accepted. Section 2(2) as it stands provides that the Bill when enacted or any provisions of it will come into operation on such day or days as may be fixed by order of the Minister for Justice, Equality and Law Reform. This type of provision is standard and is intended to allow time for the necessary arrangements to be made before particular sections are brought into force. However, a number of my amendments to insert new sections are stand alone provisions for which no time lapse is either necessary or desirable before they are brought into force, and the purpose of amendment No. 1 is to ensure that these provisions come into operation once the legislation is enacted. On reviewing this matter, I also concluded that there was no reason the existing sections 30 and 31, which contain technical amendments to our extradition legislation, should not also be brought into force immediately on enactment of the legislation.
I turn now to the other amendments which make substantive changes to the Bill which, as I have explained, it is desired to bring into force without the need for a commencement order to be made.
Amendments Nos. 10 and 12 relate to the nomination of judges under particular legislation. The House will be aware that difficulties arose last year on the nomination of judges for the purpose of the Criminal Justice (Drug Trafficking) Act, 1996. Under that Act, periods of detention have to be approved by a judge of the District Court or of the Circuit Court. However, a judge of the District Court was defined in the Act as the President of the District Court and any other judge of the District Court nominated for the purposes of this Act by the President of the District Court. I mentioned on Second Stage that I proposed to amend the Act to allow all judges of the District Court to exercise powers under it. This is being achieved by amendment No. 12 which will delete the definition of judge of the District Court contained in the 1996 Act.
A related issue arises in relation to the Extradition (Amendment) Act, 1994, which provided that judges of the District Court assigned to the Dublin metropolitan district and nominated by the President of the District Court for the purposes of the Extradition Act, 1965, will have jurisdiction to hear extradition matters. I understand that the President has nominated all judges of the Metropolitan District for these purposes and in the light of experience in relation to the nomination requirement under the 1996 Act, I believe it would be appropriate to delete the nomination requirement to which I have referred. Accordingly, under amendment No. 10, all judges of the District Court assigned to the Dublin Metropolitan District will, by law and without any nomination requirement, have jurisdiction in extradition matters.
Amendment No. 11 is a technical amendment to tidy up a numbering defect which has come to notice in the Criminal Justice Act, 1983, as amended by the Criminal Justice (Miscellaneous Provisions) Act, 1997. Section 2(b) of the 1997 Act substituted two new subsections for section 4(5) of the 1984 Act dealing with provisions in relation to detention. However, the manner in which this was done involved substituting new subsections (5) and (6) for the old subsection (5), but there was already a subsection (6). The net effect is that section 4 of the 1984 Act has two subsections numbered (6). While there appears little doubt that the courts, notwithstanding this, would be able to give effect to the will of the Oireachtas in these provisions, as the matter has been brought to my attention I am taking the opportunity provided by this Bill to renumber the subsections involved as (5) and (5)(a).
The final substantive amendment — amendment No. 13 — deals with the abolition of the year and a day rule. Again, I mentioned on Second Stage that I would be bringing the amendment forward. The effect of the common law rule involved is that for a prosecution for murder or manslaughter to be maintained, the death must take place within a year and a day of the wrong done by the accused. As I indicated to the House previously, I regard the rule, particularly in the light of medical advances, as an anachronism and it is in this context that I am proposing its abolition.
Amendment No. 14 proposes changes in the Long Title of the Bill to take into account the changes made by the amendments I have just mentioned.
In summary, these amendments relate to the commencement provisions of the Bill, the nomination requirement for judges of the District Court under particular legislation, a technical amendment in relation to the numbering of a section of the Criminal Justice Act, 1984, the abolition of the year and a day rule and a consequential amendment to the Long Title of the Bill. These amendments are worthwhile and I hope the House will support them.
This section deals with the value of drugs and with offences relating to the possession of drugs valued at £10,000 or more. This poses a difficulty as to how the value of any consignment of drugs is arrived at. The Bill states that evidence will be given in court by a person or persons with knowledge, that is, gardaí or customs officers. That will be blown to pieces in court. There is no market for drugs in the sense of the marketplace as we understand it. It is regulated by supply and demand which can vary from place to place.
I do not understand why the Minister did not insert value by weight and draw a distinction between soft and hard drugs. A value by weight is objective and tangible. Accusing someone of having a consignment of drugs worth £10,000 or more and giving them a minimum sentence of ten years will not stand up and will be open to successful challenge.
I agree with Senator Connor that the nub of the question is mandatory sentencing as a philosophical concept. The area has many dangers and is likely to be ineffective in reducing crime. One is assuming these kind of criminals make a rational choice, tot up the odds and decide not to engage in an activity because the penalty is at a certain level. This is extremely expensive. If we want to put people away for a long period of time, we ought to bear in mind it costs £46,000 a skull to keep them in jail.
It may also have unjust complications. My colleague, Senator Costello, asked me to move some amendments on his behalf if he is not present so I will put some preliminary markers down at this stage. There is a manifest unfairness that somebody caught with £9,999 worth of heroin can avoid jail altogether but someone with £1 more may go to jail for ten years. There is an enormous gap. When a limit is set, some people will be deemed to be treated arbitrarily and unfairly. However, this section indicates the capacity for unfairness in the system.
For that reason, some of Senator Costello's amendments will propose to instil a degree of flexibility. It is dangerous that there is no flexibility in this section. If juries are involved in these cases, they may not want to convict because they are aware the judge has no room for manoeuvre. If there is a fluid majority-minority situation, the jury may decide it does not want to convict because the sentence is too harsh even though it has a strong inkling the person involved is guilty.
The Department of Justice, Equality and Law Reform has done some good work, although I occasionally tease it. We must recognise this and not dismiss the patient work it has done. I refer in particular to the discussion paper it produced during the year called Tackling Crime which shows a more sensitive approach to the issues, expresses a commitment to basic research and places a firm emphasis on consultation, co-ordination and review. I hope the progressive and more sensitive attitude of this document will be borne in mind and the Minister will consider the proposed amendments.
I know Senator Connor opened a discussion on the section. I made these philosophical points as a preamble to the argument which will be made either by Senator Costello or me. I know the Minister takes rational argument on board and I hope my argument is sufficiently rational to merit his attention.
First, I will deal with the points raised by Senator O'Connor. The question of values is defined in section 15A(5) as inserted by section 4. The new section 15A(3) allows evidence on value to be given by customs and excise officers. It is clear from the legislation that in assessing the value of drugs during a case, the court will be allowed to hear evidence on the market value of drugs from a garda or an officer of the customs and excise, whom the court is satisfied has knowledge about the unlawful sale or supply of drugs. The court is empowered to decide what weight to give that evidence.
I accept the argument that this ten year mandatory sentence is a tough one. I do not accept the argument that because a specific value is set out in the legislation it will be open to abuse. In the first instance, the Director of Public Prosecutions will decide whether a case should be taken, a discretion which is exclusive to him. The DPP will not decide to charge someone under this section if he doubts whether the value of the drugs concerned is over £10,000. The DPP will use his considerable experience in coming to a decision on prosecutions. To be fair, it does him no credit to say he would bring cases under this section where there was some doubt.
The argument that the definition should be by weight does not stand up. How can we say that X weight of one drug is worth Y weight of another?
The same applies to money.
This Bill recognises that anyone dealing in drugs with a street value of £10,000 or more is a major player and a clear message is being sent out to people involved in this pernicious business at home or abroad that if they are caught in this jurisdiction with drugs of that value with an intent to supply, they will serve a minimum of ten years in prison.
With regard to the argument that people caught with £9,999 worth of drugs will be subject to a far lower sentence than a person caught with £10,001 worth, it is already the law that a court may hand down sentences up to life imprisonment for offences such as this. In the event of an individual being found in possession of drugs with a street value of £9,999 with intent to supply, it would be open to the courts to impose a similar sentence to the ten year mandatory sentence applicable to £10,001 worth of drugs.
We are splitting hairs here. I am satisfied that the Director of Public Prosecutions does not bring cases to court unless he is satisfied there is a good chance of a successful outcome. A chance of success in cases such as this is that a court will hold that an individual is guilty, under the section, beyond a reasonable doubt. For that standard of proof to be reached, it must be clear to everyone that the necessary evidence is forthcoming.
The change brought about by this legislation is that, for the first time in Irish history, there is a mandatory minimum sentence for serious drug dealers and people who become involved in the destruction of young people's health and lives. I do not believe there is any sympathy in this House or in any part of civilised Irish society for such people, nor should there be. The Government's decision to implement its pre-election promise to provide for a mandatory sentence of ten years is one which I believe will be broadly welcomed.
We want to assist the Minister in making this law watertight. This legislation represents a continuation of three or four other major pieces of legislation introduced by the previous Minister, the last of which dealt with the Criminal Assets Bureau. This legislation is a welcome complement to the legislation which preceded it. Nevertheless, I am not convinced by the Minister's arguments that the Director of Public Prosecutions will be able, on consideration of all of the evidence, to make up his mind whether the value of the drugs concerned is sufficiently accurate to warrant charging someone under the minimum ten year sentence.
I believe we can measure the value of drugs and the damage they could cause more accurately by their weight than by their very variable value in money. There is no such thing as a free market in drugs. There is no market price for drugs in the same way as there is a market price for commodities such as tobacco, wheat and so on. The Minister is a member of the legal profession, as is the Government spokesperson on Justice, Senator O'Donovan. They are both aware that with that kind of uncertainty existing about the value of the commodity, the Bill will be wide open to challenge in the courts. If value is based on money, the provisions of the Bill will never stand up in court.
I understand that when a consignment of drugs is being examined, the forensic science laboratory tests one sample of the drug in order to attest to its purity in terms of its overall volume. The forensic science laboratory is working to its limits. I understand there are many delays involved as it is unable to deal with all the work it must do. If we are talking about the specific values of drugs consignments, surely the laboratory will be obliged to test every gram of drugs hauls in order to determine their purity. There is no other way to assess the value of drugs unless entire consignments are properly tested. That aspect is not addressed in the Bill and I urge the Minister to reconsider it.
We want to co-operate with the Minister and make this Bill workable. We do not want to find that somebody with an alleged £20,000 drugs consignment has his or her case blown out of court because the State cannot prove the value in money terms of that consignment. Value is based on the evidence of the Garda and Customs officers who may know something about the street prices of drugs. However, the price of drugs in Hardwicke Street may be different to that in other areas of Dublin as drug prices vary. I ask the Minister to take on board our reasoned and reasonable arguments that value must be determined in accordance with something other than money.
The Minister is aware that I do not agree with his approach to this issue. I invite him to return to this House next year or in ten years' time and demonstrate to us that this stern approach has worked. The record in other countries shows it simply will not. To a large extent, this Bill is a public relations exercise which has no chance of working. It will only serve to drive up the price of street drugs and will concentrate huge resources of money in fewer and fewer hands. For every person sentenced, the taxpayers will have to pay £46,000 per year. I cannot say that would be Senator Costello's view but I think it is a reasonable position which can be logically argued.
I do not feel any warmth whatsoever towards drug dealers; my position is simply a logical one towards which an increasing body of responsible legal and police opinion is moving throughout the world. I wonder why mandatory sentences are being introduced at this point. Do we not trust judges or are we afraid they will be suborned by offers of money? Why do sentences become mandatory at a particular point? Does the Minister recognise any difference between marijuana, cannabis and heroin? There is a considerable difference between them; cannabis is not chemically addictive whereas heroin and other opiates are.
I am not convinced of the merits of judging value by weight as opposed to money but Senator O'Connor is correct in saying that prices fluctuate. How does one prove value? Are we going to print a drugs exchange in The Irish Times every morning listing the street prices of drugs?
Current and future prices.
Exactly. They will have a futures market in hash. It will be extremely difficult to establish a price. Does the Minister, or his advisers, see a difference between cannabis and heroin? If people will be automatically put in jail for supplying £10,000 worth of heroin, there will be a considerable number of people in jail at any one time because the consumption of drugs is so widespread, not just in Dublin but throughout the country. The net result of this kind of policy will be an increase in violence, which is not what the Minister envisages or wishes. A mandatory sentence of ten years is perilously close to the kind of sentence that would be served for armed robbery or murder. We already have the involvement of an armed element in the drugs trade and this kind of sentencing will lead to a much more cavalier attitude to the use of firearms by drug barons. That worries me.
I have always argued for policies which would reduce the incidence of violence and robbery, but I do not honestly see this sort of legislation doing that. It will only increase it while at the same time providing a sop to public opinion to make it appear that the draconian measures being taken will be effective. Draconian measures are being taken, but I doubt strongly that they will be effective.
I agree with Senator Norris's observation that, regrettably, the country seems to be awash with drugs. The measures being introduced by the Minister reflect the reality that a serious drugs problem exists. Senator Norris referred to mandatory sentencing. It is incumbent on the Minister and on any Government to stop the spiralling drug problem. Without mandatory sentencing one will not hit the drugs barons where it hurts them most.
One could argue about the financial value of drugs and Senator Connor made that point, but when is murder manslaughter? If one goes by weight, does one not have to check the purity of the drugs involved? The purity of certain drugs such as crack, cocaine and LSD depends on how they are composed.
I made that point.
A monetary value of £10,000 is a common sense yardstick. Anyone who dabbles in drugs with that value, whether cannabis, heroin or LSD, runs the risk of being imprisoned for a minimum of ten years. However, most gardaí will not bother prosecuting someone driving at 43 miles an hour in a 40 mile zone — they will use a common sense approach. Similarly, I concur with the Minister's point that the Director of Public Prosecutions will take a sensible approach to this matter.
The likelihood of a successful challenge on the issue of whether the value of the drugs concerned is £9,900 or £10,100 would be most unusual. The Minister also pointed out that we are modernising the law on drug trafficking. As the law stands, one can be jailed for up to 21 years for possessing less than £10,000 worth of drugs and that likelihood still exists. The £10,000 guideline is a sensible yardstick. Perhaps in ten years' time we will be told it was too little or too much, but we must start somewhere.
I urge Senators to accept the Minister's strong comments and observations. We will never achieve utopia, but this is a sensible and necessary approach. The sooner we get this legislation on the Statute Book the sooner our streets will be safer.
I am sure the Minister appreciates that we all wish him well in his endeavours to control drug trafficking. In all sincerity, however, I share the concerns of Senator Norris and Senator Connor about the figure of £10,000, with which I have difficulty. Legal precedents in our courts have been based on technicalities, which some people would see as nit-picking exercises, but that is what good lawyers do. As far as I am aware, the value of illegal drugs in Britain is determined by weight.
I am also concerned about the proposal to detain people for up to seven days. I appreciate that in the war against drugs we must use all possible legal measures. I have nothing against a seven day detention period if that time is used to further investigate the alleged crime. However, if that time was to be used for further interrogation - history has shown us that anyone will crack under a prolonged period of questioning — I doubt that it would be a valid or just way to proceed. If we do introduce a seven day detention period we should use it constructively to make sure that justice is done. We are on a very narrow tightrope regarding this matter.
I note at the outset that Senator Connor did not table any amendments to the legislation, but if he does so on Report Stage in relation to the matters he has mentioned I will consider them. I am doubtful, however, that the approach he has proposed would be an improvement on the legislation before the House. I understand the concern of Senators Norris, Connor and Ridge about the legislation. The fact is, however, that three times during the course of the last Dáil, I put forward a proposal to the House for a mandatory sentence of ten years' imprisonment for any individual found in possession of illegal drugs, with intent to supply, to the value of £10,000 or more. Three times in the course of that Dáil the provision was voted down by the then Government.
Senator Connor said this legislation is merely a follow on from legislation which was enacted by the previous Administration. He referred to the Criminal Assets Bureau.
And the Drug Trafficking Bill.
I would respectfully remind him that the Criminal Assets Bureau arose as a result of the Proceeds of Crime Act, 1996, which I introduced in the Dáil from the Opposition benches. There would be no point in having a Criminal Assets Bureau if the Proceeds of Crime Act, 1996, which I introduced to the House, had not been enacted.
In the course of the general election campaign last June, people were made quite aware that a ten year mandatory sentence for serious drug dealers and traffickers would be enacted by the Government if my party was returned to office. As it turned out, my party was returned to office with the Progressive Democrats and with the support of three Independent TDs. In so far as I can gauge it, there was acceptance of the proposal which received a considerable amount of attention from the media.
The legislation is tough, there is no denying that. However, to say, as Senator Norris did, that it is put forward for PR reasons is a facetious argument. There is no great PR exercise involved for an individual who will find himself sentenced to ten years imprisonment arising out of this legislation. Far from it, it will be a very clear indication of society abhorrence of this kind of offence.
Senator Norris asks whether we trust the judges. Yes, we do and I have the greatest respect for the Judiciary, but I maintain that society has the right, if it should deem fit, to express its absolute abhorrence of a given offence in as trenchant a manner as it would wish, and it has done so in relation to other matters. For example, some years ago the Legislature enacted a law abolishing capital murder and replacing it with a minimum of 40 years imprisonment. That, I respectfully submit, was not done as a PR exercise no more than this is but to reflect the abhorrence of the Legislature and society of that kind of offence.
I am well aware that this particular provision has been under serious assault inside and outside this House for many months, but I remain convinced of the necessity for this legislation. I always said this legislation would be introduced in the event that we returned to Government and I am keeping my word.
Let us be clear about this. It is not as if there is not a very strong provision in Irish criminal law already relating to sentences of this nature. As I said earlier, Irish courts can, in certain instances, impose sentences of up to life imprisonment for offences similar to this. The change which this legislation makes is quite simple. If an individual is found to be dealing in drugs with a substantial value — that is £10,000 or more — then he must receive a sentence of at least ten years imprisonment as a sanction from the court. In my view, that is a response society requires to a serious problem and which society, on reflection, will be glad that the Oireachtas took.
The Minister referred to the victory of his party at the last election and admitted that it is in Government now with the assistance of the Progressive Democrats and three Independents. That was scarcely an overwhelming endorsement.
However, he did not really address the difference between cannabis and heroin. That is significant, so I am sure he will. The law already acknowledges a difference in the Misuse of Drugs Act, 1977, where a person cannot be sent to jail on a first conviction. Therefore, the law already recognises there is a distinction between cannabis and heroin, for example, and I am interested that this distinction is preserved in law.
The Minister, of course, is correct. We should not delay too long over this section because, since none of us has tabled amendments to it, it seems slightly absurd to be discussing it to this extent. However, I propose to table, or at least suggest, an amendment which does not argue my point philosophically. Far from it, I think it actually assists the Minister in his task of getting people convicted. I would like to hear his response.
The Bill states on page 7, between lines 20 and 25, that "'market value', in relation to a controlled drug, means the price that drug could be expected to fetch on the market for the unlawful sale or supply of controlled drugs;", but that is still pretty vague because there is no reference to time. We know there are massive fluctuations in the price of drugs on a week to week, and even day to day, basis. Therefore, I would suggest that the Minister might be well advised to insert the words "at the time of the alleged offence" after the words "the price that drug could be expected to fetch on the market". What happens if there is a massive drop in the price of the drug between the time the man or woman — let us be honest and non-sexist because I remember a woman in a wheelchair was convicted for possession of a massive amount of heroin — is charged and the day on which the case is heard? In terms of the vague way this is phrased, I am assuming that one could pick a date on which the price was particularly low and argue that it did not meet the provision. I am not sure if that is the case, but I am sure the Minister will have an answer.
My suggestion that this was a PR exercise to some extent is not facetious and nothing in what the Minister said contradicted the possibility of somebody putting that construction on it. The fact, for example, that, as he quite rightly stated, large sections of the public might be delighted to see people receiving a ten year sentence for handling drugs — irrespective of whether they were soft drugs because when reading a headline "Drug Pusher sent to Jail" people do not distinguish between hard and soft drugs — but when the Minister says this kind of thing is abhorrent to the Irish people, that is not true universally. There are huge numbers of people using drugs, particularly cannabis and there is a growing lobby for the legalisation of cannabis, not just in this country but throughout Europe. Therefore, it is not entirely true to say that it is abhorrent to everybody. It cannot be abhorrent to the people who regularly smoke the stuff.
The Minister makes great play of the fact that he demanded and campaigned for a mandatory sentence of ten years during his time in Opposition. He knows that even this legislation does not contain a mandatory sentence. It contains a presumptive sentence of ten years because naturally he had to include circumstances in which that sentence could be reduced. That is provided for in section 5(3).
It is a fundamental principle of Irish sentencing policy that there be proportionality about all sentencing. The Minister knows that ten years, not one minute less could not be enacted in law because the fundamental principle of proportionality must always be observed and it would be found to be unconstitutional. It looks as if he just thought of a figure — £10,000 and ten years.
The fundamental point is that drugs worth £10,000 in my county of Roscommon, for example, would have a different value in Dublin. The value varies from one part of the country to another. Will a person found with an amount of drugs worth £10,500 in one part of the country and a person found with the same amount of drugs in another part of the country where they are worth only £5,000 be sentenced differently?
The measure value must be changed. Senator Ridge made the point that drugs are valued by weight in other jurisdictions rather than by their so-called market value. No market exists for drugs in the accepted sense. This must be looked at seriously. I hope the Minister will return to this point before the passage of the Bill.
There are serious mistakes in the legislation in terms of, first, the imposition of a mandatory minimum sentence and, second, the absence of a distinction between the different categories of drug abuse. The Minister will probably live to rue the fact he has, undoubtedly with serious and genuine intention, determined to take a strong stand on drug trafficking and to put down a marker that it will not be tolerated under any circumstances. However, I am not satisfied the proposals in sections 4 and 5 will achieve that.
There are many serious problems with the mandatory ten year minimum sentence for possession of £10,000 worth of drugs. The Minister will find it is virtually impossible to operate the criminal justice system unless the Judiciary has some discretion in relation to sentencing. When someone is found in possession of £10,000 worth of drugs there are many possibilities in terms of the type of drugs, the circumstances and the options for sentencing.
We have a serious crisis in our prison system. As the Minister knows, our prisons are bursting at the seams, with doubling and trebling up in almost all prisons at the moment. Regardless of what plans the Minister or future Governments have for the provision of new prisons, they will not be able to cope with the number of prisoners that will result from the imposition of mandatory sentencing.
The prison population has changed over the past ten to 15 years. Serious drug and sex offenders did not impact on the prison population profile before 1980. It is estimated now that 80 per cent of prisoners in Mountjoy Prison were sentenced for drug related offences. All of Arbour Hill Prison and half of Wheatfield Prison are occupied by sex offenders. These are serious offences for which offenders should serve long sentences. However, the result is that very little space is left in the prison system. If we now impose a mandatory sentence for possession of £10,000 worth of drugs the prison system will be unable to function.
The Law Reform Commission strongly recommended the abolition of mandatory sentences. I do not know why the Minister feels bound to go against its recommendations in this respect. It is contrary to our system of justice, which has always operated on the basis of allowing some judicial discretion, which enhances the separation of powers between the Judiciary and the Legislature.
The survey on youth drug abuse published today shows that 50 per cent of young people have abused drugs, virtually all of which were what are described as soft drugs. Last week some of those working in the Merchants Quay project led the charge for the decriminalisation of heroin. I do not think many of us would agree with that, especially those of us from disadvantaged communities which have been destroyed by heroin. However, there is a strong lobby for the decriminalisation of cannabis.
Without getting into the philosophical or pharmacological arguments about soft and hard drugs, I wish to make a point about the devastation caused by heroin. Heroin has ruined people's lives and given rise to many drug related offences. It is an expensive drug which does not have a social component. It is prevalent in disadvantaged communities and has given rise to crimes which enable addicts to feed their habit. While none of us condone the misuse of any drug, the use of softer drugs, such as ecstasy and cannabis, does not give rise to the committing of ancillary crimes to feed an addiction. Heroin addiction costs at least £100 a day, which addicts obtain by committing crime.
It is necessary to distinguish between soft and hard drugs. That distinction was made in the Misuse of Drugs Act, 1977. I do not see why we should move from that position. There was a greater degree of flexibility and a definition was provided. We are now failing to make that distinction and are imposing mandatory sentencing.
The effect of the legislation will be to target relatively low level operators, such as pushers who are themselves addicts and drug couriers. This will not affect the big operators and drug barons. The proposal will target those who are victims and are supplying a small amount of drugs, which could easily have a street value of £10,000, to friends to feed their habit. The big drug barons will keep their hands cleaner than ever. I know the intention is genuine but this is an unfortunate provision in the Bill because it will run into so many legal, judicial and operational problems as well as physical problems in terms of the provision of space. The Minister will rue the day he put forward this proposal.
We should not lose sight of the thrust of this Bill when we discuss these amendments. I agree with Senator Costello on the major problem of heroin and what it has done to areas of Dublin but there have been millions of pounds worth of drugs smuggled into remote parts of west Cork, some of which have still to be found. In this regard the thrust of the legislation is to teach people a lesson and to signal to the international community that we are not a soft touch for drugs.
In the past 15 years we all have been touched by the effects of drugs. It is regrettable that about 60 per cent of the children who took part in the survey mentioned by Senator Costello, ranging in ages from as young as 12 years and upwards, have experimented with drugs. In the fight against drugs we should not forget that in the past 12 months the Garda have been extremely successful in recovering drugs. This has had a major impact on drug barons and importers of drugs. We are not talking about people charged with possession of a few grammes of marijuana or an Ecstasy tablet. In my experience these people are given a slap on the wrist and informed that if they come before the courts again they will be in serious trouble.
This legislation must send out the message that Ireland is no longer a soft touch for drugs and that we have a highly trained and sophisticated Garda force who are able to tackle the problem. This was not the case ten years ago.
There are higher penalties abroad but they have not worked. Why should they work here?
Senator Norris can argue that point. In a Utopian society there would be no need for jails but we must live in the real world. Through the people I have met I have discovered there is a huge demand by society for us to tackle the drug problem with tough legislation. There is no way out of mandatory sentencing and the thrust of what the Minister is endeavouring to do has widespread support abroad. If anyone has another answer to this problem I would like to hear it. Do we let the people who have poisoned our young people and society get away with it? Ireland is being used by drug barons as a spring-board into the rest of Europe for their imported drugs from South America and elsewhere. The Criminal Assets Bureau must target the profits of the drug barons. Mandatory sentences of at least ten years for dealing in large quantities of drugs will teach drug dealers a lesson. We are trying to be in line with the rest of Europe.
The gardaí are very well trained. Ten or 15 years ago a garda would not know the difference between cocaine, cannabis or an Ecstasy tablet. They would not have had the technology or training for that but the situation has changed. I compliment the gardaí in Munster on their recent success in recovering drugs. Some of the finds contained huge quantities of Ecstasy and other drugs for sale on the Dublin or Cork city markets. I wish the Garda continued success.
I also compliment the Minister for adhering to mandatory sentencing. This is very important and must be implemented. Already in Amsterdam and elsewhere there is a fear among drug barons that Ireland, as it enters the next century, will have clamped down on drugs. If my colleagues take away mandatory sentencing they are taking away the power of this Bill.
I wish to refer to Senator O'Donovan's last point. The most significant message this House can give to the purveyors of cancer in our society — that is what they are — to the potential mass murderers, is to tell them unambiguously, and hopefully with one voice, that if they commit the crime we will make sure they do the time. There is little point bringing forward a Bill to tackle drug barons unless we show them we are serious. We have to prove to them beyond a shadow of a doubt that this House will not countenance the kind of massive irresponsible behaviour of which they are guilty. Discussing other solutions apart from mandatory sentencing is dodging the issue that society is so threatened by these people that, at the very least, they believe these people should be put away. Society deserves to be rid of drug barons for a mandatory minimum period. I am not satisfied that the minimum mandatory sentence proposed by the Minister is adequate.
A hardened criminal is a hardened criminal. You can propose rehabilitation programmes, psychological reorientation programmes, etc. but, at the end of the day, these people understand one message and that is that as hardened criminals, they have to be taken out of circulation. Society has to be rid of them for a minimum period of time.
I do not advocate that thousands of pounds of taxpayers' money be used to rehabilitate this type of prisoner. I know that is not politically correct to say but hardened criminals rarely reform and they are invariably men. I stand open to correction on this by anyone, especially experts on the criminal justice system.
What an unchristian thought? Can the Senator give me the book and verse from which he is quoting?
Christianity dictates that we protect the ordinary decent law abiding citizen be they taxpayers, unemployed, etc. Responsible members of our society must be protected from these mass murderers and the only way to ensure this is to take them out of circulation.
I congratulate the Minister for standing by the fundamental principle of this Bill in the face of stern opposition and criticism. It is a core principle of this Bill that mandatory sentencing should deliver a powerful message to the community that this House takes its concerns and anxieties seriously and is acting accordingly. The Minister is doing something significant in allaying these fears by putting these mass murderers and purveyors of social cancer out of circulation.
I thank the Senators for a comprehensive debate. Senator Norris raised the issue of differentiation between kinds of drugs. Since amendment No. 2 relates to this matter I should prefer to reserve all comment on it until we deal with this amendment. I thank Senator Norris for agreeing to that.
With regard to the reference to a PR exercise, I can only repeat my observation that when the first drug trafficker is sentenced to ten years under this legislation he or she will not regard this measure as a PR exercise.
There is still a PR angle. It is important to send signals to the public.
Senator Norris and I will have to agree to differ on this point. It is, of course, important to send a signal of society's abhorrence of such crimes. Senator Costello does not support minimum mandatory sentences. He is entitled to his view but I have explained that I regard them as appropriate and have set out the reasons. Senator Costello also raised the matter of not distinguishing between different types of drugs. I will deal with this matter when the amendment on it is being discussed.
Mandatory sentencing will not worsen the problem of prison accommodation. The effect of mandatory sentencing will not be felt until prisoners begin to serve the extra part of their sentences and that time substantial extra prison accommodation will be available. If a person who might now be sentenced to six years were, under this legislation, sentenced to ten years, the demand for prison accommodation would not arise until the extra years of the sentence were being served. In other words, it will be six years before extra prison accommodation is required. I expect there will be considerable extra prison accommodation by then. Senator Costello drew the attention of the House to the distinction made with relation to supply. I will deal with that matter when we discuss the relevant amendment.
Irish criminal law distinguishes possession of, for example, cannabis for personal use. No distinction is made in relation to supply between various categories of drugs. My research tells me that while possession is a criminal offence, consumption of illegal drugs, with the exception of prepared opium, is not. When an illegal drug enters the blood stream as opposed to one's pocket, Irish criminal law loses interest in it. This is a matter for discussion on another day but it is, nonetheless, an interesting point.
Perhaps we need a drugs in the system Bill.
I sincererly hope that the legislation has the effect which Senator Costello described and brings certain people into our prisons for a considerable period. That is where such people should be. Senator Costello will be more aware than many that parents are more afraid of the threat of drugs to their children than of anything else. This measure is not the solution of the entire problem but it is a genuine attempt to apply a sanction.
I have already referred to the question of judicial discretion. I thank Senators O'Donovan and Fitzgerald for their contributions. Some objective observers might say that, in all the circumstances of the case, my proposal is a reasonable compromise.
Will the Minister comment, if he feels it is appropriate at this time, on my suggestion that the market value should be that at the time of the alleged offence? I thought the Minister intended to comment on this but he did not.
Senator Norris' point is a very good one. It is, however, covered in section 4 where a new section is inserted into the Misuse of Drugs Act, 1977. Section 15A(1)(b) of the Misuse of Drugs Act, 1977, now reads:
15A.—(1) A person shall be guilty of an offence under this section where—
(b) at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to £10,000 or more.
If, while the drugs are in an accused person's possession and mindful of variations in value which might take place, their value exceeds £10,000 at any time, the person can be convicted. This is a very good point and it is, as I have pointed out, covered in another part of the Bill.
I am grateful to the Minister for his very clear answer.
I move amendment No. 2:
In page 7, between lines 41 and 42, to insert the following:
"(3C) Subsection (3B) of this section shall apply only to such categories of controlled drug as are prescribed for the purposes of that subsection by regulations made by the Minister.".
A number of the arguments relating to section 4 overlapped into issues involving section 5. I consider amendment No. 2 to be the most important of those put forward, particularly in the general context of the earlier debate when concerns were expressed regarding the operation of mandatory sentencing and the lack of definition in respect of soft and hard drugs. It is important that we get it right in terms of the focus placed on us. Everyone agrees that we must send out a strong message to criminals at large, particularly those in the drug fraternity, that we will not tolerate the trafficking or distribution of drugs in our jurisdiction and that we will be tough on those involved in this trade. It is important that this is done not merely by bringing down the sledgehammer but by showing that we have a serious, rational and comprehensive approach to this area.
Specific proposals put forward in legislation must dovetail with the overall policy on criminal justice and we must be able to apply this to the social background against which drug trafficking takes place and the pharmaceutical and chemical contexts to which drugs pertain. There is a world of difference between heroin and cannabis. As already stated, the Misuse of Drugs Act, 1977, makes a distinction between cannabis and other drugs. As the Minister stated, that distinction relates to possession of cannabis for personal use and there is no real distinction between possession and supply of the drug. Nevertheless, we are discussing distinctions between heroin, which is essentially a hard drug, and cannabis, which is categorised as a soft drug.
While the argument will continue about whether abuse of soft drugs leads to abuse of hard drugs, we must recognise that there is a substantial difference between trafficking in heroin, which is the common drug among those living in disadvantaged and deprived areas of Dublin — it is not used to such an extent in other areas throughout the country — and trafficking in cannabis. Heroin has caused absolute and utter devastation and prompted the introduction of much legislation and the implementation of many policing and sentencing measures. If we consider this matter clearly and carefully, we know that heroin is the killer drug and we must be sure that we do not create a situation where that distinction becomes completely blurred by our failure to affirm that fact.
Amendment No. 2 suggests that provision should be made for the prescription, by regulations made by the Minister, of categories of controlled drugs. This would leave the Minister and his successors with a degree of flexibility to consider the availability and supply of and the serious devastation and overall ripple effect caused by various categories of drugs on the community. We should also consider the possibility of future developments in pharmacology in respect of the effects of these drugs.
There is a need to specify distinctions. If we are discussing the imposition of a mandatory sentence, we must be able to state categorically that we know what we are talking about. We must also be able to direct mandatory sentences at the heart of the problem; we do not want to spray them all over the place. As Senator Fitzgerald stated, we want to direct such sentences at hardened criminals.
Are hardened criminals the victims, these people who, because they are drug addicts, are unemployed, purvey drugs to their friends to maintain their own habits without having to commit crimes outside the drug trade? Others commit crimes such as stealing, carrying out robberies and burglarising houses to maintain their habits. The profiles of those incarcerated in Mountjoy Prison provide a great deal of information about those who commit crimes. If the Minister considers such information carefully — I am sure the facts and figures are readily available to him — he will discover that those crimes were related not to the supply of cannabis, Ecstasy or cocaine but to the supply of heroin to themselves. These people are heroin addicts who must find the means to maintain their addiction and they do that by either selling small amounts of drugs to their friends or by committing crime.
We should leave scope in the legislation to allow for categories of controlled drugs to be prescribed by regulation from time to time by the Minister. In this way, we will know what we are attempting to achieve and will be able to see how the legislation is functioning. We can take action if we believe the prescription relating to a drug such as heroin is not adequate. If another drug appears which causes the same mayhem as heroin, it can also be prescribed. If future pharmacological developments determine that there is an absolute link between a soft drug such as cannabis and a hard drug such as heroin, cannabis can also be prescribed under the terms of the regulation for controlled drugs in the legislation and subject to the mandatory sentence.
I make the point — Members comments on section 4 built up towards it — that we need to focus legislation. If legislation is not focused it cannot be implemented. If we cannot implement it, it is useless and may prove counterproductive. I urge the Minister to accept amendment No. 2 which will strengthen the legislation. It will not in any way reduce his power to tackle the problem of serious drug trafficking in Ireland.
I agree with Senator Costello. I have a difficulty with the minimum sentence of ten years for drug trafficking offences. I do not wish to repeat my earlier remarks but I return to the point that the value of drugs is not to be specified by kind, weight, etc. A notional value of £10,000 has been proposed in that regard. It is extremely dangerous to impose a minimum sentence of ten years which, by anyone's reckoning, is harsh. This has been stated by judges in the criminal courts in the past and many of them will not welcome the provision. I appeal to the Minister to reconsider the position.
A minimum sentence of ten years for possession of £10,000 worth of cannabis is extremely harsh, particularly in the absence of weight or kind in the specification of the drugs. I agree that a minimum sentence of ten years should be imposed in respect of possession of £10,000 — I believe the amount should be less — of heroin. This has not been thought out. It is a broad brush approach without considering the effects of the various kinds of drugs. Many people hold the view that cannabis is far less harmful than tobacco or alcohol. These matters need to be thought through.
The Minister has made great play of the sentence of ten years. He plays to a certain tabloid element of the public saying that a ten year sentence is absolutely necessary. However, the Bill provides a qualification in that, where the courts find there to be exceptional circumstances, the sentence can be reduced — for example, in the case of a child or young person. As Minister for Justice, Equality and Law Reform, the Minister must think in terms of justice. He should not go down in history as the Minister for punishment because he feels he wants to punish in all circumstances. He should reflect on the broad aspects of justice which are his brief. I urge him to be cautious and to consider the points made and the amendment.
I have some difficulty with the points made by Senators Costello and Connor. If I were as assured as they seem about the distinctions they draw — the minimal potential for progression from one type of drug to another and the less harmful nature of certain drugs vis-a -vis alcohol or nicotine — I would be more encouraged to support their approach. With regard to the chemical compositions of drugs or the way they affect people, I cannot say whether they are correct. If they are, why have alcohol and cigarettes not been made illegal rather than the drugs in question?
We should look at them.
Alcohol and cigarette consumption are not illegal but the types of drugs regarded by some experts as less harmful than others are illegal. I regard this provision as targeting pushers and not addicts. Therefore, I have difficulty supporting the amendment.
A sum of £10,000 is substantial, especially in the context of illegal drugs. Illegal drugs may include growth hormones for cattle which get into the meat we consume. In many cases those drugs are more frightening because we do not know if they have been used. In all cases where there is a quantity of illegal drugs to the value of £10,000 or more in the possession of a person I regard it as a very serious offence, irrespective of the perceived wisdom as to the degree of addictiveness or harmfulness of the particular drug. A person carrying a quantity of drugs of such a value is in the serious business of promoting addiction to an illegal drug and, therefore, is in the business of casting aside any moral judgment about the harm he/she is doing or is likely to do to society. Social justice and concerns dictate that there should not be a distinction drawn at this point.
Senators may say that their view will be proved to be true in time to come. However, it may be proved that their arguments are not correct. Since I do not know and cannot definitively state that their views are incorrect, I would prefer to err on the side of caution and state that distinctions should not drawn in the Bill in terms of the £10,000 market value of an illegal drug. It would be difficult for the Minister to prescribe by regulation one type of drug to the value of £10,000 and refuse to prescribe by regulation another type of drug because it is deemed by some to be less harmful.
As I understand it, the intention of the amendment is that a Minister would be able to specify by regulation the controlled drugs to which the mandatory ten year penalty would apply. This envisages that it would be open to a Minister to prescribe by regulation that the mandatory penalty would apply to what are referred to as hard drugs as opposed to soft drugs. If that distinction should apply, its implications are so farreaching that it should be made by the Legislature in primary legislation rather than left to a Minister to deal with by way of regulation. I have doubts whether this purported delegation of legislative powers to a Minister would be constitutional. Under the Misuse of Drugs Acts the Minister for Health and Children has the power to specify controlled drugs by regulation. However, what is at issue in this case is a different matter. The mandatory provisions should apply to all controlled drugs. I cannot support the amendment.
I have sympathy with the thinking behind the amendment to the extent that there is no doubt the availability of heroin and the activities that surround it represent the worst aspect of the drugs problem. In bringing in this Bill I gave a great deal of thought whether a distinction might be made with regard to various types of drug. However, for the reasons I will explain, I came to the firm conclusion that such a distinction would not be appropriate.
The provision in relation to mandatory sentences is geared primarily towards those who trade in illegal drugs as part of an organised criminal enterprise. We are not talking about a person who purchases enough cannabis for themselves and a friend and sells it to a friend. As Senator Fitzgerald pointed out, we are talking about someone involved in the possession for supply of illegal drugs to the value of £10,000 or more. We are dealing by definition with someone playing a substantial part in the supply of illegal drugs.
The nature of the organised drug trade we are dealing with is that many of those involved will trade in hard and soft drugs as part of a ruthless criminal conspiracy which has wreaked havoc in many communities. The activities of these gangs are not confined to supplying drugs. Their activities have involved, and continue to involve, intimidation and murder. In those circumstances it seems right that a person whose activities are a mainstay of that criminal enterprise should face a mandatory sentence in terms of the possession for supply of £10,000 or more of illegal drugs irrespective of the type of drug involved.
Even if these were not valid considerations, we would enter a quagmire trying to make a distinction in the context of this legislation on the basis of the type of drugs at issue. Is it to be seriously suggested, for example, that a person who has £10,000 worth of Ecstasy tablets for supply to schoolchildren should not be mandatorily sentenced as provided for in the Bill simply on the basis that Ecstasy might not be regarded to be as harmful as heroin?
Anther point which should not be lost sight of is that the terms of the legislation will not apply retrospectively. When the legislation is enacted it will be clear to anyone in advance of deciding to traffick in drugs to the value of £10,000 or more that a mandatory penalty will apply. If people have given that due consideration and go ahead anyway, then their luck is out. It was in light of these considerations that it was decided the best approach to take on the question of mandatory penalties was to define the offence by reference to the value of the drugs involved.
I emphasise that no one involved in the supply of drugs to the value of £10,000 or more is anything other than a substantial player in the organised trade in illegal drugs and Senator Fitzgerald spelt that out forcefully. I accept a distinction needs to be made between a person involved in the supply of £10,000 worth of cannabis and one involved in the supply of £1 million worth of heroin. The best way to make such a distinction is not through "disapplying" the mandatory ten year penalty to the former; it is to allow even heavier penalties to be imposed on the latter and that will be the legal position.
Currently, a person convicted of a drug trafficking offence can be sentenced up to life imprisonment which I explained earlier and that will remain the position under the new legislation. The fact that we are introducing a ten year mandatory or minimum sentence in this legislation does not obviate the fact that a court will still be empowered, pursuant to the Misuse of Drugs Acts, 1977 and 1984, to impose a sentence of up to life imprisonment. In this way a court will be able to mark the gravity of the offence by applying a sentence of up to life imprisonment, or in the case of drugs with a market value of more than £10,000 applying one of a lesser period of years but, in any case, a minimum period of ten years imprisonment.
Senator Connor was correct when he said this legislation is harsh but I cannot ascertain what precisely he wants put in the Bill for the simple reason that he has not tabled amendments, although he may table some on Report Stage. If his bottom line is that he is against the concept of minimum sentences, then his party is making the same mistake in Opposition as it did in Government——
I am for justice, not just for punishment.
——when this provision was voted down no fewer than three times.
The Minister is making the same mistake in Government as he did in Opposition.
With regard to the possibility of being known as the Minister for Punishment, every appellation known to mankind has been applied to me at this juncture, but it is better to be known as that than as the Minister for Hardship.
It is worse to be known as the Minister for Injustice and that might be applied to the Minister also.
I am disappointed with the Minister's response as I thought he might be forthcoming on the amendment. It is a valuable amendment which would not water down the Minister's message or intention to stamp down on drug trafficking and would underpin it with a rational and flexible approach which is essentially what is required from legislation. The Minister's approach of putting emphasis on the value of drugs is wrong because the price of drugs will change from month to month, year to year and, very often, day to day. It depends, like everything else in the marketplace, on supply and demand. While demand exists, there will always be a supply but at times it will be scarce while at other times the market will be flooded. That is not a good legislative position to take. In a few years time, depending on inflation, £10,000 may not hold the same value.
The Minister would have been better advised if he had adopted the approach of looking at the effect of drugs, particularly on the community in terms of social and economic implications rather than looking at the street value of drugs at a particular time. He could have combined the two but his lack of distinction, good, bad or indifferent, in terms of the type and category of drugs and the effects on the community of the use and abuse of them means he has made the wrong decision and it will come home to haunt him. This is enshrined in the Bill and if he were prepared to accept the rational amendments proposed by us, he could do what he wants in a proper, just and effective fashion and have flexibility with changing circumstances.
The Minister was also wrong when he said, in terms of defining categories of controlled drugs to be prescribed by regulation, if such an approach were taken, it would be essential it be adopted in primary legislation. I do not agree because primary legislation would have no bearing on what is being sought in the amendment. The purpose of the amendment is to provide the flexibility that will be required from time to time depending on medical advice, changing circumstances, the marketplace, the categorisation of drugs and the social implications. Primary legislation will not achieve that and it is important that discretion be left with the Minister. The Minister will exercise discretion on medical or police advice, or the advice of community leaders and the Houses of the Oireachtas.
The Minister would be in no danger of abusing his position if he accepted this amendment and he should not worry about enshrining it in primary legislation. He has made two basic mistakes, first as regards the value of the drugs, second in saying he should do nothing about it now because it would not be proper for a Minister to have such broad ranging powers or that they should be enshrined in legislation.
This legislation will not effect its intended purpose — it will not catch drug barons or big drug traffickers. It will catch the "mules", the victims and the drug addicts, but it is not a weapon in the fight against serious drug abuse and drug trafficking. The legislation will be brought into disrepute as our jails fill up with people who are already victims and are being used by the people with whom the Bill was supposed to deal. Section 5(3)(g) provides that a court may inquire whether, at the time the offence was committed, the person was addicted to one or more controlled drugs. If it is satisfied that the person was addicted, there may be a review at the expiry of not less than one half of the period. The minimum sentence is ten years, so if a review is held and it is found that the person was an addict at the time and that the drugs were for personal use or for a small circle of friends, at least five years will elapse before anything can be done. The prisons will undoubtedly be full of drug addicts on the receiving end of this legislation and the only penalty is a custodial one, a minimum of ten years in prison.
From every point of view it is difficult to see how the Minister can justify this and how the legislation can operate effectively. Having spoken to people from communities affected by the drug problem, particularly heroin, I know they have a poor view of legislation such as this which takes a sledgehammer approach without making distinctions. It does not work and has never worked. The drug problem is complex but drug barons will laugh at this legislation and go merrily on their way. When one "mule" or courier goes to prison it is not hard for them to get another. They will not be caught and they are not even targeted by the Bill, although they are supposed to be. Since the legislation is simply directed at drugs with a street value of over £10,000, it is not directed at those causing damage to the communities, who are the suppliers of hard drugs. The provision is spread too wide and it will ultimately discredit not only this Bill but our whole approach to the problem. Our prisons will be full of drug addicts and there are only limited treatment services within the prisons, but that is another day's work.
The amendment will undo the damage this legislation will do via mandatory sentencing, the lack of distinction between categories of drugs and the simple imposition of criteria for the value of drugs. I appeal to the Minister to accept my amendment because it will give him the flexibility to cope with the fall-out from the rigid approach he has adopted.
I am sorry the Minister has left. He stated that my party and I did not know what we wanted in this legislation. What we want is that the Bill should be concerned with justice. The Minister is playing to a tabloid gallery which demands heavy sentences, etc., but what we — and above all, the Minister for Justice, Equality and Law Reform — must be concerned with is the administration of justice and ensuring that all laws are just to everyone to whom they apply, be they the accused or anyone else. The Minister should not lose sight of this but, as I said, I think he will be regarded more as a Minister for Punishment than a Minister for Justice.
The ten year sentence is not mandatory; it is presumptive — it is qualified by section 5(3)(c) — the Minister nonetheless trumpets that it is mandatory and that it proves he is taking a hard line. If the minimum value of the drugs specified for this purpose was much higher, or if they were specified by weight or kind, as any sane Minister would do, there might be some justification for a ten year sentence. I said that this is a heavy sentence and the Court of Criminal Appeal has also indicated on many occasions that it is severe. It is certainly disproportionate as a minimum sentence for possession of £10,000 worth of cannabis. Five years would be much more appropriate as a minimum sentence and we should remember that, under this Bill, a court would be fully entitled to impose any sentence up to life imprisonment if a large quantity of drugs is involved and if there are other aggravating circumstances.
We see this mandatory ten year sentence for an offence based on a notional money value of the drug with no reference to weight, kind or purity, as seriously flawed. When these cases come to trial, as many no doubt will, it will be a nightmare for the DPP to decide whether the value of the drugs is greater than £10,000 because the directions in the Bill are so vague. When the cases reach court and the State must prove the drugs are worth more than £10,000, the defence lawyers will argue there is no specification in the Bill as regards the type, weight or purity of the drug, it is simply a monetary or street value. That is why we are trying, in the name of justice, to make good law which will catch these people. As Senator Costello said, this will not reach the big barons and pushers because they will make their parcels of drugs smaller so that they are worth less than £10,000. If we had something more specific related to the true value of the drug in terms of its purity, weight and type, this side of the House would have no difficulty supporting the Minister. That is why we are appealing to him. Perhaps the Minister of State will be more reasonable and will accept the amendment.
We have looked at this in great detail in the Department and it is clear what is at stake. It is extraordinary that Senators are talking about balance. Senator Connor referred to five years as distinct from ten years. These people are major players. It is important to emphasise that anyone involved in the supply of £10,000 worth of drugs is a major player in the drugs scene.
What constitutes £10,000 worth of drugs?
That is the position in terms of the Bill.
From what Senator Costello is saying he is opposed to the approach being taken in section 5. The Minister is determined to stick with these proposals. We want to underline that supplying or possessing drugs with a value of £10,000 means you are no ordinary drug user. There is no prospect of Senator Costello's amendment being accepted, even on Report Stage. We are very clear on this matter.
Before he left the House the Minister's said he is confused about what Senator Connor is trying bring forward and what Fine Gael wants. If the Senator has a clear amendment he wishes to table he should do so, but he has not tabled one here. The Senator still has the opportunity to table an amendment on Report Stage.
The Minister has gone to great detail explaining why he came to the conclusion that there should be no distinction between types of drug. He spoke clearly in terms of those trading in illegal drugs. They are part of an organised criminal enterprise and the Minister has laid out that he believes that supplying this amount of drugs means you are a major player in the drugs market and not just an ordinary drug user. The penalty is there and if that means the Minister is called the Minister for Punishment, then so be it. The people in Senator Costello's constituency, the people we are all trying to help, will thank Minister O'Donoghue even if he does go down in history as the Minister for Punishment.
The Minister remarked that I am opposed to the approach here. I am not opposed to the legislation; I am opposed to the manner in which the Minister is taking this section of the legislation. We are all anxious to stamp out drugs. I have experience of an area with a major drug problem. We want to see the legislation targeted but I cannot see why the Minister would go against the approach enunciated in the Misuse of Drugs Act, providing a distinction between hard and soft drugs, and the recommendations of the Law Reform Commission. The Minister has not even bothered to explain why he decided to take a stance against those firm positions. My amendment would assist the Minister in the work he is attempting to do.
- Caffrey, Ernie.
- Coghlan, Paul.
- Connor, John.
- Costello, Joe.
- Cregan, Denis (Dino).
- Doyle, Avril.
- Doyle, Joe.
- Hayes, Tom.
- Manning, Maurice.
- McDonagh, Jarlath.
- Norris, David.
- O'Dowd, Fergus.
- Ridge, Thére se.
- Ross, Shane.
- Ryan, Brendan.
- Bohan, Eddie.
- Bonner, Enda.
- Callanan, Peter.
- Cassidy, Donie.
- Chambers, Frank.
- Cox, Margaret.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Liam.
- Fitzgerald, Tom.
- Fitzpatrick, Dermot.
- Gibbons, Jim.
- Glynn, Camillus.
- Hayes, Maurice.
- Keogh, Helen.
- Kett, Tony.
- Kiely, Dan.
- Kiely, Rory.
- Leonard, Ann.
- Lydon, Don.
- Mooney, Paschal.
- Moylan, Pat.
- O'Donovan, Denis.
- Ormonde, Ann.
- Quill, Mairín.
- Quinn, Feargal.
- Walsh, Jim.
Section 5(3E) refers to the earning of remission of sentence through industry and good conduct. We spoke earlier about the effects of this legislation arising from the minimum mandatory ten year sentence and other sentences in excess of that. The Minister did not seem to envisage any problem with prison places as he said that, by the time the effects of this legislation would seep through the system, the prison programme would ensure that sufficient prison places would be available. We know that sufficient places do not exist at present and that there is, in fact, a 50 per cent shortage of places. The effect of that shortage is that prisoners are doubling and trebling up in cells which were built 150 years ago and intended for only one person. Cells were built with minimum space and maximum supervision in mind. The Minister is proceeding from a bad starting point.
In comparison with the EU and Britain, Ireland has a very low remission rate at 25 per cent. Britain has a one-third remission rate, Northern Ireland has a 50 per cent rate and the rest of Europe generally follows the British model. Would the Minister consider — in terms of rehabilitation as well as prison places — looking afresh at the remission which can be earned and bringing the system more into line with that which operates in other countries? Perhaps the remission rate could be set at one third rather than at a quarter. If that were the case, there would be an automatic 8.33 per cent improvement in the number of prison places available.
The sentences being imposed through this Bill are custodial. We are not talking about a range of rehabilitative or sentencing models. This will undoubtedly be reflected very quickly in the profile of the prison population because of the absence of a different range of models from which the Judiciary can choose. If we did put a premium on industry, good conduct and rehabilitation, we could at least move towards improving the remission rate and that would be worthwhile. The very fact that there is an absence of other sentencing options in this legislation makes it difficult to emphasise rehabilitation and good conduct or promote prison reform. Perhaps the Minister could take that issue on board.
Given the seriousness of the crime concerned it is necessary to impose custodial sentences through this Bill. With regard to the difference in remission rates between Ireland and the UK, sentences in the UK seem to be longer on average. The drug issue is very serious and it is very difficult to speak about its seriousness on the one hand while speaking about improving remission rates on the other. I think Senator Costello was referring to improving remission rates across the board and not particularly in relation to the serious crimes dealt with by this Bill. It is necessary to impose custodial sentences on crimes relating to drugs. While I do not think it is appropriate to talk about remission in this context, I will take the general point on board.
Amendments Nos. 3 and 5 are related and may be discussed together by agreement. Is that agreed? Agreed.
A key section of the Bill, which deals with the abolition of preliminary examinations, requires the substitution in section 9 of a new section 4A in the 1967 Act. As the Bill stands, that section provides that where an accused person is before the District Court charged with an indictable offence, the court shall send the accused forward for trial to the court before which the person is to stand trial. In practice, this would mean sending the person forward to the Circuit Court, the Central Criminal Court or the Special Criminal Court. It will be noted that the court will do this without having conducted any preliminary examination. However, the new section 4A provides that a person shall not be sent forward for trial in the following circumstances, namely, where a case is being tried summarily, where an accused pleads guilty or where an accused is unfit to plead.
Amendment No. 5 relates to the consent of the DPP and substitutes a new section 13(2) to the Criminal Justice Act, 1967. The net effect of this change is that an accused shall not be sent forward for sentencing under that section without the consent of the DPP or the Attorney General. This could be seen as a corollary to the provision that the person cannot be sent forward for trial without the consent of the DPP. It would deal in practice with a situation where the DPP did not wish particular charges to be dealt with by the court because he wished to proffer more serious charges. I accept these provisions are highly technical but I believe the proposed changes will improve the Bill and I hope the House will support the amendments.
There were some criticisms on Second Stage of the provisions of section 9 of the Bill which proposes to insert a new section 4J in the Criminal Procedures Act, 1967, dealing with the question of proceedings not to be published or broadcast. Some of the comments then could be taken to suggest that what is at issue here is the imposition of a new draconian prohibition on the reporting of court proceedings but that is not the case. All that is being proposed is to include in the Bill a provision which mirrors virtually exactly the existing section 17 of the Criminal Procedures Act which deals with the reporting of preliminary hearings. The new section deals with the reporting of the proceedings which will take place under the new procedures.
I trust that explanation will allay any fears which have arisen in this regard. In any event, one of the effects of amendment No. 4 will be to make it clear that the new section 4J will not affect any power conferred on a court by any other enactment to make an order authorising the publication or broadcast of information relating to the proceedings. On the other hand, there are other statutory provisions which impose more severe restrictions on the publication or broadcast of information relating to court proceedings, for example, sections 7 and 8 of the Criminal Law (Rape) Act, 1981, preserved the anonymity of rape victims and persons accused of that offence. A further purpose of this amendment is to remove any doubt that might arise in relation to the operation of the provisions in those other Acts. Subsection (4)(a) of the new section 4J will state that any Act which imposes further restrictions on the extent to which information may be published or broadcast will not be affected by the provisions of section 4J. There is nothing sinister afoot in the proposed provisions and I hope the House can accept the amendment as an improvement to the proposed new section 4J.
There is a correction to section 19 of the Bill which does not require a formal amendment. I would draw the attention of Senators to a printing mistake in the Bill. On page 21, line 28, the number 1 appears in brackets, indicating subsection (1) of section 19. However, as there is no other subsection in that section the reference to (1) should be removed.
I ask the Clerk of the Seanad to exercise her powers under your direction, in accordance with Standing Order 103 of the Standing Orders of Seanad Éireann relative to Public Business, to make a formal correction to take out that reference to subsection (1) in section 19.
Is the amendment agreed? Agreed.
This is purely a technical amendment to insert the word "and", which had been omitted from the Bill as printed.
This amendment arises in the context of provisions of Part IV of the Bill which essentially introduce automatic court inquiries in the case of a person convicted of a drug trafficking offence. The amendment proposes to add a provision to section 11 as a counterbalance to the proposed criminal sanctions to the effect that any information given to the court under this section will not be admissible in any proceedings from an offence. This is to ensure that the amended section 11 is not left open to criticism that it imposes an obligation of self incrimination on an offender. I believe this amendment will strengthen the provisions of Part IV.
Amendments Nos. 8 and 9 are related and may be discussed together by agreement.
I move amendment No. 8:
In page 25, subsection (1), lines 5 and 6, to delete ", if it considers it appropriate to do so,".
The amendment proposes that we take into consideration guilty pleas and that they should not be excluded, as seems possible in this situation.
Section 28(1) reads:
In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account—
(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and
(b) the circumstances in which this indication was given.
My amendment proposes to delete the words "if it considers it appropriate to do so" on the basis that there is a time honoured practice that a guilty plea is always taken into consideration along with the stage in the proceedings at which an intention to plead guilty is indicated. It is not a case of whether the court considers it appropriate to take a guilty plea into account; this should be enshrined in law as a right and the circumstances should be taken into consideration as well.
It is strange that there should be any consideration of appropriateness in this respect. A guilty plea saves the court much time and normally results in a sentence being reduced. It is in the interests of justice that the court should at all times consider a guilty plea as well as the stage at which such a plea is made along with the circumstances and context. It is a simple amendment which would ensure that a court would take these matters into consideration. It also ensures that both the court's time and taxpayers' money will be saved. It is in line with existing practice, which is accepted by members of the Judiciary in terms of court procedures. The Legislature is anxious to ensure that as many cases as possible can be fasttracked through the courts, particularly drug related cases.
I understand the nature of Senator Costello's amendment, but I do not feel it should be accepted. The section gives a certain discretion to the courts, which is important. We should take into consideration Senator Costello's point that the amendment would save money and effort, as well as the time both of the courts and the Garda Síochána in trying to prove cases. However, each case must stand or fall on its merits. We cannot agree that just because somebody pleads guilty per se, there should be automatic sentence reductions because that will depend on the circumstances, for example, it could be the person's second or third conviction. I am certain that when counsel argues on behalf of the accused in a case where there is a guilty plea, all these circumstances will be put before the court which, in its humanity and discretion, will consider each case on its merits. Even though I see much merit in what Senator Costello said, there would be a greater danger in accepting his amendment that injustices would occur in the long term. It is prudent to allow the discretion of the court which the legislation covers both significantly and appropriately. The matter should be left in the hands of the court while taking all aspects of individual cases into consideration. Every case differs and consequently I feel that, while Senator Costello is sincere, to delete these words might be a step in the wrong direction.
This subsection in the Bill overrules a decision of the Supreme Court in the Director of Public Prosecutions v G, 1993, that it is wrong in principle to impose the maximum sentence in response to a guilty plea. One High Court judge, Mr. Justice Carney, has repeatedly criticised this ruling and the Minister appears to have taken this criticism on board. What the Minister has blithely ignored, however, are the important justifications for granting mitigation in response to a guilty plea. Guilty pleas save a great deal of court time and they will often be a strong indication of remorse. Most important of all, however, a guilty plea saves the victim from the trauma of having to give evidence and undergo cross examination. This is very important in rape and sexual assault cases, as the Supreme Court emphasised in the leading case on rape sentence, DPP v Tiernan, back in 1988.
In cases involving sexual and other forms of violence, it is primarily in the interests of the victim that a reduction is given for a guilty plea. The Minister is showing very scant consideration of the needs of victims who are at their most vulnerable in a criminal trial. If the section is enacted as it is now written it will prove to be a strong disincentive to defendants to plead guilty as there is no longer any guarantee that they will be rewarded with a reduction in sentence.
There may be some exceptional circumstances when an offender is deemed to be so dangerous to the public that he or she should be given an indeterminate life sentence, or other maximum sentence, notwithstanding the fact that he or she has pleaded guilty. This should only happen, however, in truly exceptional cases when both the circumstances of the offence and those of the offender are specifically identified by the sentencing judge as meriting such a course of action. This is what Senator Costello's amendment will achieve.
The inclusion of the words "if it considers it appropriate to do so" is considered desirable so as not to make it an absolute requirement on all courts to take such matters into account in relation to all offences. This is for the very practical reason that the provision relates to all offences. For example, it would hardly be necessary or desirable for a court to look into these matters as regards routine road traffic offences. There is in existence case law in relation to when it is appropriate for the courts to take guilty pleas into account. While the proposed section places aspects of that law on a statutory basis, I do not believe it will supplant that case law to the extent that the law already deals with when it is appropriate to take into account guilty pleas. In that sense, the point of the amendment is already met under our law.
As I have explained, the amendment would require a court to take into account guilty pleas and, in particular, the circumstances in which they were made in the most routine of cases, and there would clearly be no benefit to be gained from that. On the contrary, it might needlessly clog up the operation of the courts and, in the circumstances, I would not be disposed to accepting amendment No. 8.
Amendment No. 9 in the name of Senator Costello relates to section 28(2), which, for avoidance of doubt, makes it clear that a court is not precluded from passing the maximum sentence notwithstanding a guilty plea where it is satisfied that the circumstances of the offence warrant the maximum sentence.
The effect of the amendment would be to provide that where there is a guilty plea, the maximum penalty could only be applied in exceptional circumstances. That probably reflects case law as it stands and I am not sure that the amendment is necessary. I understand the thinking behind it and I ask Senator Costello if he would allow me further time to reflect on the matter addressed in amendment No. 9 between now and Report Stage.
I still think the Minister should reconsider both amendments Nos. 8 and 9. I am delighted to hear that she will have a look at amendment No. 9 — I presume it will be a positive fresh look at the matter.
If there is no indication that at the stage of the proceedings in which a guilty plea is entered and the circumstances of it there will be any effect on the sentence, obviously nobody will enter a guilty plea. The legislation needs to indicate more strongly that the time at which a guilty plea is entered and the circumstances in which it is entered will have a bearing on the outcome of the sentence, as it does largely in legislation to date and in practice.
There is no doubt it would have an enormous effect on the operation of the courts in addition to it undoubtedly saving victims from the undue and unnecessary emotional and psychological hardship and suffering to which Senator Connor referred. From a practical point of view, it would seem that amendment No. 8 would have a most beneficial effect on the operation of the courts and on the effect on persons involved in a trial.
Section 28(2) states that anything in section 28(1) will "not preclude a court from passing the maximum sentence prescribed by law" so there is a double take on that. Having taken those into consideration, the court can still impose the maximum sentence. That is included in the legislation. Therefore, the Minister need not worry that anybody will get off lightly if she accepts amendment No. 8.
Amendment No. 9 refers to a practice which largely operates at present. I am satisfied that there is a need to state "the exceptional circumstances of the offence", and the Minister said she will consider that further.
We will look at amendments Nos. 8 and 9 again although I would be more optimistic about amendment No. 9.
With regard to the judgment to which Senator Connor referred, this was discussed in detail in the Law Reform Commission report on sentencing. The point is made clear that it is not required by law always to reduce the sentence where there is a guilty plea. It is implicit in what the Law Reform Commission said that it would regard the provision as consistent with the Supreme Court judgment to which Senator Connor referred.
In any event, we will look at adding the word "exceptional" before Report Stage.
I want to make a correction to the title to Part VI of the Bill which does not require a formal amendment. Arising out of the House's acceptance of amendments Nos. 10, 11, 12, 13 and 14, the title to Part VI of the Bill, which currently refers only to extradition, will be changed to refer to extradition and other matters. This change, which does not require a formal amendment, will be taken into account when the Bill, as amended on Committee Stage, is printed.
When is it proposed to take Report Stage?
On Thursday week.