Special Committee Misuse of Drugs Bill, 1973 díospóireacht -
Wednesday, 12 May 1976

SECTION 23.

Dr. Byrne

I move amendment No. 67:

In page 15, subsection (1), line 50, after " prescription " to insert " or order form or equivalent from a medical practitioner, dentist, veterinary surgeon, chemist, druggist, hospital, health board, pharmaceutical production or distribution firm ".

Under this amendment section 23 (1) will read as follows:

A member of the Garda Síochána who has reasonable grounds for suspecting either that a person is in possession in contravention of this Act of a controlled drug, a forged prescription or a duly issued prescription or order form or equivalent from a medical practitioner, dentist, veterinary surgeon, chemist, druggist, hospital, health board, pharmaceutical production or distribution firm, which has been wrongfully altered or that a person is in possession of a duly issued prescription which will be used by him to deceive, may without warrant——

The reason for tabling this amendment is to clarify and cover in the legislation the other types of order forms which can be used. It need not necessarily be a simple prescription. It may be that the Minister is quite happy that a prescription covers all types of order forms but a prescription to me would mean the actual name of the drug, the instructions on how to take that drug and the quantity to be supplied. It would, generally speaking, be related entirely to one particular individual.

Will the Minister say if he is happy that the word " prescription " covers " order form or equivalent " from a medical practitioner, dentist, veterinary surgeon? A chemist or druggist cannot write a prescription. A hospital can authorise a person to collect X quantity of drugs from a pharmaceutical firm or a wholesale chemist to bring to the hospital. It is purely on a technical basis that I move this amendment.

Mr. Corish

The Deputy wants to expand the documentation and I must disagree with him on this. I want to cut out " prescription " altogether. The medical profession expressed concern about the powers of search. They represented to me that it could create problems for them. This view was expressed by some of those who spoke on Second Reading. It does not include powers to search premises, including doctors' residences. It does provide for the search of persons, vehicles, vessels and aircraft. That would include a doctor's car.

The intention in this section is a search for drugs rather than documentation. On consideration I think that " prescription " as such should not be sought in such a way that it would be possible to search a doctor's car. In searching for prescriptions or some of the documentation mentioned by Deputy Byrne there would be the possibility that access could be had to medical records. Therefore, I would confine the search to drugs only rather than to documents such as prescriptions or the other forms that have been included in the Deputy's amendment.

I propose that the words " a forged prescription or duly issued prescription " be deleted and we would be left with the power of the Garda Síochána to search for drugs rather than for records.

Dr. Byrne

Is the Minister proposing that the section would read from line 51 as follows:

. . . in contravention of this Act of a controlled drug, may without warrant——

Mr. Haughey

He is doing exactly the opposite. The Deputy wants it to be extended. He cannot accept the Minister's proposal.

Dr. Byrne

Was the Minister going to substitute the word " document " for " prescription "?

Mr. Haughey

No. He is taking it all out.

Mr. Corish

The section would give the Garda power to look for drugs only.

Dr. Byrne

I am very much concerned about forged prescriptions which is included. If the Minister is going to withdraw that I would like a discussion on that part. I would be very interested to see that this would extend to cover the delivery man. He may be sent out to collect 10,000 barbiturates, he may put on an extra 0 and get 100,000. That massive type of forgery can occur. It often happens nowadays when a patient goes into a chemist that the chemist rings up the wholesale drug company and they send out the order in the delivery van. If that order is altered or forged it should be a crime under this legislation. If the delivery man changes the 1,000 to 10,000 he collects an extra 9,000 which he can then distribute. I think if a person forges a medical document or order form it should be an offence under this legislation. It might be that little bit weaker if it did not have the provisions for prosecuting a person who is found in possession of a forged prescription. That person should be treated the same as a person who is found to have illegal possession of a controlled drug.

Mr. Corish

Forged prescriptions are dealt with in section 18.

Chairman

The proposed amendment would be circulated on Report Stage.

Dr. Byrne

Section 18 (1) states:

A person shall not forge a document purporting to be a prescription. . . .

If he would use the word " document " here I would be much happier. " A forged document " would satisfy me.

Mr. Haughey

I am opposing the section as a whole so it is all the same to me what word is included.

Chairman

Will the Minister for Health circulate that amendment on Report Stage?

Dr. Byrne

My first reaction would be that I think it would dilute the power of this section. The section is essential if the legislation is to be effective. I would rather the Minister had a look at my amendment to see if it covers all possible documents.

Mr. Corish

The Deputy has covered all possible documents but I do not want to include them at all because it would impinge on the confidentiality of medical records.

Mr. Haughey

We are dealing here with the powers of the Garda to search people and places without a warrant. The Minister is now proposing to restrict that power of search without a warrant to drugs only.

Dr. Byrne

" A forged prescription " is the same.

Mr. Wyse

The Deputy is using the word " document ".

Chairman

Does the Minister wish to formally propose it now or wait until Report Stage?

Mr. Corish

I will wait until Report Stage. I am telling the Committee what I propose to do, to delete the words " forged prescription or a duly issued prescription."

Mr. Haughey

Delete all words after " drug " in line 49 down to " deceive " in line 52.

Mr. Corish

Yes. There are some consequential amendments to be made in the section. " Prescription " has to be cut out of subsection (b) and " drug " has to be included in subsection (c).

Chairman

We will leave it then until Report Stage.

Mr. Haughey

If there are consequential amendments we will leave it to Report Stage.

Dr. Byrne

What is the thinking behind this? Why does the Minister want to delete " forged prescription "? Does he not think that a person who has a forged prescription should be searched? That should apply also if he has a prescription that is wrongfully altered and maybe used to deceive. Does he not think that they should be penalised?

Mr. Corish

That surely can be checked between the doctor and the pharmacist.

Dr. Byrne

I would not say that is practical at all. If a person is found by a member of the Garda Drug Squad with a forged prescription he should be penalised under this Bill.

Mr. F. O'Brien

Is that not dealt with under section 18?

Mr. Haughey

This is searching without warrants.

Dr. Byrne

Section 18 only refers to false documents, a document purporting to be a prescription. Perhaps my amendment might be more suitable on that section, but I want to have all documents which are not prescriptions included, or else an undertaking from the Minister that he is satisfied that the word " prescription " covers all the documents I have mentioned in the amendment. It would be wrong to assume that the only document that can be forged from the point of view of deceiving is an actual medical prescription. If I were to try and deceive it would be on the order form, not on the simple prescription.

Mr. Haughey

In view of the Minister's approach to the section it is obvious that Deputy Byrne's amendment has no hope of getting through the Committee, so let us dispense with it.

Dr. Byrne

That is very high-handed.

Mr. Corish

Does the Deputy feel that section 18 is sufficient? What I want to do is to provide for warrant in respect of a search for drugs and drugs only and no documents.

Dr. Byrne

Would the Minister have a look at section 18 and see whether a new subsection could be brought in on Report Stage, say, subsection (5) where these documents could be included? Even if the section was to say that a person shall not forge a document purporting to be a prescription, or order form or eqivalent form. It is not asking a lot to do that but it would cover all these order forms. That would be the practical way.

Mr. Corish

I will have a look at section 18 again but I have to insist on taking out " prescription " in section 23. Will the Deputy withdraw his amendment?

Dr. Byrne

I would be happy to withdraw my amendment if the Minister will look at the prospect of rephrasing section 18.

Mr. Haughey

We have dealt with section 18.

Dr. Byrne

The Minister is entitled to bring in an amendment on Report Stage.

Chairman

We cannot go back on that section.

Dr. Byrne

Would the Minister mind if I tabled a similar amendment on Report Stage?

Mr. Corish

The Deputy cannot go back and table an amendment but, surely, he can refer to the other section.

Mr. Haughey

The Minister cannot give undertakings now in retrospect. He can put down an amendment on Report Stage.

Amendment, by leave, withdrawn.

Mr. Haughey

I move amendment No. 68:

In page 16, between lines 12 and 13, to insert the following subsection:—

" (2) A member of the Garda Síochána shall not exercise a power conferred on him by this section unless he has been furnished with an authorisation in writing by an officer of the Garda Síochána (not below the rank of Inspector) to exercise such power and if when claiming to exercise such power he is required to produce the said authorisation the power shall not be exercisable by him except on production of the authorisation."

This is purely for the purpose of having it discussed.

Chairman

Does the Minister have any comment to make?

Mr. Corish

In this amendment, the Deputy does not want searches to be undertaken by a member of the Garda Síochána; he wants them authorised by an inspector or some other high-ranking member of the force. I presume the Deputy is concerned about the possible abuse of the power of the Garda Síochána. There are good reasons why this amendment should not be accepted. The section, as it stands, provides for a stop and search only where the Garda have—and this condition is included in a lot of legislation—reasonable grounds for suspicion. This means that if a prosecution is brought before the courts the Garda will have to outline these " reasonable grounds ". Furthermore, they will have to justify them. This in itself will act as a deterrent to possible abuse of search by the Garda. I do not think it will be abused because they have this power in other legislation.

This section is concerned with the search for drugs. I emphasise the fact that drugs are a commodity which can be moved quickly and easily. If the Act is to be enforced by the Garda the Garda must also be allowed to act quickly. Getting an authorisation from a Garda inspector could result in a long delay in many parts of the country, particularly in rural areas. Meanwhile, the drug consignment, or the person involved, might have disappeared. Therefore I believe we should trust the Garda not to abuse this power. There is a similar provision for the police in Great Britain contained in the Abuse of Drugs Act, 1971. We had this before in respect of searches and search warrants and it was not looked upon with great favour but to have to wait for authorisation from an inspector, superintendent or chief superintendent would involve great risks of either the drugs disappearing or the person having absconded. The Garda need this power and therefore I do not think I should accept this amendment.

Mr. Haughey

I am not totally in favour of this amendment though if my proposal that the section be deleted is not accepted by the Committee I would certainly settle for Deputy O'Connell's amendment as second best.

I spoke at some length on this matter on section 22 but we are coming up against it much more seriously now in section 23. We must ask ourselves whether in dealing with this social evil, the misuse of drugs, we are going to create a legal monster. Are we going to abolish the freedom of the individual? We are dealing here now with the question of every garda in the country being entitled, without a warrant, to go into any person's house, at any time, to search that house. Admittedly the section speaks of the Garda having reasonable grounds for suspecting. That is merely a thought process, something that can take place in the mind of the Garda. That is no safeguard whatsoever.

I ask the Committee seriously to ask ourselves: where we are going? We are all anxious to deal with different abuses as they manifest themselves in different areas but in dealing with one abuse after another are we going to finish up with a situation where, in fact, the liberty of the citizen no longer exists? Under every Finance Act the Revenue Commissioners are taking increased powers. So far as I can gather now from friends in the accountancy and legal professions, the Revenue Commissioners can have inspectors going into any premises to carry out all sorts of investigations and searches at any time they wish. Now we are going to add the Garda to that long list. We will eventually arrive at the situation where a person's home is completely open to the authorities. Some journal recently directed attention to the creeping process that is going on in this regard.

Mr. Corish

There is nothing in this which would empower gardaí to search a house without warrant. The section refers to persons, vehicles, vessels or aircraft. There is no question of the invasion of privacy without a warrant.

Dr. Byrne

Can the Garda Síochána not search a flat?

Mr. Corish

No. They must have a warrant to do that from the district justice or a peace commissioner.

Dr. Byrne

It is very easy to get such warrant.

Mr. Haughey

I must recognise that that is so. I thought that the powers under section 23 were related to section 19 in this regard and that the gardaí could, without a warrant, search any premises.

Mr. Corish

Section 26 refers to a search warrant for a premises, a house.

Mr. Haughey

It deals with the searching of persons and I want to direct the Minister's attention to the view of a group which has given a lot of thought to this matter. They have furnished us with their views: " Section 23 deals with the powers of the Garda Síochána to search persons, vehicles, vessels or aircraft. Paragraph 3 (2) of the report of the Working Party on Drug Abuse recognises that the new legislation would give more flexible power to the Garda for dealing with drug offences generally, particularly in regard to powers of search and arrest. They go on to say:

We consider that there should be no undue interference with the freedom of the individual as far as any changes in the procedures for making search and arrest are contemplated.

While we also recognise the need for more flexible powers for the gardaí, we are concerned about an escalation of the antagonism and suspicion between the gardaí and certain groups of young people. Experience in other countries has highlighted the problems this can cause. We would seriously question the need for such sweeping powers of search and arrest as outlined in the Bill. We would also suggest that where sufficient evidence exists to justify search and arrest that such operations should be confined to members of the drugs squad.

I was referring to the gradual erosion of the freedom of the individual and I said that in other legislation the authorities can go into a person's house or premises and carry out all sorts of inspections, searches and so on. In this connection the Minister rightly points out that this particular section deals only with vehicles, vessels or aircraft and also to search the person. I believe this is going too far. In any case where a garda wishes to search a vehicle, a vessel or an aircraft, it should be possible for him to get a warrant and the same should apply to the searching of persons.

I am not happy with the section at all. If the Committee agree that some section should be contained in the Bill then at least every single member of the Garda Síochána should not have these sweeping powers. They should be restricted to certain sectors of the Garda or, alternatively, as Deputy O'Connell proposes, they should be exercisable only by a particular guard when he is authorised by a high-ranking, competent officer. In other words, Deputy O'Connell wants to substitute the authority of a high-ranking officer of the Garda Síochána for a warrant which would normally be issued by a district justice. Perhaps we should adjourn at this stage.

Chairman

We agreed to adjourn at 5.30 p.m. but perhaps the Minister wishes to reply?

Dr. Byrne

Either allow a debate or we adjourn.

Chairman

We could ask the Minister to respond.

Mr. Corish

I could not agree with Deputy Haughey that the section is undesirable or unnecessary. At present the Garda have no specific power to search for drugs but they have power to do other things, such as to search for stolen goods or firearms. If we are serious in our efforts to control the abuse of drugs we would have to give the Garda Síochána that power. They would need it. If the Garda suspected that a car had a consignment of controlled drugs, held illegally, can anyone visualise the situation wherein a guard who might suspect and have good grounds for his suspicion—perhaps have the evidence of his own eyes that there was such a consignment—should then have to look for an inspector of the Gárda Síochána or a superintendent or a chief superintendent for an authorisation to search? How long would that take him?

The British Parliament have such power in the Misuse of Drugs Act, 1971, and it was because they had no power to search for drugs that it was included in section 23 of that Act. I do not believe that one can tackle the drug problem realistically unless the Garda are given power to stop and search. That is in respect of vehicles, aircraft and vessels. I should like to emphasise that it is not in respect of premises because for that a warrant, according to my proposals here, must be obtained from a district justice or peace commissioner. At present this could be substantiated by people who know that in Dublin the Drug Squad have to invoke certain other Acts of Parliament in order to stop and search. I am informed that they have to invoke the Dublin Police Act, 1842, which enables them to stop and search for suspected stolen or unlawfully obtained goods. They have no power to look for drugs.

Mr. Briscoe

But if they find drugs?

Mr. Corish

They have no power to search for drugs.

Mr. Briscoe

But if they happen to find them in the search surely then they can bring people in for questioning?

Mr. Corish

If they find them, yes, but if they have reasonable grounds for suspecting that there are drugs in a car they have no power to stop and search the car, unless this section is passed.

Dr. Byrne

It is only a rationalisation.

Mr. Corish

The Garda are embarrassed by reason of the fact that they have to do this sort of thing. They have no explicit powers. The power of search this section gives to the Garda is the only way I believe the Garda can be given power to search for drugs. They need this power if the drug problem is to be tackled efficiently.

The Committee adjourned at 5.40 p.m. until 11 a.m. on Tuesday, 25th May, 1976.