The Misuse of Drugs Acts, 1977 and 1984 and the Regulations made thereunder are the main laws regulating drugs in Ireland. They include controls relating to cultivation, licensing, possession, administration, supply, record-keeping, prescription-writing, destruction and safe custody. They also establish the offences and penalties.
The Misuse of Drugs Act, 1977 (Controlled Drugs) Declaration Order, 1987 extend the list of substances, products and preparations to be controlled for the purposes of the Misuse of Drugs Act, 1977.
In 1984 the Criminal Justice Act, 1984 widened the scope of the criminal law and procedures to deal more effectively with serious crime, including serious offences under the Misuse of Drugs Acts.
In November 1993 a new text was introduced to control precursors and essential chemicals, the Misuse of Drugs (Scheduled Substances) Regulations, 1993. With these acts Ireland meets with the obligations relevant to the control of precursors, under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, and under EC Directives 92/109 and EC Regulation 3677/90. The Regulations control production, supply, importation, exportation and possession of the precursors substances.
In 1994 the Criminal Justice Act, 1994 provided for the seizure and confiscation of assets derived from the proceeds of drug trafficking and other offences. It contains provisions related to money laundering and allows for international co-operation in respect of certain criminal law enforcement procedures, the forfeiture of property used in the commission of crime, and related matters. The Criminal Justice (Drug Trafficking) Act, 1996 permits the detention of a person suspected of having committed a drug trafficking offence for up to a maximum of seven days. The Misuse of Drugs Regulations, 1988 sets out the arrangement to facilitate the licence control over the lawful production, supply, importation and exportation of the drugs to which the Misuse of Drugs Acts 1977 and 1984, apply.
The Criminal Justice Act, 1999 amends the Misuse of Drugs Act, 1977 to provide for a new drug related offence. The new section (15A) creates a new offence related to the possession of drugs, with a value of IR£10 000/ €12 700 or more, for the purpose of sale or supply. A person found guilty of such an offence may be imprisoned for up to life and be subject to an unlimited fine. The Act also provides for a mandatory minimum sentence of ten years in prison. However, the mandaory minimum sentence shall not apply where the court is satisfied that there are exceptional and specific circumstances which would make it unjust in all the circumstances to impose the minimum ten year sentence. In addition, where it is found that addiction was a substantial factor leading to the commission of the offence, the sentence may be reviewed after half of the mandatory period, at which time the court may suspend the remainder of the sentence on any condition it sees fit.
In 2000 new regulations (Customs-free Airport (Extension of Laws) Regulations, 2000) were introduced to extend drug controls under the Misuse of Drugs Acts, 1977 and 1984, and the Irish Medicines Board Act, 1995, to include the Customs free area at Shannon airport. This instrument extends the import/export controls under the Misuse of Drugs Acts, 1977 and 1984 to this area. It also allows Irish Medicines Board to inspect any company within the customs free area at the Customs Free Airport.
Controlled substances
There are five schedules (lists) of drugs in the national legislation. These lists have been drawn up on the basis of the nature of the controls required and the usefulness of the drugs. For example those in Schedule I are subject to very strict control and have little or no use in medicine or industry. Schedule I, for example, includes Cannabis, LSD, Mescaline, Opium; II. e.g. Cocaine Heroin, Methadone, Morphine; III and IV. Other psychotropic substances; V. Specific preparations.
Drug use and possession
Drug use, as such, is not a specific crime under Irish law except for certain activities relating to prepared opium, which is opium specifically prepared for smoking. In fact only the use of prepared opium, the frequenting of premises used for the use of prepared opium and the possession of utensils used for smoking prepared opium are prohibited.
Possession of any controlled drug, without due authorisation, is an offence under Section 3 of the Misuse of Drugs Act 1977. The legislation makes a distinction between possession for personal use and possession for sale or supply. Penalties for possession depend on the type of the substance (cannabis or other drugs) and on the penal proceedings i.e. whether a summary conviction or a conviction on indictment. Penalties for unlawful possession for the purpose of sale or supply range from imprisonment for up to 1 year and/or a fine on summary conviction, or up to imprisonment for life and or/an unlimited fine on conviction on indictment.
Possession of cannabis and cannabis resin is considered in a different way to other drugs. Possession of cannabis or cannabis resin for personal use is punishable by a fine on first or second conviction. From a third offence onwards, possession for personal use of cannabis or cannabis resin incurs a fine and/or a term of imprisonment up to 1 year, on summary conviction and imprisonment for up to 3 years and/or a fine on conviction on indictment. Possession in any other case incurs a penalty of imprisonment for up to 1 year and/or a fine on summary conviction and up to 7 years imprisonment on conviction on indictment.
Trafficking and drug related crime
As regards drug trafficking, the law establishes different penalties according to the type of offender, the type of drugs and the quantity. Possession for sale or supply attracts penalties up to life imprisonment. See also the above reference to Section 15(A) of Misuse of Drugs Act, 1977, as inserted by Part II of the Criminal Justice Act, 1999, in relation to possession of drugs for sale or supply with a value of IR£10 000/ €12 700 or more. Other relevant legislation includes the Justice Act, 1994 (criminalising money laundering related to drugs) and the freezing and forfeiture of the proceeds of crime under the Proceeds of Crime Act, 1996.
Prosecution and judicial practice
The Irish criminal justice system is an adversarial system in which the onus of proving guilt rests on the prosecutor. The proceedings for drug related cases (such as for all the other offences) are dealt on a summary basis or on indictment. A summary offence is a minor offence chargeable by way of a summons, tried before a judge of a District Court. The District Court can impose a fine, one of a range of non-custodial sanctions or a prison sentence. Generally, the maximum term of imprisonment which may be imposed by the District Court for any one offence is 12 months, thoug in certain circumstances a consecutive sentence can extend the aggregate term to two years. The indictment proceeding is followed in all more serious (drug) cases. Therefore, drug related crimes considered too serious for the District Court are referred to the Criminal Courts. Here the defendant is entitled to a trial by jury.
Virtually all criminal prosecutions on indictment are made by the Director of Public Prosecutions (DPP). It is a function of the police (Garda Siochana) to investigate crime and in certain summary cases (where an offence is a minor one chargeable by way of a summons, tried before a judge) to prosecute offenders to the verdict. The majority of criminal prosecutions are taken summarily by Gardaí acting on behalf of the DPP.
In addition to custodial measures there is a range of non-custodial options available to sentence those who plead or are found guilty. The decision of the court in relation to sentencing may be influenced by a Pre-Sanction Report. This report is compiled by the Probation and Welfare Service and includes information on factors that may have contributed to the individual’s offending, such as addiction to drugs. Non-custodial options include :
Probation Order (Probation of Offenders Act, 1907) – this is to secure the rehabilitation of the offender, to protect the public and to prevent the offender from committing further offences. It is used, inter alia, for drug users where conditions may include attendance for treatment and the provision of urine for analysis. This is the preferred procedure in the District Court when dealing with drug users.
Supervision during deferment of penalty / Intensive Supervised Probation (Suspended sentence). This facility was designed to increase restraints on offenders in the community. Offenders are required to report for frequent urine testing. The type and levels of demand placed on offenders differ enormously by jurisdiction.
Order of Recognisance (Misuse of Drugs Act, 1977, Section 28 as amended by the Misuse of Drugs Act, 1984) – This is an order requiring an offender to undergo treatment for drug addiction in a residential centre or in the community. This is an important non-custodial option for drug users. However, in practice this Order is not generally used by the courts since the provision of a statutory place of treatment has always been problematic.
Community Service Orders (Criminal Justice Act, 1983) require offenders to perform unpaid work for between 40 and 240 hours. There is a perceived lack of suitability of community service for offenders with addictions (Final Report of The Expert Group on The Probation and Welfare Services, 1999). This can be due to the unstable nature of drug addicts.
A fine has statutory limits, fixed for a particular offence. The money goes to Central Funds and if unpaid can be enforced by committal to prison.
A Compensation Order has a specific statutory format as laid out in the Criminal Justice Act, 1993 and is related to the wrong done. The money goes to the victim rather than to Central Funds.
Discharge under the Probation of Offenders Act, 1907, (Section 1) where a decision is made not to proceed to convict.
Scenario 1: possession of heroin for personal use by an adult offender.
Section 3 of the Misuse of Drugs Act 1977 makes it an offence to be in possession of a controlled drug. The penalties are laid down in Section 6, subsection (1) of the Misuse of Drugs Act 1984. Under this legislation, the penalties for possession of controlled drugs such as heroin or cocaine are as follows:
(i) On summary conviction a fine not exceeding £1 000 / €1 270 or, at the discretion of the court, imprisonment for a term not exceeding twelve months, or both.
Or
(ii) On conviction on indictment a fine of such amount as the court considers appropriate or, at the discretion of the court, imprisonmented for a term not exceeding seven years, or both.
In practice the sentences given for possession of heroin will depend on whether or not it is a first conviction. The most common outcome is that a Probation Order will be imposed or that a suspended sentence will be given. The range of penalties however may vary from a fine or community service to a suspended sentence.
Scenario 2: property crime committed by a drug user to finance her/his drug addiction.
Such charges are dealt with under section 2 of the Larceny Act, 1916 with the penalties as amended in Section 9 of the Larceny Act, 1990. By this legislation the penalty is a term of imprisonment not exceeding ten years or a fine or both.
In practice the District Court is generally used for cases involving property crime except in cases where violence was used. In cases of persistent burglary, the maximum sentence possible in the District Court will be handed down. A Probation Order will generally be imposed on first-time property crime offenders where no violence was involved. These crimes will generally attract a community service order of 40 to 50 hours.
However, if the crime involved violence and/or psychological distress to the victim, then more serious action will be taken. For example, the Director of Public Prosecutions can decide that the case should be tried in the Circuit Court therefore implying a more severe sentence. The Non-Fatal Offences Against the Persons Act 1997 creates a range of offences relating to criminal conduct involving syringes which can attract penalties of up to life imprisonment.
Scenario 3: small-scale distribution of drugs by a drug user to finance her/his drug addiction.
Section 15 of the Misuse of Drugs Act 1977 makes it an offence to be in possession of a controlled drug for the purpose of selling or otherwise supplying it to another person. The Act (Section 15, (2)) stipulates that ‘it be proved that a person was in possession of a controlled drug and the court, having regard to the quantity of the controlled drug which the person possessed or to such other matter as the court considers relevant, is satisfied that it is reasonable to assume that the controlled drug was not intended for the immediate personal use of the person, he shall be presumed, until the court is satisfied of the contrary, to have been in possession of the controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under Section 5 of this Act’.
The penalties are laid down in Section 6, subsection (3), paragraphs (a) and (b) of the Misuse of Drugs Act 1984. According to the legislation, the penalties for possession of a controlled drug for the purpose of sale or supply are as follows:
(i) On summary conviction, to a fine not exceeding £1 000 / €1 270 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or both.
Or
(ii) On conviction on indictment, to a fine of such amount as the court considers appropriate or, at the discretion of the court, to imprisonment for life or such lesser period as the court shall determine, or both. Where the drugs have a value of IR£10 000 / €12 700 then the provisions in Section 15(A), as inserted by the Criminal Justice Act, apply (see above).
In practice the minimum sentence given for this offence would be 6 to 9 months suspended with a referral to the Probation Service. In both cases, these sentences would apply for a first offence. If it was a second or third offence and a guilty plea were entered, a sentence of between a year and a year and a half would generally be given. Responsible actors have stressed the importance that Section 3 offences (possession) would not become Section 15 offences (sale and supply). The amount involved and the circumstances dictate whether a case is seen as a Section 3 or a Section 15 (see Section 15(A) as inserted by Part 2 of the Criminal Justice Act, 1999).
Prevention, care and treatment The establishment of a Drug Courts system, initially on a pilot basis in Dublin under the jurisdiction of the District Court, commenced on 9th January 2001. These courts are intended to be treatment oriented, where people with a drug problem and who are charged with non-violent offences, are diverted to treatment programmes rather than to prison. This development is likely to have major implications for treatment services. It is expected that the project will increase substantially the use of treatment options instead of custodial sentences for non violent drug addicts.
The Drug Court pilot programme, which will be run for a period of 18 months, is being evaluated by expert consultants. The success of the pilot programme depends on the development of an integrated cross service strategic plan involving court supervised treatment programmes. The merit of implementing a Drug Court programme on a national basis will be considered following the completion and evaluation of the Pilot Project in Dublin.
The Misuse of Drugs (Supervision of Prescriptions and Supply of Methadone) Regulations, 1998 lays down the rules concerning the prescription of specified controlled substances, mainly methadone, by medical practitioners. The name, address and date of birth of a person participating in a programme of treatment involving the use of such controlled drugs together with the name of the prescribing practitioner and the dispensing pharmacist must be notified to the Eastern Health Board. A Drug Treatment Card, which is valid for periods up to one year only, may be issued by a Health Board in respect of a person seeking treatment on a methadone programme. As from 1 October 1998 medical practitioners may not issue prescriptions for these controlled substances other than to a person who has been issued a drug treatment card. Pharmacists, or ‘person keeping open shop for the dispensing or compounding of medical prescriptions’, may not supply the specified drugs to anyone other than a person to whom a treatment card has been issued, and must forward a record of all prescriptions to the Minister for Health & Children. The regulations do not apply to prescriptions issued in a hospital, for administration in the hospital, or to a prescription issued for the treatment of a person for purposes other than for opiate dependence.
Money laundering and confiscation
The Criminal Justice Act, 1994 criminalises money laundering related to drugs or other criminal activity, regulating the obligations to report on suspicious operation to a range of persons or bodies carrying out certain activities. Penalties imposed where where money, on foot of a confiscation order outlined under this Act, has not been paid are as follows:
· A confiscation order not exceeding £500 (€635), 45 days imprisonment;
· A confiscation order exceeding £500 (€635) but not exceeding £1 000 (€1 270) 3 months imprisonment;
· A confiscation order exceeding £1 000 (€1 270) but not exceeding £2 500 (€3 174) 4 months imprisonment; and, similarly up to
· the maximum confiscating order exceeding £1 million (€1 269 000) which have a maximum penalty of up to 10 years imprisonment.
Under the Criminal Assets Bureau Act, 1996 the Criminal Assets Bureau was established on a statutory footing with powers to focus on the illegally acquired assets of criminals involved in serious crime. The aims of the Bureau are to identify the criminally acquired assets of persons and to take the appropriate action to deny such people of these assets. This action is taken particularly through the application of the Proceeds of Crime Act, 1996. The Proceeds of Crime Act, 1996 provides for the freezing and forfeiture of the proceeds of crime. This legislation complements the confiscation provisions of the Criminal Justice Act, 1994.
