PDF (Drugnet Ireland, issue 22)
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The Criminal Justice Act 2007 was published by the Government on 15 March of this year, passed by the Oireachtas (Parliament) on 24 April, and signed into law by the President on 10 May.
The Act contains a number of important changes to the criminal justice system, including increased Garda detention powers, changes to existing provisions in relation to the right to silence and the introduction of mandatory sentencing for a range of offences. Many of these changes have been introduced in the context of growing concern about drug-related crime.
Currently, seven-day detention powers are available to the Garda Síochána (the Irish police) under the Criminal Justice (Drug Trafficking) Act 1996. Part 9 of the Criminal Justice Act 2007 extends the scope of these powers to, among other offences, murder involving the use of a firearm or explosive and murder of a Garda member or prison officer in the course of their duty.
The Act amends existing provisions relating to the right to silence by clarifying the circumstances in which inferences may be drawn from the refusal of an accused person to answer certain Garda questions. Such inferences can then be used as evidence against that person during court proceedings. Part 4 of the Act allows for inferences to be drawn when an individual fails or refuses to account for objects, substances or marks on their person and where the Garda member reasonably believes that such matters may be linked to the commission of an offence. However, the Act provides for certain safeguards for the accused. For example, the accused will not be convicted of an offence solely or mainly on such inferences and the section shall not apply unless the interview is recorded by electronic or similar means.
Part 3 of the Act contains proposals for mandatory sentencing for offences linked to organised crime, including firearms and drug trafficking offences. Under these proposals the court must impose a sentence that is at least three-quarters of the maximum sentence permissible under the law for that offence. If the maximum term is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years.
Part 5 of the Act proposes amendments to the Misuse of Drugs Act 1977, specifically in relation to the area of sentencing of those in possession of drugs with intent to supply. The key provisions contained in this section of the Act include the following:
- The minimum period of imprisonment for those convicted under Section 15A or 15B of the Misuse of Drugs Act 19771 is to be 10 years, aside from some exceptional circumstances whereby the court determines that it would be unjust to impose such a sentence2
- The minimum period of imprisonment for those convicted of a second or subsequent offence under Section 15A or 15B of the Misuse of Drugs Act 1977 is to be 10 years
The main purpose of these provisions is to ensure that mandatory sentencing for supplying drugs should be imposed in all but the most exceptional circumstances.
The Irish Human Rights Commission (IHRC)3 and the Irish Council for Civil Liberties (ICCL)4 have expressed concerns about a number of provisions in the new Act. The IHRC refers to seven-day detention as ‘a serious curtailment of a person’s right to personal liberty…that warrants real cause and justification’ (p. 3). This view is echoed by the ICCL, which questions the merit of extending such powers to a further range of offences when the current provisions under the Criminal Justice (Drug Trafficking) Act 1996 are, according to the ICCL, ‘rarely, if ever used’ (p. 6). Furthermore, the IHRC contends that the introduction of this measure may result in Ireland violating its obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
Both the IHRC and ICCL have expressed concerns over the changes in sentencing practice introduced by the Act. The ICCL maintains that these new rules on mandatory sentencing may ‘impinge upon the constitutional duty of judges to ensure that sentences are proportionate to both the gravity of the crime and the personal circumstances of the offender’ (p. 8). This view is supported by the IHRC, which states that provisions which impose on the judiciary an obligation to sentence an offender to a specific term of imprisonment raise ‘fundamental concerns’ in relation to the separation of powers doctrine and judicial discretion in relation to sentencing (p. 4).
Both the ICCL and the IHRC, together with leading barristers5 and the Law Society,6 have expressed disquiet in relation to the timeframe in which the measures were enacted. The Law Society has called for greater debate about the provisions of the legislation.
1. These sections relate specifically to possession of drugs with intent to supply.
2. For example, cases in which the convicted person pleaded guilty to the offence or provided assistance in the investigation of the offence. The Bill also states that if a person convicted of an offence under section 15A or 15B of the Misuse of Drugs Act was addicted to one or more controlled drugs at the time of the offence and if this was deemed to be a key factor in the commission of the offence, then the sentence can be reviewed after five years.
3. Irish Human Rights Commission (2007) Observations on the Criminal Justice Bill 2007. Dublin: Irish Human Rights Commission. www.ihrc.ie/press_releases
4. Irish Council for Civil Liberties (2007) What’s wrong with the Criminal Justice Bill 2007? Dublin: Irish Council for Civil Liberties. www.iccl.ie
5. Letter to the Irish Times of 21 February 2007.
6. Law Society of Ireland (2007) ‘‘Law Society’s deep concern at Government’s intention to rush through far-reaching changes in criminal law’. Press release 27 February 2007. Retrieved 04 May 2007 from www.lawsociety.ie/displayCDAContent.aspx?groupID=149&HeaderID=7024&code=latest_news
|Issue Title:||Issue 22, Summer 2007|
|Page Range:||p. 10|
|Publisher:||Health Research Board|
|Accession Number:||HRB (Available)|
|Subjects:||VA Geographic area > Europe > Ireland|
MM-MO Crime and law > Crime
MM-MO Crime and law > Drugs and alcohol laws
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