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Connolly, Johnny (2006) Legal briefing 2006. Drugnet Ireland , Issue 20, Winter 2006 , p. 19.

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This legal briefing reviews some of the significant drug-related legislative initiatives introduced during 2006.

On 1 January 2006 the Railway Safety Commission was established under the Railway Safety Act 2005.1 The Commission regulates railway safety in Ireland and has wide-ranging powers to monitor and inspect railway infrastructure and to take enforcement action where necessary. Provisions in the Act relating to the testing of safety-critical workers for the presence of ‘intoxicants’, which include alcohol and drugs and any combination of drugs or of drugs and alcohol (Parts 9 and 10), give the Commission power to approve codes of conduct, sampling procedures and support services.

An order under the Misuse of Drugs Act 1977 provides that, from 31 January 2006, ‘any substance, product or preparation (whether natural or not), including a fungus of any kind or description, which contains psilocin or an ester of psilocin is a controlled drug for the purposes of the Act’.2 The effect of this order is to render the possession or sale of so-called ‘magic’ mushrooms criminal offences under the Act. Heretofore, it was illegal to possess or supply magic mushrooms in a dried or prepared state but lawful to possess and sell them in their natural state.3

The Criminal Justice Act 2006 was signed into law by the President on 16 July 2006.  On 1 August 2006, Michael McDowell TD, Minister for Justice, Equality and Law Reform, signed an order bringing into operation a number of provisions contained in the Act that relate to the jurisdiction of district court judges to issue a search warrant when they are outside their own district.4

With regard to organised crime and drugs, the Criminal Justice Act 2006 provides a new definition of ‘criminal organisation’ as ‘a structured group composed of three or more persons acting in concert, established over a period of time and having as its main purpose or main activity the commission of or facilitation of a serious offence’. The Act delineates new offences relating to participation in or assisting the activities of a criminal organisation. 

The Irish Human Rights Commission (IHRC) has raised a number of concerns about some of the provisions of the Criminal Justice Act.5 In relation to proposals contained in Part II, which add additional grounds to the mandatory sentencing guidelines for persons convicted in possession of drugs valued at €13,000 or more (Criminal Justice Act 1999), the IHRC states that it is concerned ‘that the proposals in relation to the 10 year mandatory sentence may undermine the discretion of the judiciary to ensure that the sentence imposed is in line with the principle of proportionality, and to ensure that a fair balance is struck between the particular circumstances of the commission of the offence and the relevant circumstances of the person sentenced’ (p.17). With regard to the determination of the market value of the drugs, the IHRC recommends that an objective expert witness be called to give an opinion on the valuation of drugs before the court. The IHRC is also of the view that the €13,000 valuation for drug trafficking offences should be reviewed in light of inflation and the current cost of drugs. The Act amends the law so that it will not be necessary for the prosecution to prove that a person charged with an offence relating to the possession of drugs under section 15A of the Misuse of Drugs Act 1977 knew that the value of the drugs in his or her possession was €13,000 or more, or was reckless in that regard. In relation to this provision, ‘the IHRC is of the view that the removal of the element of knowledge or intention on the part of the accused person may raise questions around the forseeability of criminal liability. The IHRC recommends that the prosecution should be required to prove that the accused has reasonable grounds to believe that the drugs in his or her possession were worth €13,000 (or whatever the limit may be) or more’ (p.17).

The IHRC has also raised concerns about the proposal in the Act to establish a Drug Offenders Register, modelled on the Sex Offenders Register provided for in the Sex Offenders Act 2001. It states that ‘it is not apparent…how a drug offenders register will be an effective, necessary or proportionate response’ (p.21) to the need to prevent drug trafficking, and it has requested further information from the minister on the purpose of the proposed register.

Implementation of laws
·      It was reported on 5 May 2006 that plans are at an advanced stage for the extension of the Drug Treatment Court to include referrals from all courts in the Dublin metropolitan area.6 ·      Guidelines setting out the functions, composition and operation of joint policing committees (JPCs), established under the Garda Síochána Act 2005, were published in June.7 JPCs are to be established in each of the 114 local authority administrative areas throughout the State. They will bring together representatives from the local authority, gardaí, public representatives and representatives of the community and voluntary sector to discuss and make recommendations on matters affecting the policing of the area.8   

1. S.I. No. 841 of 2005. Railway Safety Act (Part 2) (Establishment Day) Order 2005.

2. S.I. No. 55 of 2006. Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order 2006.

3. Connolly J (2006) Government bans sales of ‘magic’ mushrooms. Drugnet Ireland, 17: 9.

4. The need for these provisions arose on foot of the Supreme Court judgement in the case of Creaven & Ors v. Criminal Assets Bureau & Ors [2004] IESC 92 (29 October 2004)

5. Irish Human Rights Commission (2006) Observations on additional proposals for amendments to the Criminal Justice Bill 2004. Dublin: IHRC.

6. O'Brien C (2006) Drug Treatment Court programme to be expanded. Irish Times, (5 May): 5.

7. Department of Justice Equality and Law Reform (2006) Garda Síochána Act 2005: Joint policing committee guidelines. Dublin: Department of Justice Equality and Law Reform.

8. Connolly J (2006) Guidelines on joint policing committees. Drugnet Ireland, 19: 9.

 

Item Type:Article
Issue Title:Issue 20, Winter 2006
Date:October 2006
Page Range:p. 19
Publisher:Health Research Board
Volume:Issue 20, Winter 2006
EndNote:View
Accession Number:HRB (Available)
Subjects:VA Geographic area > Europe > Ireland
MM-MO Crime and law > Substance use laws

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