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Connolly, Johnny (2010) Legal update 2009. Drugnet Ireland, Issue 33, Spring 2010, p. 22.

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This update covers drug-related Bills and Acts of the Oireachtas introduced or progressed in 2009. It also identifies new substances brought under control within the terms of the Misuse of Drugs legislation. 

The Criminal Justice (Surveillance) Act 2009 provides, for the first time, a legal framework to allow covert surveillance material to be used in criminal trials. The Garda Síochána, the Defence Forces and the Revenue Commissioners will have a statutory framework for the operation of secret electronic surveillance to combat serious crime as well as subversive and terrorist threats against the security of the State. The legislation also builds in safeguards with regard to the authorisation, duration and operation of such surveillance.
 
The Criminal Justice (Amendment) Act 2009 makes provision to enable all organised crime offences to be declared scheduled offences for the purpose of trial in the Special Criminal Court, which operates with three judges and without a jury. Section 3 of the 2009 Act amends section 70 of the Criminal Justice Act 2006 and defines a ‘criminal organisation’ as ‘a structured group, however organised, that has as its main purpose or activity the commission or facilitation of a serious offence’. A ‘structured group’ is defined as ‘a group of 3 or more persons, which is not randomly formed for the immediate commission of a single offence, and the involvement in which by 2 or more of those persons is with a view to their acting in concert; for the avoidance of doubt, a structured group may exist notwithstanding the absence of all or any of the following:
a) formal rules or formal membership, or any formal roles for those involved in the group;
b) any hierarchical or leadership structure;
c) continuity of involvement by persons in the group.’
 
In relation to bail, organised crime offences will be scheduled as ‘serious offences’ within the meaning of the Bail Act 1997, thereby providing for circumstances where bail may be refused by the courts. 
 
In its passage through the Oireachtas, this legislation gave rise to a number of criticisms from lawyers and human rights groups. With regard to restrictions on the Irish constitutional right to trial by jury, the Irish Human Rights Commission (IHRC) stated: ‘The IHRC is cognisant that organised crime is a problem in Ireland and that it has the potential to cause great harm to Irish society. However, the IHRC considers that the exigencies of the situation in Ireland do not justify the restriction of the Constitutional right to trial by jury.’1The IHRC suggested that with regard to the risk of jury intimidation, a number of other measures could be adopted to address this potential problem including having an anonymous jury, screening the jury from public view, protecting the jury during the trial, or locating the jury in a different place from where the trial is being held, with communication by video link.
 
The Criminal Justice (Miscellaneous Provisions) Act 2009 provides a statutory framework for the control of firearms.
 
The Housing (Miscellaneous Provisions) Act 2009 obliges local housing authorities to adopt a strategy to prevent and reduce anti-social behaviour in their housing stock, with the additional objectives of the co-ordination of services and the promotion of co-operation with other agencies to that end.  The Act also broadens the definition of anti-social behaviour in the Housing (Miscellaneous Provisions) Act 1997 to include significant or persistent impairment of a person’s use or enjoyment of their home, and damage to or defacement of any property,.
 
The Health (Miscellaneous Provisions) Act 2009 makes arrangements for progressing the integration of health service agencies in line with Government policy on the rationalisation of public sector agencies. Part 5 of the Act provides for the dissolution of the Drug Treatment Centre Board and the transfer of its rights, liabilities, land and any other assets to the Health Service Executive.
 
The Criminal Procedure Bill 2009 makes provision for a modification of the rule against double jeopardy in order to allow a person who has been acquitted of an offence to be re-tried in circumstances where new and compelling evidence emerges or where the acquittal is tainted due, for example, to corruption or intimidation of witnesses or jurors or perjury. The legislation applies to a number of drug-related offences.2 
 
The Communications (Retention of Data) Bill 2009 requires service providers, those engaged in the provision of a publicly electronic communication service or a public communication network by means of fixed line or mobiles or the internet to retain data relating to fixed and mobile telephony, for one year, and data relating to internet access, internet email and internet telephony for two years.3
 
The Criminal Justice (Money Laundering and Terrorist Financing) Bill 2009 provides for offences of, and related to, money laundering in and outside the State; to give effect to Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.
 
The Road Traffic Act 2009 provides for a reduction in the blood alcohol content (BAC) limit for drivers and also provides powers to assist the Garda Síochána in forming an opinion as to whether a driver is under the influence of an intoxicant (drug or drugs) and to carry out a preliminary impairment test on such drivers.
 
New substances brought under control
In March 2009, Minister for Health and Children Mary Harney TD announced that 1-benzylpiperazine (BZP) is now a controlled drug through statutory instruments (121 and 122 of 2009) amending the Misuse of Drugs Act 1977, and that its possession or sale is now a criminal offence. The new statutory instruments will ensure that BZP is no longer available for sale in ‘head shops’ around the country or on the streets.  
 
  1. Irish Human Rights Commission (2009) Observations on the Criminal Justice (Amendment) Bill 2009. Dublin: Irish Human Rights Commission. http://www.ihrc.ie/
  2. Bill at Committee stage March 2010.
  3. Bill at Report and Final Stages February 2010.
Item Type
Article
Publication Type
Irish-related, Open Access, Article
Drug Type
All substances
Issue Title
Issue 33, Spring 2010
Date
19 April 2010
Page Range
p. 22
Publisher
Health Research Board
Volume
Issue 33, Spring 2010
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