Home > Supreme Court overturns mandatory drug sentence.

Connolly, Johnny (2011) Supreme Court overturns mandatory drug sentence. Drugnet Ireland, Issue 38, Summer 2011, pp. 15-16.

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A recent decision by the Supreme Court to overturn a 10-year prison sentence for drug possession has raised doubts about the operation of legislation under which sentences are determined based on the estimated market value of seized drugs.1  

What follows is an abridged extract from the judgement setting aside the conviction as delivered by Mr Justice Fennelly in the Supreme Court on 15 February 2011.
In the original trial it was alleged that the appellant in this case had in his possession for the purpose of sale or supply amphetamines with a market value of €13,000 or more contrary to section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act 1977. This offence attracts a minimum presumptive sentence of 10 years’ imprisonment.
Counsel for the appellant submitted at trial that the proof of value of the drugs proffered by the prosecution was insufficient and that he had no case to answer. The trial judge refused his application for a direction. The appellant appealed against his conviction to the Court of Criminal Appeal on the single ground that:
… there was no evidence on which a properly directed jury could come to the conclusion and be satisfied beyond a reasonable doubt that the market value of the drugs concerned was €13,000 or more.
The Court of Criminal Appeal concluded that there had been no error of law in the original trial.  However, the CCA referred the following matter to the Supreme Court to be determined2 as a question of law of exceptional importance:
In a prosecution pursuant to section 15A of the Misuse of Drugs Act 1977, for the purpose of ascertaining the amount of a controlled substance present in a powder in a sealed container or in a number of such containers proven by expert evidence to contain that particular controlled substance, may the amount of that controlled substance present in the powder be established by the oral evidence of an expert as to the range within which amounts of that controlled substance in other powders generally fell and, if the answer is in the affirmative, must the prosecution disclose to the defence a statement or a report by that expert setting out the facts upon which her or his opinion as to that range is based?
The primary issue considered by the Supreme Court was the sufficiency of proof required to determine the value of drugs. The appellant had been arrested in possession of approximately ten kilograms of amphetamines packed in 10 separate bags.At trial, a member of the Garda National Drugs Unit estimated the value of the drugs at €145,755, using a price of €15,000 per kilo. The Garda assumed that each of the packs of amphetamine contained at least 10% of amphetamine. It was accepted that proof of the actual contents and percentage of amphetamine present was a matter to be determined by the Forensic Science Laboratory (FSL).
A scientist of the FSL explained that she had analysed five of the packs and could say with 100% certainty that the five packs contained amphetamine, but not how much. She added that, taking into account the general appearance of the packs and the powder her professional opinion was that it was highly unlikely that any of the packs would be negative. However, she stated further: 
I can’t say for definite what the purity of the samples are but I can give a range in which amphetamine purities generally fall between that is maybe 10 and 40% but the samples were not quantified because quantification is not a routine course of qualitative analysis so I cannot put an exact figure on the purity…
In further cross-examination, the scientist agreed that the presence of as little as 1% would trigger the test she had carried out, but repeated that the range is generally between 10% and 40%.
[Mr Justice Fennelly then explained the nature of the proof required to secure a conviction under the relevant legislation.]
Proof of value is an essential ingredient of the offence under section 15A. It is what distinguishes it from the offence of possession for sale or supply of an unquantified and unvalued amount of drugs. Most importantly, it is what has caused the Oireachtas, subject to exceptional mitigating circumstances, to mark the offence as one of extreme seriousness such as to require the court, in sentencing a convicted person, to impose a penalty of a minimum of ten years’ imprisonment. The ingredient of value must be proved to the satisfaction of the jury beyond reasonable doubt.
At the original trial, the forensic scientist established the presence of amphetamine in each of the five packs she had analysed, but had not determined the extent of the amphetamine content and was therefore unable to say ‘for definite’ what the level of presence of amphetamine was. She said that the range in which amphetamine purities ‘generally fall’ was between 10% and 40%.
Everything turns on the meaning to be attributed to the word ‘generally’. It is a word of flexible use. It may imply, perhaps, that a majority of cases fall within that range, but, in a weaker sense, may mean no more than ‘commonly’. If the facts were that analysis of seized drugs for amphetamine always or nearly always falls within the 10/40% range, one might have expected the witness to say so. Instead, she used the word ‘generally’ three times. In its normal usage the word leaves open the very real possibility that there are cases outside that range. It cannot be assumed that Dr Casey meant any more than that there was probably 10% to 40% amphetamine present. Probability is not enough.
The evidence did not exclude the very real possibility that the percentage of amphetamine present could have been as low as 1%. Such a percentage was sufficient to produce the result which she obtained from her test. However, if that were the case the value of those drugs would be less than the amount required to sustain a conviction for the offence in issue.
The proof of value is an objective matter. In this case it was not sufficient for the prosecution to prove the mere presence of amphetamine and to rely on an unexplained range of values which generally applies without evidence which addressed the extent to which there are cases outside the range. This left a gap in the prosecution evidence. I believe that the case should have been withdrawn from the jury. I would allow the appeal and set aside the conviction of the appellant in respect of count number 1 on the indictment.
I would not direct a retrial. There is no reason to believe that Dr Casey would be in a position to give any different evidence on another occasion.
(Compiled by Johnny Connolly)
1.   Director of Public Prosecutions v Connolly [2011] IESC 6. Supreme Court. Judgement by Fennelly J. www.courts.ie/judgments.nsf
2.   As provided for pursuant to section 29 of the Courts of Justice Act 1929, as substituted by section 22 of the Criminal Justice Act 2006
Item Type
Publication Type
Irish-related, Open Access, Article
Issue Title
Issue 38, Summer 2011
Page Range
pp. 15-16
Health Research Board
Issue 38, Summer 2011
Accession Number
HRB (Electronic Only)

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