On 2 August 2019, the Government announced the launch of a Health Diversion Approach to the possession of drugs for personal use. The final report of the Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use and supporting documents were also published that day.1,2,3 Taking into consideration the findings of this report and the range of stakeholder views, the Department of Health and the Department of Justice and Equality agreed to adopt a more health-led approach to possession for personal use.

The Health Diversion Approach offers alternatives to criminal prosecutions for the first two instances in which people are found in possession of drugs for their personal use. Essentially, the action taken by An Garda Síochána (AGS) will depend on the number of times an individual has been caught in possession. 

• On the first occasion, AGS will refer them, on a mandatory basis, to the Health Service Executive (HSE) for a health screening and brief intervention.
• On the second occasion, AGS will have the discretion to issue an adult caution.
• On the third or any subsequent occasion, AGS will revert to dealing with the person in line with Section 3 of the Misuse of Drugs Act 1977, under which they could receive a criminal conviction and custodial sentence.The health screening and brief intervention will be carried out by trained HSE staff using the Screening and Brief Intervention for Problem Alcohol and Substance Use (SAOR) programme. New posts will be created across the HSE’s Community Healthcare Organisation Areas for staff trained in SAOR to carry out the brief intervention. By November 2019, no further details were available on how the new approach will be implemented.Other recommendations made by the Working Group, but which were not considered by Government, included that imprisonment would no longer be an outcome for the possession of drugs for personal use and that all related convictions could be spent.4This issue of Drugnet Ireland looks at three other topics related to the new approach:
• An implementation, monitoring, and evaluation group has been established to examine the need for legislative change, the operational details, and the phasing of the implementation. The group will be chaired by the Department of Health and its membership will include, but not be limited to, the HSE, AGS, and the Department of Justice and Equality. It is expected that this group will begin its work in Q4 2019, with the aim of phasing in the Health Diversion Approach in Q3 2020. 

1   An overview of the final report of the Working Group, focusing on its recommendations.

2   A more detailed overview of the Working Group’s conclusions on the question of decriminalisation in the Irish context.

3   Stakeholder responses to the Working Group’s report and the Health Diversion Approach

1. Overview of Working Group’s final report

In December 2017, the Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use was established. It was set up to deliver on a commitment in Ireland’s national drugs strategy to ‘consider the approaches taken in other jurisdictions to the possession of small quantities of drugs for personal use with a view to making recommendations on policy options to the relevant Minister within 12 months’ (p. 58).5 The group undertook a programme of research and consultation to identify alternatives to the current system and to consider which alternatives would be appropriate in the Irish context.2,3 The group’s final report was published on 2 August 2019.1

Report overview

The report presents an overview of the current situation in Ireland in relation to the possession of drugs for personal use. It maps out Ireland’s current legislative regime and the rationale underpinning it as well as the current options available to the courts when prosecuting for simple possession. The report includes key findings from research commissioned by the Working Group on the legislative approach taken in Ireland compared with other jurisdictions, and outlines a set of possible options that could work in the Irish context. There is also an overview of the public consultation and various stakeholder presentations made in the course of the group’s work. Key findings from an examination of the costings of alternative approaches carried out by the Irish Government Economic and Evaluation Service (IGEES) in the Department of Justice are also included.3 The report outlines the Working Group’s considerations on a selection of policy approaches and their suitability to the Irish context.

Principles

In considering different policy approaches and making their recommendations, the Working Group identifies three principles that alternatives should address, while also being cognisant of potential difficulties imposed by Ireland’s legal system:

• A person should be afforded the opportunity to avoid a criminal conviction for the possession of drugs for their personal use
• A person should be supported to avoid, reduce and recover from drug-related harm
• A person with problematic drug use should be referred to appropriate treatment or other support (p. 58).1 

Recommendations

In the final chapter of the report, the Working Group presents a set of recommendations. These are based on detailed discussion of the evidence gathered in the course of its work, its consultations and its discussions of the various alternatives. It recommends three policy options for the legislature to consider. It regards these as both workable in the Irish context and can address the concerns of Government and the public, albeit to varying degrees.

Option 1: Adult caution

The Adult Cautioning Scheme is a discretionary alternative to prosecution, whereby a person found in possession of drugs for personal use could be given a formal caution by Gardaí, who could also provide the individual with a health and social services information leaflet.

Option 2: Multiple adult cautions

Subject to the agreement of the Director of Public Prosecutions, a person could be given the benefit of an adult caution by Gardaí more than once. This could provide a discretionary alternative to prosecution and criminal conviction on more than one occasion.

The individual would also be provided with a health and social services information leaflet, whenever they are given an adult caution in respect of possession of drugs for personal use.

Option 3: Diversion to health services

• This option is based on a public health approach to drug use.

• A person in possession of drugs for personal use would be offered a diversion for a SAOR brief intervention and screening.
• A person with or at risk of problematic drug use would then be offered the appropriate onward referral for treatment or other supports.
• In addition to these three policy options, the Working Group makes a set of other recommendations: 

(a) That imprisonment, in principle, is no longer an outcome for the possession of drugs for personal use (subject to a full examination of the legal implications and any unforeseen consequences).

(b) That all convictions for drug possession for personal use can be spent.6 In addition, that the time between the conviction and it becoming spent be reduced from seven years to three years.

(c) That a dismissal or non-conviction under the Probation Act is recorded correctly so that it will be clear when the person’s records are being checked.

(d) That current legislation is not changed to include a threshold limit to distinguish between what is meant by personal use versus that for sale or supply.

(e) Given the nature of problem substance use as a chronic, often recurring condition, that there are pathways available at all levels of the criminal justice system to refer people to treatment following prosecution.

(f) That additional investment in services is made to meet the greater treatment demand that may come from any change in related policy.

(g) That there is a campaign to increase awareness of the treatments available and the harms associated with drug use. It mentions in particular those associated with cannabis use.

(h) That any alternative approach introduced in Ireland is monitored, has a data collection mechanism, an evaluation of the implementation, and scope for appropriate modification. 

1. Working Group’s conclusions on decriminalisation in Irish context

The Working Group considered decriminalisation as one of the alternative policy approaches to dealing with possession for personal use in the Irish context. It was ultimately rejected by the Working Group and not considered by the Government when developing their Health Diversion Approach.

Portuguese approach

Decriminalisation has received a lot of attention among stakeholders over recent years and throughout the lifetime of the Working Group, in particular ‘the Portuguese approach’ (p. 61).1 As defined by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), under decriminalisation ‘the status of the offence is reclassified from a criminal offence to a non-criminal offence within a country’s legal framework. It is still an offence, it is still prohibited behaviour that will be stopped by police and punished, but it is no longer considered criminal’ (p. 27).1 Research commissioned by the Working Group described Portugal as using a model of ‘decriminalisation with targeted diversion to health/social services’ (p. 68).2

The Director of the National Unit to Combat Trafficking in Narcotic Drugs of Portugal’s Judicial Police made a presentation to the Working Group. He described how in Portugal the possession of drugs for personal use continues to be illegal. However, the offence is not a criminal one but is considered to be a misdemeanour for which a penalty or sanction can be applied. When a police officer finds a person in possession, they refer the person to a ‘drug dissuasion committee’ – this is a local administrative body for drug addiction, set up by Portugal’s Ministry for Health. The individual has a mandatory obligation to report to the committee on referral from a member of the police. There is no limit to the number of referrals an individual can get.

Suitability to Irish context

Having given ‘considerable time over the course of its meetings to examining how a similar approach could be adopted in Ireland’ (p. 61),1 the Working Group concluded that decriminalisation along the lines of that in Portugal was not suited to the Irish context. The decision is based on their understanding that the Irish legal system is not compatible with decriminalisation. Unlike most European Union countries, Ireland is a common law jurisdiction, not a codified civil law jurisdiction. The Working Group argues that there would be difficulties in applying decriminalisation (as defined by the EMCDDA) – in particular, that the concept of a criminal offence with an administrative or civil sanction would not be compatible with the Irish legal system. Decriminalisation would require an amendment to Section 3 of the Misuse of Drugs Act 1977 so that possessing drugs for personal use would no longer be an offence. The Working Group identified three main problems with making such a legislative change: 

• The Gardaí would no longer have the power to stop and search a person for possession of drugs for their personal use. The Working Group considered whether Garda powers to stop and search based on public health considerations could be preserved if possession for personal use was decriminalised, and formed the view that this could give rise to constitutional and legal difficulties as no criminal offence would have been committed.
• Organised crime gangs could use the limits set for personal possession to facilitate a supply chain just below these thresholds. Although the report also notes that the ‘Working Group understands that people involved in the sale and supply of drugs already carry minimum amounts of drugs in order to avoid criminal prosecution for sale or supply at present in Ireland’ (p. 61).1
• Removal of the offence could lead to de facto legalisation ‘given that there would no longer be a criminal offence of possession for personal use’ (p. 67),1 and there may be unintended and undesirable consequences. 

Recommendations

Given this context, the Working Group did not recommend the Portuguese model of ‘decriminalisation with targeted referral to services’ as appropriate for the Irish context. Instead, it concluded that the best way to mirror such an approach would be to continue to have possession for personal use as an offence, so that Gardaí have the power to stop and search but that they would also be able to divert people to appropriate services (p. 67).1 This rationale was cited by Minister for Health Simon Harris in his speech at the launch when explaining why the Government decided not to decriminalise possession for personal use.7 

1. Responses to Working Group’s report and Government’s Health Diversion Approach

The work and findings of the Working Group as well as the Government’s new approach have attracted much interest among stakeholders. The views of stakeholders vary and reflect the debate about whether possession for personal use calls for a health- or justice-led response. Some responses to the report and the Government’s approach are considered here.

Justice-led approach

The Working Group’s report includes addenda containing the views of three stakeholders, from the field of justice, on the report’s recommendations: namely, a representative of the Office of the Director of Public Prosecutions (ODPP), An Garda Síochána (AGS), and a Senior Lecturer in Law.1 The report does not describe the process through which these responses were selected for inclusion. The responses included: 

• The ODPP considers that the removal of a custodial penalty (recommendation (a) above) would also remove from the options of community service orders and suspended sentences from the courts.
• As a response to possession for personal use, AGS does not support the introduction of multiple adult cautions (option 2 above), the removal of a custodial penalty (recommendation (a) above), and has reservations about recommendation (b) that all such convictions could be spent.
• AGS criticises the report for not giving more consideration to the impact of the drugs market on organised crime in Ireland.
• AGS does not consider the Working Group to have fully explored the procedural and legal impediments to the alternative approaches and therefore does not recommend full adoption of the report’s findings.
• AGS supports recommendations (c)–(h) as outlined above.
• Similar views are expressed by the chairperson of the Working Group in his minority report.8

Health-led approach

The Government’s decision to move towards a more health-led approach has been broadly welcomed by other stakeholders. However, there have been criticisms that the report’s recommendations and the Government’s approach have not gone far enough in the direction of health. Below are some of the views expressed in two stakeholder responses: an open letter to An Taoiseach signed by 52 civil society organisations (though sent prior to the launch of the report, it was based on ‘indications’ of what the report would contain, which reflected accurate content) and an opinion piece from the Ana Liffey Drug Project.9,10

The civil society representatives argue that implementing a health diversion approach while maintaining a criminal status for possession for personal use is ‘contradictory and lacking in logic’.9

The value of limiting a person to only one opportunity to be diverted to a health intervention is challenged. Ana Liffey contends that ‘if drug use is a health issue the first time, it is a health issue the hundredth time’.10 It argues that this approach will further marginalise and stigmatise the most vulnerable users. Given the nature of their drug use and their circumstances, they are more likely to come into contact with AGS, and therefore will continue to be treated as criminals.

Both responses challenge the assumptions that the ‘legal changes required to decriminalise possession for personal use would be too complicated’9 and that decriminalisation could not be made compatible with retaining the powers of AGS to stop, search, and confiscate drugs. Both call for a more detailed consideration of how appropriate legislation could be developed.

Ana Liffey view the proposed Health Diversion Approach as unnecessarily ‘complicated and bureaucratic’ and argue that it does not represent ‘value to the taxpayer’.10

The Government is criticised for not considering other recommendations of the Working Group. In particular, that imprisonment would no longer be an outcome for the possession of drugs for personal use and that all related convictions could be spent.6

1 Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use (2019) Report of the Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use. Dublin: Department of Health and Department of Justice and Equality. https://www.drugsandalcohol.ie/30887/

2 Hughes C, Stevens A, Hulme S and Cassidy R (2019) Review of approaches taken in Ireland and in other jurisdictions to simple possession drug offences. A report for the Irish Department of Justice and Equality and the Department of Health. Sydney and Canterbury: University of New South Wales and University of Kent. https://www.drugsandalcohol.ie/30895/

3 Irish Government Economic and Evaluation Service (2019) Costings of an alternative approach to drug possession. Dublin: Department of Justice and Equality. https://www.drugsandalcohol.ie/30887/

4 Department of Health (2019) Ministers Harris, Flanagan, and Byrne announce health-led approach to the possession of drugs for personal use. Press release, 2 August 2019. Dublin: Department of Health. https://www.drugsandalcohol.ie/30888/

5 Department of Health (2017) Reducing harm, supporting recovery: a health-led response to drug and alcohol use in Ireland 2017-2025. Dublin: Department of Health. https://www.drugsandalcohol.ie/27603/

6 Under the provisions of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, an adult convicted of an offence covered by the Act does not have to disclose the conviction after seven years, except in certain circumstances.

7 Department of Health (2019) Speech by Minister Harris at launch of health diversion approach for drug use. 2 August 2019. Dublin: Department of Health. https://www.drugsandalcohol.ie/31070/

8 Sheehan G (2019) Minority report of Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use. Dublin: Department of Health and Department of Justice and Equality. https://www.drugsandalcohol.ie/30887/

9 CityWide Drugs Crisis Campaign (2019) An open letter to Taoiseach Leo Varadkar. 15 July 2019. Dublin: CityWide Drugs Crisis Campaign. https://www.citywide.ie/resources/open-letter-to-taoiseach-july-2019/

10 Keane M (2019) Opinion: The government’s new drug policy will do nothing to end the stigmatisation of drug users. Thejournal.ie, 7 August 2019. https://www.drugsandalcohol.ie/30897/