An expert group has submitted its report on changing the State’s response to drug possession. The Cabinet is due to discuss proposals based on the report tomorrow. Security Correspondent Cormac O’Keeffe has obtained a copy and examines its findings.

The benefit of having senior public servants and other authorities examine significant legal changes is that it should be well informed, with access to expertise and insight. It should also have the plus that its recommendations are practical, implementable, and grounded in law.

The downside is a lack of street knowledge and the absence of the voice of those communities hardest hit by the drugs trade. The other possible risk is a lack of vision and an in-built conservative streak that will, by its nature, be more comfortable with incremental, not radical, change.

Whether those features apply to the State group tasked with examining Ireland’s laws on the possession of drugs for personal use is difficult to know for certain. The group’s 88-page main report, which the Irish Examiner has obtained, has assembled and teased out information and legal concerns not previously aired in the decriminalisation debate before its establishment.

Many may think its findings don’t go far enough; others may believe they are measured and sensible. The committee was chaired by Mr Justice Garreth Sheehan and included six senior civil servants from the departments of justice and health. There was a senior member of the gardaí, the HSE Addiction Services, and the Probation Service.

There was a lawyer from the DPP’s office, a senior law lecturer, and a Health Research Board expert. There were two former drug users. But there was no representation from community or voluntary groups.

Current approach

The group said one of the main aims of criminal law and sanctions was deterrence. It said the probability of being caught for drug possession was “very low”, citing international estimates of it being around 1% for cannabis users.

It said the fact that prevalence of drug use has been rising constantly in Ireland since the early 1980s could be interpreted as evidence the criminal justice response had “limited deterrence effect”. However, it said 74% of those over the age of 15 have not used illegal drugs. It said:

Many studies comparing different countries find no evidence that criminalisation or decriminalisation affect drug-taking or prevalence rates

The report cited the “devastating consequences” a court conviction for drug use can have and that the stigma attached can influence employers, some of whom require disclosure of a criminal record.

It said people from communities suffering social and economic deprivation were “disproportionately affected by drugs issues”.

It said the impact of a criminal record was “especially devastating” for young people and said criminal records may affect people when looking to rent a place or to travel abroad. Some 12,173 people were arrested for possession of drugs for personal use in 2017, up from 11,796 in 2013, but down from a high of 18,077 in 2008.

Citing research, the report estimated that only 20% of arrests for simple possession between 2015 and 2017 ended in a prosecution. Courts Service figures show that 1,123 people were given the Probation Act (involving no conviction) for a section 3 Misuse of Drugs Act offence (personal possession) in 2017.

Separate research indicated that 980 people per year (between 2015 and 2017) received a criminal conviction for a section 3 offence. Department of Justice figures showed that 365 people were committed to prison solely for personal possession in 2015.

This reduced to 286 in 2016 and 73 in 2017 (27 as of July 31 2018). The introduction of the Fines Act 2016 (including payment of fines by installment) may have contributed to the downward trend.

Portuguese model

Much of the group’s work centred around the Portuguese model — an approach that impressed members of the Oireachtas justice committee back in 2015. In a cross-party report that October, the committee called for a similar approach, where there would be a civil or administrative sanction rather than a criminal one, to be considered here.

The group had a detailed presentation from Dr Joao Goulao, one of the drivers of the Portuguese model, with a subsequent video conference with a colleague of his. The report said the working group “gave considerable time” to examining how a similar approach could be adopted in Ireland.

It said that the concept of a criminal offence with an administrative or civil sanction (as in Portugal) was “not compatible” with the Irish legal system. It said that for an offence to be decriminalised in Ireland it would need to be removed from our laws.

Section 3 of the Misuse of Drugs Act would be amended to make simple possession no longer an offence. That would mean gardaí would no longer have the power to stop and search a person for possession of drugs for personal use as it was no longer an offence.

The report said consideration would have to be given to setting threshold limits, separating personal use from supply. But it said that gangs could use the limits in order to supply drugs and said that some dealers were already carrying minimum amounts to avoid prosecution for supply.

The group said that removal of the offence “could lead to de facto legalisation” within unintended and undesirable consequences. It said allowing gardaí to conduct searches on public health considerations where drug possession is no longer an offence could give rise to “constitutional and legal difficulties”.

The report said that decriminalisation in an Irish context “may create a vacuum in terms of a mechanism for identifying and diverting those persons who might benefit from a health intervention”.

It said there would be serious difficulties in Ireland in setting up a State structure like the dissuasion committees in Portugal, which administer its system and has the power to impose a broad range of sanctions.

The report said: “Within the Irish legal system it is unlikely that the powers to impose such wide-ranging sanctions can be held in Ireland outside of the Courts.”

The group said that in light of the “significant difficulties” with a decriminalisation approach in Ireland, it would not recommend the Portuguese model as appropriate in an Irish context.

Expert research

The report reveals that the group had commissioned international experts to research approaches taken in Ireland and other jurisdictions on personal possession.

These experts looked at nine countries and six different approaches, ranging from depenalisation (no sanction applied) to police diversion to decriminalisation.

The researchers suggested that “any alternatives come with risks” and that it was not possible to give a definitive answer on possible outcomes of each approach.

“However, they also emphasised that the current approach places significant costs and burdens on the citizen that are not offset by any reduction in health or social harms,” said the report.

Regarding the researchers’ recommendation, the report said: “The researchers suggested that consideration could be given to a hybrid approach given Ireland’s relatively high levels of cannabis and heroin use, for example, combining ‘depenalisation of the most minor drug possession offences and decriminalisation with targeted diversion for those offenders who are more likely to need it’.”

It said the researchers postulated that this hybrid approach would reduce costs to criminal justice system, would not lead to increases in drug use, and would provide pathways to treatment and other services.

But the report said: “The working group noted that there was not a lot of evidence about the approaches mentioned above and their impact on organised crime.

“The possible link between changing drug policies and increased organised criminal activity was raised within the group as a concern. The researchers were not tasked with considering this impact in their study, but they did discuss the lack of direct evidence with the group.”

Group decides

The group decided against adopting the recommendation of the researchers: “Having accepted that under Ireland’s legal system decriminalisation involves the removal of the offence the working group could not consider this approach as appropriate in the Irish context.”

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The group came up with three options for the Government:

In all options, the criminal offence would remain. The group also decided against the setting of thresholds. Citing estimates from the Department of Justice, the group estimated the first option would cost gardaí €4.29m per year to operate, compared to the €1.17m it costs gardaí to operate the current criminalisation model.

Option two would cost gardaí €5.15m, while option three would cost gardaí €2.24m and the health service €4.87m (total €7.11m). It said the HSE has already trained 5,000 frontline health workers in the SAOR model — a public health tool for a brief intervention (a structured conversation).

The report said this model had “shown to be effective” in other jurisdictions. Attendance at the intervention would be mandatory. A person who refuses to attend “would be liable to prosecution” for possession. Any onward referral to drug treatment would be voluntary for the offender.

This scheme would require new legislation and a conditional garda caution scheme. The report said the three options would lead to a reduction in people prosecuted and imprisoned but that these savings were not factored into the costs.

It said that the current cost to the justice sector annually from the criminalisation of possession was just over €7m — but this did not include health costs.

The Sheehan report was sent to Health Minister Simon Harris, Justice Minister Charlie Flanagan, and Minister of State Catherine Byrne, who is in charge of the drugs strategy.

Their proposals, based on the report, have been due before the Cabinet for some weeks now. Tomorrow is the last Cabinet meeting before the summer break.