Wednesday, 11 December 2019
Misuse of Drugs (Amendment) Bill 2019: Second Stage [Private Members]
The Minister sends his apologies - he is in the Seanad - but he would like to thank Deputy Curran, who has brought this Private Members' Bill before the House, for highlighting the serious issue of the involvement of children in criminal wrongdoing in respect of controlled drugs.
The Bill seeks to amend the Misuse of Drugs Act 1977 to criminalise the purchase of a controlled drug from a child and criminalise the act of causing a child to be in possession of a controlled drug for sale or supply. The grooming of children by those who control criminal activity and the identification of crime networks as a separate and plausible risk factor underlying criminal offending by certain children are extremely serious matters. No one could disagree with Deputy Curran's objective, and the Government will therefore not oppose the Bill today.
However, while the Minister appreciates the Deputy's good intentions, there are significant legal, policy and operational issues with the Bill as drafted. Our intention is to work with the Deputy to deal with those issues, as he suggested himself. The Bill proposes to make it an offence to purchase or acquire a controlled drug from a child. This would appear to be an offence already under existing criminal law, whereby if a person purchases or otherwise acquires a drug from a child he or she is then in possession of the drug and will have committed an offence under section 3 or section 15 of the Misuse of Drugs Act 1977, depending on the quantity involved. The existing offence does not require physical custody of the drug and the prosecution can prove constructive possession, for example, when drugs are purchased online but not delivered into the hands of the accused. In the new offence proposed here, additional proofs may be required which are not required to prove possession, and therefore this offence might unintentionally be more difficult to prove than the existing offence. The Bill proposes to make it an offence to cause a child to be in possession of a controlled drug for sale or supply. However, a person causing a child to be in possession in this way would have to supply the child with the drug, which is already an offence under section 15 of the Misuse of Drugs Act 1977. The Bill proposes that it shall not be necessary for the prosecutor to prove that the drug was a controlled drug. However, this would seem to be a fundamental element of the offence and therefore necessary to proving the guilt of the accused.
Significantly, the Bill provides that it shall not be necessary to prove that the person knew that the child was a child. This potentially gives rise to constitutional concerns. The provision would appear to be seeking to create a strict liability element to the offence, which on the face of it is problematic given case law requiring the availability of a defence of honest mistake as to age in sexual offences trials. It is also worth noting that, with regard to fines and terms of imprisonment, the penalties proposed are less severe than those currently available under section 15 of the Misuse of Drugs Act 1977. In this regard, the sale or supply of drugs to a minor child as already provided for in existing law would be an aggravating factor, and the sentencing judge could take this into account in the penalty imposed.
These proposals brought by Deputy Curran sit within a wider context of the grooming of children to commit various types of crime, not just drug-related crime. The Deputy will be aware of research published today by the University of Limerick in this area which the Minister is considering carefully. Other relevant research about the influence of criminal networks on children in Ireland includes the Greentown report which identifies crime networks as a separate and plausible risk factor underlying criminal offending by certain children. This report outlines how the influence of criminal networks increases the level of offending by a small number of children and entraps them in offending situations. As well as analysing how criminal networks recruit and control often vulnerable children, the Greentown project has attempted to identify the scale of the problem in the State and is now designing a bespoke form of intervention, which will be trialled on a pilot basis commencing next year. This work has been assisted by an international team of experts on crime and criminal networks, together with Irish scientific, policy and practice expertise in child protection and welfare, drugs and community development, strongly supported by key State agencies, particularly An Garda Síochána. The intervention is designed to reduce and disrupt the influence of criminal networks on children in a local area and provide supports for the positive development of the affected children.
Government policy on drugs and alcohol is set out in the national drug strategy which is entitled Reducing Harm, Supporting Recovery - a health response to drug and alcohol use in Ireland 2017 - 2025. The strategy reflects a change in attitudes to substance misuse and promotes a more compassionate and humane approach to people who use drugs, with addiction treated first and foremost as a public health issue and is underpinned by the key values of compassion, respect, equality and inclusion. Children living in communities with higher prevalence of problem substance use are at increased risk of developing problems themselves. For some children, there are early identifiable behaviour patterns that indicate possible problems with substances later in life. The new youth justice strategy, which I am leading, will align with the objectives of Better Outcomes, Brighter Futures and the next iteration of the national policy framework for children and young adults. It will address a wide range of issues connected with the involvement of young people with the justice system and the steps that can be taken by all agencies, working with community partners, to help to keep young people out of trouble. These include the Probation Service and its community-based initiatives, the bail supervision scheme developed by the Department of Children and Youth Affairs and other community-based initiatives and Garda youth diversion projects that my Department funds that work with harder to engage young people. The Greentown initiative was already mentioned, as was the youth version of the joint agency response to crime, YJARC, which seeks to intensively manage the most prolific young offenders.
The prosecution of any new offences involving incitement or coercion of children would not be straightforward and there are likely to be difficulties with the workability of such law in practice. Therefore, proposals for new legislation in this area, such as those proposed by Deputy Curran in his Bill, must be considered with the utmost care, taking cognisance of the views of prosecutors, law enforcement and other experienced professionals working in the area when framing any such proposals. Irrespective of what changes we might make to the law, the fact remains that attempting to deal with the exploitation of children for any criminal purpose requires a carefully considered approach, involving consideration of prosecutorial, operational and other service delivery issues, as well the strict letter of the law. The Department of Justice and Equality will be considering the most appropriate approach to countering the grooming of children for criminal activity via engagement with An Garda Síochána, the Office of the Director of Public Prosecutions and the Department of Children and Youth Affairs.
While there are significant legal, policy and operational issues with the proposed Bill, as drafted, the Minister considers that the intention behind the Bill has merit. The Minister will be happy to have his officials to engage with the Deputy to talk through and tease out these issues to assist the Deputy with his engagement with the Oireachtas legal advice and drafting services, in order to ensure that these difficulties can be addressed prior to the Bill progressing to Committee Stage. It has been mentioned here that there is no typical drug user and that the gardaí have been very successful recently. We all join in thanking them and wishing them well in their work. The number of seizures by An Garda Síochána is well up on other years which indicates that there may be an underlying problem in that when there is no money available in the community and society, a lot of funding then goes to the purchase of illegal drugs. Reports indicate that people who use drugs as a leisure activity may be people who should know better. They are fuelling the so-called drugs trade. It is not just people with drug addiction that are the issue. Many people in society use these controlled substances and have the money to spend on them. Cocaine has been mentioned as a significant issue and I agree with the Deputy who mentioned that. This is not a simple issue but the use of children is deplorable. We are very aware of it. Much work has been done in the Greentown study and by YJARC. I thank Deputy Curran for bringing forward this matter for debate. It is an important issue that we should all work together on to counteract the negativity involved.