The Government should get a detailed legal opinion on a determination that decriminalisation of drug possession was not legally possible, a drug charity has said.
The Ana Liffey Drug Project, a voluntary group in favour of decriminalisation of possession for personal use, said that such a legal opinion was required to ensure that the analysis was “robust and correct”.
The conclusion was made by a State expert group appointed to examine alternatives to possession of drugs.
The Government accepted its conclusion.
The report and the Government’s proposals were detailed by the Irish Examiner in the last week.
In its analysis of the group’s report, Ana Liffey said it was clear the group recognised that Ireland’s stated drug policy was “health led”, that there was a global shift to such an approach, and that the bulk of people consulted here were against criminalisation for simple possession.
It said it was clear the group “struggled with how these findings could translate into workable policy in an Irish context, setting forward a legal view that the Irish common law system does not support the removal of the offence of possession, entirely”.
The working group said that for an offence to be decriminalised in Ireland it had to be removed from the Statute Book by amending Section 3 of the Misuse of Drugs Act so that it was no longer an offence.
The group said this would amount to “de facto” legalisation within unintended and undesirable consequences.
The working group said that still allowing gardaí to conduct searches on public health grounds where drug possession was no longer an offence could give rise to “constitutional and legal difficulties”.
Ana Liffey said: “These points raise valid issues, and are worth investigating further. However, we would encourage governments to seek a detailed written opinion on the law in this area as part of any policy development in this area to ensure that the underlying analysis is robust and correct.”
The group gave three options to the government: extending the adult caution scheme to include simple possession; introducing a multiple adult caution scheme and a health diversion scheme for a minimum of three offences.
Ana Liffey said the adult caution options “clearly perpetuate a criminal justice approach” and were “incompatible” with the health led approach.
It said the third option had “much to commend it” but recommended removing the condition that referral to a health intervention be “mandatory”.
The charity said a compulsory system would be an “unnecessarily expensive burden” as most users don’t have serious health issues.
It said the consequences of failing to attend the referral should not be criminalisation, as proposed. It said there should be no limit for the number of referrals a person could get.
The Government’s proposals stipulate only one referral to the health diversion and that a second offence could get a discretionary adult caution.