Criminal convictions for drug possession have 'serious and life-long consequences', says Catherine Byrne

Criminal convictions for drug possession have 'serious and life-long consequences', says Catherine Byrne
Keith Byrne

The precarious position Keith Byrne finds himself in highlights the issue at the heart of developments here on how to deal with personal drug use.

Now 37, the whole life of the married father from Cork is up in the air, as he appeals his deportation from the US.

The Fermoy man has lived in the US since 2007 and overstayed his visa after meeting future wife, American Keren Zaga.

He was denied a visa because of two criminal convictions, resulting in fines, that he has from his early 20s in Ireland for possession of cannabis for personal use.

As his wife Keren said: “Those little incidents have followed him here and destroyed his bid to become a citizen.

It’s unfair that something so small should have an impact.

At the launch of the Government's plans on reforming the State's approach to personal drug possession, drugs strategy minister Catherine Byrne said these convictions have “serious and life long consequences”, affecting not only the ability to travel abroad but also employment and education prospects.

The State working group examining alternatives to the criminalisation of drug possession, upon which the Government based its plans, said as much.

It said the impact of a criminal record was “especially devastating” and it went on to recommend that the current laws on erasing criminal convictions be eased and extended so that all drug convictions (not just one) can be wiped and that the time period between conviction and erasing be cut from seven to three years. More on this anon.

The report laid out three options that it recommended: extend the current adult caution scheme to include drug possession (for first and possibly a second offence); introduce a multiple adult caution scheme (that could allow for more offences); and referral to a health diversion scheme.

Crucially, the group said there should be at least three referrals by gardaí to the health intervention permitted.

“A minimum of three times is suggested because substance misuse is often a recurring condition and each person's recovery journey is different,” the working group report said.

The group was clear that drug possession for personal use should not be decriminalised, not least because our legal system could not make it a 'non offence' without, by implication, effectively making it legal.

It said that if possession was no longer an offence it would legally be very difficult for gardaí to search a person they suspect to be in possession of drugs to determine if the drugs are for their own personal use or for sale.

And if gardaí could not search them how could they refer people to a health intervention?

At the launch, Health Minister Simon Harris said the group had examined the issue of decriminalisation seriously, but felt it would reduce the ability of gardaí to help people and “lead to de facto legalisation”.

The Ana Liffey Drug Project has asked for a detailed legal opinion on this determination.

The report and the Government's proposals, which were revealed in detail in the Irish Examiner last week, were published on Friday by Mr Harris, Minister of State Byrne and Justice Minister Charlie Flanagan.

Mr Harris heralded a “new era” in the State's approach to drugs, saying it was “clear the war on drugs hasn't worked”.

The new approach would be humane and health-centred and was about giving people a “helping hand, not handcuffs”.

Mr Flanagan, while echoing the change, reminded people things hadn't completely changed.

“Criminal sanctions will very much remain,” he said. “This is not about decriminalisation. This is not about accepting drugs.

"We are giving the message to people, to young people in particular, that it is not cool to take drugs.

"What we are doing here is ensure a health-led approach, rather than a unilateral criminal justice approach."

And that's it – yes, for the first offence, and most likely for a second offence, a person caught with drugs deemed by gardaí to be for their personal use will not be arrested and face the courts.

But get caught a third time and, to coin the well know phrase, it's effectively a “three strikes and you're out” approach.

As various community and voluntary groups working with users and young people say, two chances are not going to be enough for many users, particularly those with an addiction.

Asked why the Government cut back on the group's recommendation that people have at least three throws of the dice, Ms Byrne said the Government “didn't want to take powers away from guards” by people having six or seven chances.

“That would be wrong,” she said, “that's why we stuck to first and second time”.

Mr Flanagan pointed out that even the second chance “depended on the judgement of gardaí that the drugs are purely for personal use”.

This is one aspect of the plan likely to come under strain and scrutiny once the system kicks in, said to be by autumn 2020.

Ms Byrne said that while some people believed they had not gone far enough, they felt they "got the balance right".

Asked why the Government rejected the group's recommendations on spent convictions, Mr Flanagan said he acknowledged there was an issue and said his department needed to do “more work on that” to make sure that implementing the report's recommendations didn't have “unintended consequences”.

Questions remain about the scheme: It will be mandatory for a person caught by gardaí to attend the health services, if referred.

Criminal convictions for drug possession have 'serious and life-long consequences', says Catherine Byrne

Failure to do so can result in the guard prosecuting the person in the courts.

But the health services can only inform gardaí the person has attended with the person's consent.

Many groups, who operate on the frontline have given a mixed response, saying it was a “stepping stone”, but too restricted and even contradictory.

Limitations and questions aside, the Government's plans mark a significant change in the State's approach to drug possession – developments unimaginable years ago.

The plans have the backing of the police and legal arms of the State, as well as the health services.

That at least should help actual implementation – historically the key failing of Government reports and initiatives.

The plans have not gone as far as many had hoped. But, psychologically, official Ireland may have crossed a Rubicon.

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