Drugs law plans ‘may be against Constitution’
Claire Hamilton of the Dublin Institute of Technology said it was possible someone could challenge the provisions in the courts.
The Criminal Justice Bill 2007 removes any discretion judges have regarding the mandatory minimum sentence of 10 years in certain drug trafficking cases.
“It does appear, according to the legislation, that courts will have no discretion in certain circumstances; where drugs have a value of over €500,000 or if it is a second offence, the 10 years has to be imposed,” said Ms Hamilton.
“This raises constitutional issues. There’s possibly a conflict with the constitutional principle of proportionality, which guarantees fair trial provisions. It’s possible there could be a challenge on that basis.”
Details of the proposed legislation emerged late on Monday night, with the Department of Justice indicating yesterday it would be formally published today.
Ms Hamilton said while critics of the bill expected further tightening of the law on sentencing, they did not expect such a radical shift.
But she said Justice Minister Michael McDowell had probably come up with the proposal following consultations with the Attorney General.
“To be successful, a challenge would have to show the sentence was disproportionate. The minister is probably banking that in a challenge the courts would say the sentence isn’t disproportionate. But certainly, in my opinion, a challenge could be taken.”
She said the value of the drugs, at over €500,000, would be a “very serious aggravating factor”, but said it was not only one factor.
She said there can be significant mitigating factors, including where the defendant is a drugs mule.
“The courts have already circumvented the provisions on drug sentencing. The courts know each case is different. Judges have been taking into account individual circumstances, even in cases where the drugs have a high value.
“The Oireachtas can’t legislate for every case. That can lead to injustices in individual cases.”
She said there were also serious objections on other proposed changes in the bill, including those regarding the right to silence.
Ms Hamilton further criticised the way the bill was being rushed through the Dáil, a point echoed by Labour party justice spokesman Brendan Howlin.
“My plea is that this bill is 128 pages long. It will shift criminal justice systems in this country. We need to have proper scrutiny time in the Dáil so that we do not have to, as we did last week, revisit rushed legislation. This is far too important an issue,” said Mr Howlin.
The minister has said the proposals come against the background of gangland crime and that he believed the provisions were proportionate and reasonable.
A garda, of chief superintendent rank, can give evidence requesting an accused not be granted bail.
* Electronic monitoring of people granted bail.
* The prosecution can appeal a decision of the district court to grant bail.
* A sentence for an offence committed while on bail must be served in addition to the sentence for the original offence.
In crimes related to organised crime, court must impose sentence not less than 75% of maximum sentence.
Courts to have an extended ability to draw inferences from a refusal to account for movements, objects etc when questioned.
* Inferences can also be drawn by an accused’s failure to mention facts which they mention later in court.
- Judges to impose, with exception, minimum 10-year sentence if drug value exceeds €500,000.
Only exceptional cases to escape the minimum jail terms.
Justice Minister empowered to appoint three members.
Gardaí to have the power to detain suspects for certain offences for seven days. Gardaí can hold suspects for two days before going to court to seek a further detention of three days, followed, after another application, by a final two days.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
