Drug organisations in favour of decriminalisation have described as a “move in the right direction” a legal change allowing gardaí to caution, rather than charge, people caught in possession of cannabis for their own personal use.
The development, announced by Garda HQ today, applies, primarily, to a first offence and only to cannabis.
Under the changes to the Adult Caution Scheme, gardaí will still retain their discretion to prosecute if they believe it is not appropriate in the circumstances to give a caution.
The change in relation to cannabis possession has been a Garda/DPP proposal for some four years now and runs parallel to a wider reform of Government policy towards possession of all drugs.
But unlike the recommendation of the 2016 Working Group on Alternatives to Prosecution (WGAP) and the August 2019 Government Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use – which recommend changes apply to all drugs – the Garda directive solely applies to cannabis.
Anna Quigley of the Citywide Drugs Crisis Campaign, which has advocated decriminalisation of possession of all drugs, said: “Citywide has a clear position that people who are in possession of drugs for personal use should not be criminalised, as the evidence shows that criminalisation has no positive impact and can have a lot of negative impact on people’s lives.
"This change to the Adult Caution is moving in the right direction, but obviously given our position we would like to see more significant change in the current criminal status of people who are in possession of drugs for their personal use.”
Tony Duffin of the Ana Liffey Drugs Project said: “I welcome the inclusion of the possession of cannabis into the Adult Cautioning Scheme. It is a step in the right direction.”
He added that people should remember that an individual’s drug use is a health issue: “It is important to keep moving towards a position where people who use drugs never face negative legal consequences for personal drug use, regardless of the substance.”
“Nonetheless, we welcome any movement away from punishing people who use drugs for that fact alone. It is important to give people every opportunity to minimise the risks that their drug use presents, and criminal prosecution is not an effective tool in preventing drug use.”
In August 2019, the Government announced a landmark change in policy to possession of all drugs.
Under this system, people caught for the first time by gardaí in possession of drugs for personal use are to be referred to a health intervention.
Those who are caught a second time will be subject to garda discretion, who may divert them again to the health services.
For a third, or subsequent offence, the person will be arrested, as currently, and processed through the criminal justice system and possibly receive a conviction.
This new system is still being developed and has not yet become law.
Until then, the changes announced by Gardai will apply. In a statement, Garda HQ said the new position applies from December 14, last Monday, and does not relate to any possession offence before that date.
Other changes related to an extension of the scheme to more public order offences.
The statement said: “The Adult Cautioning Scheme was introduced to An Garda Síochána in 2006 having been approved by the Director of Public Prosecutions.
“An Garda Síochána have collaborated with the Director of Public Prosecutions and an expansion of the Adult Cautioning Scheme to include four additional offences has now been approved.” It said the offences are:
- *Offences contrary to Section 13 of the Criminal Justice (Public Order) Act 1994 (Trespass in a manner likely to cause fear).
- *Offences under Section 21 of the Criminal Justice (Public Order) Act 1994 (Control of access to certain events).
- *Offences under Section 3 of the Casual Trading Act 1995 (Casual trading without a licence or contrary to the terms of the licence).
- *Offences under Section 3 of the Misuse of Drugs Act 1977/84 (Simple possession). This will relate to the possession of cannabis and cannabis resin only. No other controlled drugs are permitted under the Adult Cautioning Scheme.
The statement added: “An Adult Caution for any of these four offences can only be considered in respect of an offence committed on or after the 14th December 2020 and cannot be applied retrospectively.
“An Garda Síochána will continue to work closely with the Director of Public Prosecutions in relation to all elements of the Adult Cautioning Scheme.” Adult cautions are applied, generally, only for those caught for the first time, and not for any subsequent offence.
Under the scheme, those caught must accept their guilt and understand what a caution is and give their consent to being cautioned.
The Adult Caution document states: “The investigating member must consider the type, quantity and value of the drug and whether in all the circumstances the offence disclosed amounts to simple possession.”
This would leave some discretion to the member as to what quantity would constitute possession and whether, for example, the drugs seized were broken up into separate deals, which would suggest supply.
The document also states: “The final decision on whether a caution may be administered under the terms of this scheme rests with the District Officer or relevant Superintendent.”