Judge's drugs diversion programme helping cocaine users avoid criminal conviction
Judge Olann Kelleher: 'This programme allowed the participants to reflect on their drug use, What we’re trying to do is get in early and intervene and prevent people from developing any kind of significant drug problem.' Picture: Dan Linehan
It had got to the stage that Judge Olann Kelleher was racking his brain trying to figure out what to do with the latest drug cases coming before his court.
Some six years ago, streams of young men were being charged with possession of cocaine for their own personal use.
Whereas someone caught in possession of cannabis for personal use would have to come before the courts three times before they could face a possible jail term, for cocaine it could happen on the first occasion.
“I took a bit of a different view because I had given lectures in the university, in UCC, and in schools about the consequences of a drug conviction and they didn’t realise the consequences,” Judge Kelleher said.
“I was amazed they were so naive, so completely naive. That’s what motivated me in one sense [to do something].
“It’s not just having a criminal conviction,” he said, “it affects your CV and what jobs you can apply for and even what university courses you could complete”.
He said the situation was “troubling” him greatly.
“I was thinking about this day and night and thinking ‘what am I going to do with these people’ and in a sincere way,” he said.
So, one day, he addressed the district court in Anglesea, Cork city.
“I just did it from the bench,” he said. “I said we have a fierce problem with cocaine. I said ‘this is what I’m going to do now. I’ll give you an opportunity to avoid a conviction’. And, I told solicitors so they could advise their clients.”
His idea was that those charged could pay €750 to go towards Cork Local Drugs Task Force as long as they agreed to be referred to health workers and get help.
Judge Kelleher, who recently retired after 14 years on the bench, said that he has discretion under the Probation Act Section 1.1 to apply the probation act, under which the defendant doesn’t get a conviction as long as the conditions the judge sets are met.
Typically, it meant Judge Kelleher giving the defendant two months to pay the €750 and to attend a drugs counselling course. If they did that, including a formal letter stating that they attended and did everything required, no further action is taken.
The finding of the court is only used again if the person comes before it again on a separate charge.
In May 2019 the HSE was contacted and got on board. That October, the HSE drew up a proposal that the €750 be used to directly hire a drugs counsellor and Coolmine drug project was awarded the contract.
“Judge Kelleher wanted to do something different,” Joe Kirby, HSE Social Exclusion Manager for Cork and Kerry said. “We started using our existing resources initially but the number of referrals became huge so we decided we needed a dedicated worker to do this.”
The only conditions Judge Kelleher attached was that it was possession for personal use, and not supply, and that the person had no previous convictions. If there was a minor, non-drug-related, previous conviction, he also might consider it.
The response has been a “huge success”, Judge Kelleher said, citing research conducted by Trinity College Dublin on the HSE data.
The figures show a total of 189 people were diverted from his court between June 2019 and March 2023. Of these:
- 95% were male;
- Average age 20-30;
- 93% attendance;
- 81% employed;
- 7% students;
- 82% cocaine main problem drug;
- 29% cannabis secondary problem drug;
- 68% no secondary problem drug;
- 7% multiple/polydrug use;
- 10% previously in treatment;
- 11% needed onward referral to specialist health service.
Mr Kirby said the overall number of referrals would have been “significantly more” were in not for the Covid pandemic, when pubs, bars and music festivals were closed.
But since the end of restrictions, the reopening of venues and the restart of large music festivals the numbers have increased.
Judge Kelleher roughly estimates he was seeing 20-30 cases per week in the last year or so and by the time the next evaluation is conducted the numbers are expected to be significantly higher.
“We have 93% attendance, so people are motivated, they want to engage with the programme,” Mr Kirby said.
“It’s a cohort of people who wouldn’t normally come to our services.”
He said the benefit of any health screening programme, irrespective of what the issue was, was capturing and engaging with people who may not traditionally turn up at a mainstream health service.
“This programme allowed the participants to reflect on their drug use,” he said. “What we’re trying to do is get in early and intervene and prevent people from developing any kind of significant drug problem. As you can see from the figures 11% are referred to a specialist service.”
Judge Kelleher said none of the people who came before him under the scheme have returned with another charge.
“I would take a bit of pride in it, but it is a fairly simple idea,” he said.
His programme reached national attention when he, along with Mr Kirby and Declan O’Riordan of Coolmine, appeared in a video presentation about the programme before the Citizens’ Assembly on Drugs.
“The reaction has been phenomenal,” said Judge Kelleher. “From a personal point of view, judges have contacted me saying it’s a great idea.”
He points out that each judge is independent and because his programme is an informal, discretionary one, it is up to each judge to decide if it is for them or not.
“We’re all independent,” he said. “If I go around and ask every judge to do this, they are notoriously conservative and they wouldn’t do it — but I would encourage them.”
He said that even from a judge’s own perspective it speeds up cases in their courts and instead of having 20 separate cases in front of them, to hear individually, they could be dealt with together.
“I used to listen to a solicitor talking about he’s [the defendant] a great guy and his mother and father are upset and he won’t be able to do this or that [if he gets a conviction]. And you multiplY that 20 times. Now, I only say what I have to say once and the solicitors do the talking for me with their clients in private.”
His project received a major judicial endorsement at his retirement function from the President of the District Court, Judge Peter Kelly.
Judge Kelly said: “It’s something that should be replicated across all the cities and towns of our country because Olann has been responsible for diverting at least 189 young cocaine users away from convictions and all that that entails and, for that alone, he deserves to be recognised and complimented.”
Judge Kelleher said: “I think there was around 10 district judges there. A few judges have come up to me and I told them what it involved and they all said ‘we’re going to do it’.”
His replacement in Anglesea St courthouse is due to commence in a couple of weeks and it is expected that the scheme will continue under the new judge.
Mr Kirby is careful not to be seen to be interfering with the independence of judges, but did stress the HSE was there for any judges willing to continue, or expand, Judge Kelleher’s work, or any other judges who might want to start such a project.
“We fully support this project and we’re here to work with any judge who wants to engage and expand this project,” Mr Kirby said. “We are ready and waiting but obviously the decision is with the judiciary. They are all independent. But the model is fantastic.”
Mr Kirby said the cases Judge Kelleher was responding to reflected a general population trend in relation to cocaine, including in Cork and Kerry.
“Alcohol is the number one presenting substance in terms of harm and it’s been consistently number one,” Mr Kirby said. “But cocaine is number two. Absolutely. There is a significant increase in prevalence and a significant increase in presentations.”
He said HSE Cork/Kerry had to recruit specific cocaine workers because of the level and number of presentations they were receiving.
And, in response to the demographics of the users, he said they’ve had to set up additional services in the evenings in the Coolmine hubs to accommodate people who are working.
Judge Kelleher, who has long and senior involvement and interest in sports — from rugby, to football and cricket — said his contacts in sports have told him how young sportsmen often shy away from drinking alcohol, as it would affect their gym-physique, but were taking plenty of cocaine when socialising.
He said alcohol remained a significant problem in the district courts and said it was “more of a problem than cannabis”.
He said some people coming before him on alcohol-related cases were typically “very decent, very mannerly” when he passed them on the street, but said they just had a problem with drink.
Judge Kelleher mentioned one case: “I mean, it’s an horrific life. One guy, he knows I like sports and he loves sport and always shouts at me. Once, he couldn’t get a bed [in a homeless shelter] and he was lying on the ground and he got raped and the fella [that did it] got seven years. That’s how tough it is out there.”
He said that while not all homeless people are alcoholics, many are homeless because of their drinking.
“They come into court, the guards are told to arrest them, by politicians and leaders,” Judge Kelleher said. “They bring them into me. They’re meant to get a month in jail, that’s the maximum they can get. What’s the point of that? It costs something like €80,000-€90,000 to pay for a prisoner for a year. Wouldn’t you be better off with two social workers out on the street helping them?”
He said a number of people who are alcoholics are homeless because “they’ve lost their house or their flat”.
He said the mental health of people on the street, and those coming before him, was a major issue.
“I don’t think that people with mental health problems are got to at all, a lot of them. Not early enough. As I just said, would not be better off having a few social workers than keeping a fella in jail?” He said similarly with heroin, life on the street was very tough.
“I’d pass people on the bridge and they’d say hello to me, they would be begging,” Judge Kelleher said. “One fella was into soccer and he had a fair few convictions. One night I was getting the bus and he said hello and we were talking about Cork City [football club] and we had a laugh.
“When I was getting on the bus, he gave a big roar in front of everyone and said ‘Judge Kelleher, I’ll see you next Tuesday [in court]. He was only 38 and he died two weeks later. There’s a great sadness there.”
On the positive side, he said the number of heroin-related cases coming before him has “dropped significantly”.
But he expressed some concern about reports from abroad that fentanyl and other extremely strong synthetic opiates — which mimic, but are far more potent than, heroin — may fill an expected gap in the heroin market caused by the crackdown on opium production in Afghanistan.
“If that comes in and it's cheap it will be a problem,” he said.
Mr Kirby echoed recent comments from HSE national office that there have been no signs yet of fentanyl here, either from garda seizures or hospital tests, but that an early warning system was in place to alert health authorities to any such emergence.
The interview with Judge Kelleher preceded last weekend’s recommendations of the Citizens’ Assembly on Drugs, the key one being that Ireland should adopt a “comprehensive health-led” approach that would include some kind of decriminalisation.
It said the legal mechanism to do that would need to be determined by the Oireachtas.
Judge Kelleher does not believe Ireland’s criminal laws in relation to possession of drugs for personal use should change, saying there was already a “safety valve” regarding personal possession of cannabis.
But he said he did think more needed to be done in relation to court diversion projects: “That’s why I did this diversion programme because the consequences are so great from conviction — people just don’t realise that.”
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