This is the most serious offence under the entire Misuse of Drugs legislation. This offence (section 15A Misuse of Drugs Act) is made out where the drugs seized have a “market value” (a highly nebulous term) of €13,000 or more. If you are found in possession of drugs exceeding this amount of money, a mandatory ten-year jail sentence is the penalty involved. The imposition of this penalty is dependent on a number of factors but the history of where this offence came from is important.
This particular piece of legislation was introduced in 1999. At the time, Ireland -and in particular Dublin- was becoming overrun with drugs disputes between rival gangs that had escalated into murders. It was also only 3 years after the murder of journalist Veronica Guerin by a criminal drugs gang and the feeling amongst the public (driven by media sensationalism) was that drugs gangs were practically running the country. The Criminal Justice Act of 1999 was introduced and it saw the introduction of a powerful new piece of legislation: Sale and Supply of Drugs with a value of IR£10,000 (€13,000) or more.
The Response of the Drugs Gangs
What this new piece of legislation was supposed to do was to target those who were organising criminal gangs that were distributing huge quantities of drugs throughout the country. The only problem with this legislation was that because it was much publicised in the media, it came to the attention of the bosses of the crime families. These people had risen to the tops of their organisations through ruthlessness and cunning and they had no desire to be found in possession of drugs that could see them imprisoned for at least 10 years. A new approach was clearly required.
The approach they adopted was “distance”. The offence outlawed possession of drugs with a value in excess of €13,000. The operative word was “possession”. Obviously, the gang leaders would have to ensure that they avoided being in possession of these substances at all times. That wasn’t hard but sophisticated criminal enterprises need much more than one leader; they need a network of ruthless captains and enforcers as well. It was just as important that these individuals were not found in possession of the substances either. But significant quantities of drugs still had to be moved so it was important that somebody be found to store these significant quantities before they were moved on to their next destination.
The solution the drugs gangs fixed on was simplicity: get strangers, people unconnected to drugs gangs but who were desperate for money, to store the drugs, at least temporarily. It was a perfect solution to a seemingly insoluble problem and indicates how innovative organised crime is. Who better to store or transport the drugs than people with little or no previous convictions? They would not own the drugs, would get no share in the profits of them, but would receive a small monetary sum to store a consignment in their property until somebody came along to take it from them and move it to the next destination.
An added bonus was that these people would be largely unknown to the Gardai so would attract little or no attention from the Garda drugs taskforces. But the Gardai have confidential informants on their books and some of these informants pointed the finger at this new breed of individual now being recruited by these innovative criminal enterprises.
The Response of the Judiciary
Suddenly in 2000 and escalating quickly, dozens of individuals began to be prosecuted in the Circuit Court for section 15A offences. Nearly all had similar backgrounds: male, unemployed, living alone, little or no previous convictions, not connected to criminality, fully cooperative. These men were being prosecuted for possession of drugs where the law stated that a mandatory 10-year prison sentence should be handed down by the courts. This would have presented Circuit Court Judges with a real conundrum.
Firstly, Judges bristle at being told what to do. They especially resent being told what to do by politicians who introduce draconian legislation largely to burnish their “tough on crime” credentials before the electorate. Secondly, there is a Constitutional imperative: the Separation of Powers. Put simply, the Government is not allowed to interfere with how the Judiciary do their jobs. The Judiciary are independent of the Government and this independence is sacrosanct. The principle of the independence of the judiciary is a cornerstone of democratic countries around the world and its erosion is indicative of more authoritarian regimes.
The introduction of section 15A could have been construed as an example of where the government was effectively telling the Judiciary what to do: hand down 10-year sentences to people. But the government knew that the Judiciary would be opposed to this. They especially would not like this as it would certainly offend their inherent sense of justice and decency.
Was it right that people with no connection to criminal gangs and who had only stored quantities of drugs for short periods of time in return for a nominal amount of money be sent to prison for 10 years? Yes, these people had committed a very serious criminal act but they were surely not what the Government had in mind when they framed the section 15 A legislation. When this legislation was being drafted, it was intended that drug lords and their lieutenants would be the target, not the poor and desperate.
In anticipation of these concerns the legislation included a significant section which allowed the Courts to use their discretion if they felt that -having regards to the particular circumstances of the case- it was unjust to impose a 10-year sentence.
In practice what happens is that once a person pleads guilty or is found guilty of a section 15A offence (the overwhelming majority plead guilty) the trial judge will usually declare that this offence is one which attracts a sentence of 10 years imprisonment. This is the starting point.
They then embark on an investigation of the offence to see whether there are mitigating circumstances that would justify reducing the sentence. The factors which can be looked at here are not exhaustive but include such things as whether a plea of guilty was entered immediately, whether the defendant had previous convictions for drugs offences, whether they cooperated (were of “material benefit”) to the Gardai in their investigations, whether they were in fear for their safety or under duress, whether the offence was a “once off” because the defendant was “down and out”, whether they were a mere “bag-man” or “mule” getting relatively little money for it, their age, health or family status.
Of primary importance at this stage -the sentencing stage- is an understanding of what the main prosecuting Garda will say in the witness box. When a case comes for sentence, the synopsis of the case is usually given to the court by the main prosecuting Guard who is usually the Guard who investigated the case.
Your legal representatives should make contact with them and agree (if possible) a “form of words” to be used when he is giving his evidence before the court. In practice, most courtrooms and the corridors outside are perpetually alive with the sound of intense conversations between the prosecution and the defence representatives about what the Guard will say in the witness box. Often this process involves discovering whether something complimentary can be “injected” into the Garda’s evidence so that it reflects positively on the defendant. On other occasions it involves an examination of whether some negative comment or attribute that the Garda had intended to state in evidence might be deleted entirely, or if it can’t, at least watered down.
In practice these conversations on an agreed form of words to be used are critical to the outcome of the defendant’s case as the Judge will always be strongly led by the attitude and disposition of the Garda towards the accused person. If the Garda is hostile towards the defendant, this will be evident from his demeanour in the witness box, will be noted by the Judge and a prison sentence is a distinct likelihood.
However, if the Garda is ambivalent -as many are- or can be encouraged to adopt a more positive attitude towards the defendant, this very often can mean the difference between a long sentence or a short sentence, or even a fully suspended sentence.
Patrick Horan, 2020