Currently, Ireland is at a pivotal point in drug policy. A working group has been established under the National Drugs Strategy to consider the approaches taken in other jurisdictions to the possession of small quantities of drugs for personal use with a view to making recommendations on policy options. This is an important issue, and the purpose of this paper is to ensure that there is a strong civil society contribution to what is a national policy discussion of significant importance, as well as providing an evidence source on the adoption of a health led approach to the possession of small amounts of drug for personal use in the Irish context. The focus of this paper is on the decriminalisation of simple possession only, which, it is important to stress, is a discrete issue and is distinct from broader policy debates concerning the legalisation or regulation of drug markets.
At an international level, the focus and mechanics of drug policy have shifted over time – from an initial focus on supply and trafficking through a concerted effort to use the criminal law to address personal drug use, to today where the evidence is leading to a changing policy environment where the harms of criminalisation are well understood, and alternative approaches are pursued. In 2015, in his message on International Day Against Drug Abuse and Illicit Trafficking, then United Nations (UN) Secretary General Ban Ki-Moon used his platform to call on UN member states to:
‘…consider alternatives to criminalization and incarceration of people who use drugs and focus criminal justice efforts to those involved in supply. We should increase the focus on public health, prevention, treatment and care, as well as on economic, social and cultural strategies’
Domestically, legislators have always emphasised the importance of the health of people who use drugs, and the harms of being prosecuted, even where one is acquitted, are well recognised by state agencies. During the Oireachtas debates on our primary drug control legislation, the Misuse of Drugs Act 1977, it was clear that legislators saw personal drug use as something to be addressed through assistance, not punishment – the criminalising of simple possession was more an undesirable means to the desirable end of a drug-free society, rather than a desirable end in and of itself. As Deputy Haughey noted at the time:
“We have had to try, too, to bring in legislation that would render certain acts punishable but we have had to recognise that very often people committing these offences are not guilty of criminal activity in the normal sense but, perhaps, are people who require medical care and attention rather than punishment.”
Nonetheless, simple possession of substances scheduled under the Act was criminalised under section, and this continues to be the case today. Over the intervening years, regulations made pursuant to the primary legislation have also shaped the law on possession, as have various other statutes. The scope of the impact of the law in this area is considerable. In 2017, there were 12,201 recorded incidents of possession of drugs for personal use, representing over 72% of all drug offences. There are also high numbers of prosecutions with regard to drug related crime. The District Court received 20,746 drugs offences involving 13,033 defendants in 2016, although it should be noted that the available data does not detail the precise charges brought in each case.
The evidence base concerning drugs, drug use and drug control is much more developed now than it was in 1977. We know that the reasons for drug use are complex, and that there is no clear link between the harshness of a country’s policy on possession of drugs for personal use and levels of drug use. Prevalence figures for drug use are not significantly affected by whether or not simple possession is criminalised – there is no consistent ‘deterrent effect’. However, we do know that criminalising people is damaging. Words are important, and being labelled a criminal is stigmatising. The fact of being labelled a criminal can also have lasting negative impacts on people’s lives, such as by restricting access to the employment market and affecting travel rights.
Given that criminalising simple possession provides little benefit but significant harm, it seems clear that it is not a good policy option. In this regard, it is worth noting that when Ireland’s legislators enacted legislation to address novel psychoactive substances in 2010, simple possession was not criminalised. In our quest to limit access to, and control use of, substances not controlled under the 1977 Act, we did not need to criminalise possession for personal use. Thus, Ireland operates a dualist framework in relation to possession of drugs for personal use. Only possession of substances which are specifically scheduled under the Misuse of Drugs Act 1977 is a crime. Non-scheduled psychoactive substances fall to be considered under the Criminal Justice (Psychoactive Substances) Act 2010, and simple possession is not a crime under the 2010 Act.
A number of countries around the world have explicitly decriminalised possession of drugs for personal use. Evidence from these jurisdictions indicates that decriminalisation can, as part of a comprehensive policy approach, improve health and social outcomes for people who use drugs, something which is desired by all stakeholders. Importantly, decriminalisation also changes the way people who use drugs are perceived in society and is consistent with addressing drug use as a health issue, not a criminal justice issue. In this regard, it is important to remember that people who use drugs are not hard to find, or a tiny proportion of the population as a whole. Rather, they are our friends, family members and colleagues - over a quarter of Irish adults report having used illicit drugs at some point in their lives. Using the criminal law as the means of addressing their possession of drugs is not a solid policy approach, and this report unequivocally supports the decriminalisation of possession for personal use and the adoption of a health led approach focused on reducing harm.