Q&A: How will gardaí decide which drug offenders get a second chance under new scheme?

Gardaí can now refer first-time drug offenders caught in possession of small amounts of illegal drugs to the HSE rather than prosecute them for the crime or issue them with an adult caution.

Harm-reduction experts have welcomed the change. Det Supt Sé McCormack of the Garda National Drugs and Organised Crime Bureau (GNDOCB) says the move is “a huge step in policy” and a “simple step towards helping people”.

The change has been in the works for a number of years. It follows a 2019 report from a Government-established working group that recommended health referrals be an option when dealing with people found in possession of drugs for personal use.

How is the new system different from what we have now?

Currently, adults who are caught in possession of drugs – however small the amount – are subject to charges, prosecution and, in some cases, criminal conviction.

Gardaí also have the option to apply an adult caution, which effectively works as a slap on the wrist in lieu of a criminal charge.

These decisions are made by senior gardaí in conjunction with the Director of Public Prosecutions and are entirely discretionary.

The new system expands upon the adult-caution mechanism, allowing for a referral to the HSE for a health-led approach to the offence. The system provides a structure by which gardaí will now consider all first-time users for health referral.

Who qualifies under the scheme?

The scheme is for adults only as youth diversion programmes are already in place for those under 18. It must also be a person’s first drug offence. Gardaí and members of the Defence Forces cannot avail of the scheme.

People deemed eligible must be willing to participate in the scheme. Gardaí must only proceed with referrals if they believe it is in the public interest not to prosecute the individual.

In order to meet the public-interest threshold, the offence must be of low seriousness and the drugs intended for personal use. The quantity of drugs should not arouse suspicions of drug dealing.

Does the type of drug matter?

The scheme applies to all drugs, according to the HSE clinical lead in addiction services Eamon Keenan.

The Misuse of Drugs Act, 1977, sets out that possession with intent to supply, as it is commonly known, is determined by someone having more drugs than would be “reasonable to assume” is for their “immediate personal use”. There is some discretion built into the act.

Det Supt McCormack told The Irish Times that to be eligible for the scheme, the amount of drugs in an offender’s possession must be for “personal use”, but that amount may differ on a case-by-case basis.

“If I were a long-term drug user in the throes of addiction, then my personal amount use might be bigger than yours, if you are someone who has been caught for the first time, if you are not a regular user,” he said.

What is the goal of the scheme?

The force has said there is a desire to recognise addiction as a “health issue” and that such an approach can help deter future drug offending.

Offenders will be offered the opportunity to voluntarily book an appointment with a HSE practitioner at the Saor intervention programme for a “brief intervention”, Keenan said.

Where necessary, people with high risk of problematic drug use will be offered onward referral for treatment or other supports. It is hoped this will allow gardaí to focus on the production, sale and supply of illegal drugs.

What will this ‘brief intervention’ look like?

This online or in-person intervention will be based on “motivational interviewing”, Keenan said, noting it is an evidence-based approach that is used effectively in other countries.

“We’ll identify if the individual has current or potential problems in relation to their substance use,” he said. “We’d work with them to motivate them to change their risky behaviours around drugs. In some cases, that will be to not take that drug anymore.”

Keenan said the HSE expects just 10-15 per cent of people will need to be referred to addiction services, as the new scheme will allow medical professions to stage an “early intervention” with users “long before they develop a significant problem”.

How many people can this scheme help?

Nine Saor practitioners are employed by the HSE and Keenan said they expect them to see around 7,000 people each year. That capacity can be increased, he says.

Is this a step to decriminalisation?

Ostensibly, no. Possession of drugs remains a criminal offence, but it does represent a softening of the policing response in a manner thought to be more effective in stopping people from entering more serious elements of the drug industry.