Misuse of Drugs Act
The Misuse of Drugs Act 1977 was the first substantial legislation on the control of non-medicinal drugs in Ireland. A controlled drug is any substance or preparation specified in the schedule to the Misuse of Drugs Act or from time to time classified as a controlled drug by governmental order.
The schedule to the Misuse of Drugs Act lists over 100 controlled drugs by their chemical names. The government has the power to order and declare any substance drug or preparation to be a controlled drug for as long as the order in question is in force.
The offence is said to be “strict”. This means intention or state of mind need not be proved and are not an element of the offences. If a controlled drug is actually in a person’s possession or control, the offence has been committed.
It may be possible, for a person to prove an honest and reasonable mistake once a controlled drug is found in the person’s physical possession. The onus is on him to prove that the possession is innocent.
It is an offence for a person to have a controlled drug in his possession. A person has possession of a controlled drug where it is under his control or custody. He also has possession if it is under the control and custody of another, where that person is under his control or acts on his behalf.
Possession may include immediate physical custody as well as general possession by control in the sense of leaving an article in a place whereby it can be retrieved.
The Minister may make regulations permitting the possession of controlled drugs by certain persons under prescribed circumstances and conditions. Regulations may be made prohibiting absolutely or permitting subject to conditions the manufacture, production, importation, supply and transportation of control drugs. Documentation may be required in the context of the control of the drug. Records may be required and precautions may be prescribed.
The Minister may make the preparation production, supply, distribution and possession of a drug, unlawful except for research or other special purposes.
The Irish Medicines Board (now the Health Product Regulatory Authority) may grant licenses, permits or authorisations subject to conditions, where appropriate for the purpose of the Misuse of Drugs Act.
Possession for Supply
A person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it. is guilty of an offence. In such proceedings where it is proved that the person was in possession of the controlled drug and having regards to quantity which he possessed or to such other relevant matter, it is satisfied that it is reasonable to assume that the controlled drug was not intended for immediate personal use, he is presumed to have possession for the purpose of sale or supply
A person who has in his possession of controlled drugs for the purpose of sale or supply of market value of more than €13,000, is guilty of a separate more serious offence. A member of an Garda Síochána or a customs officer who has knowledge of the unlawful supply or sale of controlled drugs is entitled to give evidence of the market value of the drugs concerned. Similarly, it is a separate more serious offence if a person imports controlled drugs in excess of €13,000 in value.
It is a separate more serious offence for a person to transport or convey drugs into a prison, remand centre or children’s detention school. This includes throwing drugs into such a place. A person is liable, on summary conviction for a fine of up to €3,000 and 12 months imprisonment or both, or on conviction on indictment of an unlimited fine or a term of imprisonment up to ten years.
A person may not smoke or otherwise use prepared opium, frequent a place used for such purpose, or have in his possession any pipes utensils made or adopted in connection with the smoking of opium or utensils which have been used by him or with his knowledge and possession in connection with the preparation of opium for smoking.
It is an offence to cultivate the opium poppy for the production of opium or any plant of the genus cannabis other than in accordance with the licence.
Land and Vehicles
A person in occupation, control or management of land, vehicle or a vessel who knowingly permits or suffers any of the following to take place on his land is guilty of an offence:
- cultivating opium or cannabis;
- preparation of either for smoking;
- smoking of Cannabis or opium;
- manufacture production preparation of a controlled drug in contravention of the Act;
- sale distribution supply of a controlled drug;
- any attempt to contravene the Act or regulations made under it
Where any activity or contravention mentioned above took place on a particular land, vehicle or vessel and the defendant was at the time of the alleged offence the occupier, manager or controller of the land or vehicle, it is presumed that the activity took place with his knowledge.
Where it is proved that the person has a controlled drug in his possession or forged prescription it is a defence to prove that he did not know and had no reasonable ground for suspecting that what was in his possession was a controlled drug or such prescription or that he was in possession of controlled drug or prescription.
It is a defence to prove that he believed the substance product or preparation was such for which he would have been licensed and not being guilty of an offence or that he knew or suspected it to be a drug or prescription and to have possession of it for the purpose of preventing another committing or continuing to commit an offence in relation to the drug or document or delivering it into the custody of a person entitled by law to take custody of it and that as soon as practical he took all such steps as were reasonably open to him to destroy the drug or document or deliver it to the custody of such a person.
It is not a defence to prove that he did not know or suspect that the substance product was in particular controlled drug alleged.
Where a person is convicted of an offence under the Act the court may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt in such manner as the court directs.
A person who is guilty of soliciting, attempting etcetera is liable to punished in the same way as those guilty of the substantive offence.
It is an offence to aid, abet, counsel, induce or commission outside the State any offence corresponding to that under Irish legislation. A person who attempts to commit an offence of the Act or who aids, abets, counsels, induces or procures the commission of the offence or solicits another to commit the same, is guilty of an offence.
It is an offence to publish, print or cause to be published or printed sell, expose, distribute or keep for distribution any book or publication which advocates, encourages or might be reasonably supposed to so do, the use of any controlled drug or any products or preparation containing such controlled drug or otherwise than in the course of professional treatment by a practitioner.
Similarly, any such publication or thing which contains an advertising use of any pipe, utensil or other things for use by persons for or in connection with the use of a controlled drug is prohibited
It is an offence to communicate information for the purpose of enabling or assisting another to obtain a controlled drug (other than on prescription).
Where a person with the intent to commit, aid, abet, commit or procure the commission of the offence above has a document under his control of such a nature that dissemination would constitute the above offence, this of itself is an offence.
There are defences for distributors of books, periodicals and other publications where the person could not with reasonable care have ascertained the contents.
Regulations may regulate the issue of controlled drugs by registered medical practitioners, dentists veterinary surgeons, nurses and others. Information and control requirements may be imposed. Conditions may be applied in respect of the packaging and labelling of such drugs. Requirements may be made in respect of the destruction and disposal in a prescribed manner of a controlled drug.
It is an offence to forge a prescription issued by a medical practitioner. It is an offence to having a forged prescription in one’s possession.
Where a practitioner or pharmacist has been convicted of an offence under the legislation or under customs legislation in relation to a controlled drug, a direction may be given prohibiting the prescription and supply of controlled drugs by that practitioner.
Where the Minister believes a practitioner has been prescribing administering or supplying controlled drugs in an irresponsible manner, a direction may be given prohibiting him from administering or supplying such drugs as may be specified. This is a special direction. A special direction may be cancelled.
Where a Minister considers that there are grounds for giving a special direction a Committee of Inquiry is established and the matter is referred to it for investigation. The person concerned is given a copy of the statement of grounds and is entitled to make submissions. A temporary direction may be given in a case of urgency
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