Joint Committee on Drugs Use debate -
Thursday, 11 Jul 2024

We have received no apologies.

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We welcome our witnesses. The topic of our meeting this morning is engagement on decriminalisation, depenalisation, diversion and legalisation. The committee members have been very interested to learn from the experiences of others in respect of drug policy, so I welcome our witnesses who join us in person and by Microsoft Teams. We have Dr. Cian Ó Concubhair, assistant professor in criminal justice in Maynooth University, where he teaches specialist modules in policing and the State and global policing. We have Mr. Nick Glynn, a former policeman, who is a senior programme officer at the Open Society Foundations and an acting board member of the UK's Independent Scrutiny and Oversight Board for the police plan of action on inclusion and race, where he leads the better policing portfolio. We have Mr. António Manuel Leitão da Silva, superintendent of the public security police and commander of the police of Porto, who also holds a PhD in psychology, a master's degree in psychology of deviant behaviour and a degree in police sciences. Mr. Leitão da Silva, I know you have only an hour with us so I will invite you to speak first. Then we will go straight to questions with you, which would not usually be the format, but we want to be able to get the most from this engagement. If the other speakers are okay with that, we will allow questions with Mr. Leitão da Silva first in order that we can then let him get back to his job. I invite you now, superintendent, to give your opening statement.

I thank the committee for having me at this high-level meeting. I apologise because English is not my native language. If members do not understand what I am saying, I ask them to ask me to repeat it. I will try to keep it simple.

When I was invited to this meeting, I made a kind of retrospective analysis of the experience in Portugal. As members will know, we in Portugal decriminalised drug use in 2001. If we compare the rates of drug use and drug overdoses in the past, before 2001, and now, we have an incredibly low number, even though the numbers are increasing again. I think the use of synthetic drugs and massive use of cocaine are European trends, but the experience we have is very promising, even though with the troika period in 2010 and 2011 we had a huge step back because one of our institutes was dismantled due to lack of funding.

One of the many questions members probably want to ask me is what the police role is in this new scenario. It is not actually new because we have been experiencing this for the past 23 years. One of the things I would like to emphasise, and I did so in my keynote that I sent to the committee, is that for the police it is a challenge to change mindset and not consider the drug user as a criminal but much more to view this as a problem with a social impact. I think this challenge for the police will take years to be settled. It is definitely not an easy job. From a police perspective, this new legislation, first of all, treats individuals in a much more combined perspective of human rights rather than just criminal subjects. That is the most important thing.

Second, the public health outcomes are enormous. First, we are treating individuals equally and, especially in terms of the public health system, we are able to get them back on track and into the system. That means we have a decrease in the number of infections, comorbidities and diseases, and the numbers we have are quite good, even though they are increasing now.

It is not easy for a police officer.

We are not electric switches. You cannot just change the police mindset in 2001 and then have a completely different policing approach. This requires probably a generational change in the police to get settled. I have been working in this area for 36 years, and one of these days I am about to retire. There was a long period of adaptation to see these individuals rather than as criminals. I am not saying they are not of criminal interest to police officers, but we have to consider that these individuals are much more of a social problem than a police problem. We have been working closely with, for example, the drug consumption room that opened two years ago in Porto. For years, we have kept this strong connection with the world of drug users. They respect us as police officers but not from a criminal perspective.

I have been a little sceptical about what the future will be regarding this huge volume of drugs that is coming to Europe. The effort made to repress this has to increase, not least in respect of the volume of drugs coming from South America and the new synthetic opioid drugs as well. Starting from the beginning is going to take time if Ireland decides to decriminalise drugs. In Portugal, we decriminalised but we did not depenalise drugs. It is not a crime but there is still a sanction, although this sanction is very mild and in most cases is not applicable. On the path through decriminalisation, it will take a long time to get the police mindset to adjust to this new reality.

I thank Mr. Leitão da Silva. He highlighted how Portugal is on a journey ahead of us. Everybody at the moment seems to be talking about Portugal, or at least we certainly are, and what it has been doing over recent decades. On the philosophy of policing and treating drug use as an inevitable consequence of where society is, without criminalising people, has the police force in Portugal taken the decision that drug-taking exists in society, that we cannot really interdict it and that it is on the rise, as Mr. Leitão da Silva said, for which supply is obviously a major part? Does he see rising rates of recreational drug use as a problem for society, despite its decriminalisation? I refer just to societal issues.

The Deputy raises a good point. Of course, the status of drug user is not written on an individual's ID. We have had legislation since 1996 that helps the police to consider what the pattern of consumption is, such as how much the individual is able to consume in ten days. Assessing this number is tricky because addiction cannot be considered as a mathematical equation, but still, for police officers and to help police activity, we have a certain level that is predictable for the drug user to use in the course of ten days.

The increasing number of recreational drugs poses a different challenge and, as I mentioned previously, it definitely requires a challenge to policing philosophy. As I said earlier, it is almost impossible, not just theoretically but in practical actions, to change an individual’s status with the police from criminal to something else. That is why I think that in a decriminalised scenario, the police still have a role. It is not something they have to forget about. First, of course, they have the role of producing information for other measured police activity and, at the end of the day in the Portuguese system, the police have the job of referring these individuals to the dissuasion commissions. Should this be a job for the police? I do not think so. I think the police can do the job but this is much more of a social work approach. I am not saying the police do not do social work daily. Thank God they do, because that means they do not have to chase criminals 24 hours a day, but still, I do not support the idea that these jobs should be done specifically by the police.

To go back to the idea of trying to interdict a greater uptake of drug taking where there is decriminalisation, we understand and have heard a lot about the logic behind that, but in terms of policing measures, I would say there is a societal desire to try, insofar as possible, to discourage recreational drug taking, especially because it may be a pathway to harder addiction. As we are seeing with the kinds of heavier drugs Mr. Leitão da Silva outlined, such as opioids, they are highly addictive and, even for people who might recreationally take drugs, they can form a significant drug habit. They can present a social and economic problem for them and their families. What is being done in Portugal in the context of policing to try to interdict this? Has it affected the state's ability to interdict the supply of illegal drugs into the country?

I might rephrase it. If, on the one hand, society wants to have some control of the expanding use of drugs but, on the other, we decriminalise and take away a sanction we have in the system at the moment, whereby everybody who is illegally supplying drugs will know there is going to be more drug use in this country over time, and if we do not have measures to try to prevent that, are we not accepting this kind of growing consumption of drugs throughout society over a period? It will mean we can control neither the supply nor the taking of drugs.

In the experience of Portugal, however, we did not have increased levels of trafficking after we decriminalised. Of course, we are now facing a strong wave of drugs from outside of Europe, and specifically in Porto, but our experience does not reflect an increased number of drug users after decriminalisation. It is a challenge for the police to put more effort into combating trafficking because otherwise, as the Deputy mentioned, it will be tempting for drug dealers to supply the market with more drugs. If the police take the right action, however, and treat drug users properly, the number of consumers will decrease, meaning the demand will decrease, which is why we have had good outcomes, especially until 2012.

I thank the superintendent for being with us and for his work in this area. We visited Portugal a number of years ago and I met a lot of people there who were involved in this project and the policy, which was very impressive. We had a presentation earlier this week from police from Vancouver and someone from the United States about places where there was decriminalisation. It seemed to fail because it was not thought through properly. In Ireland, people are not supposed to drink alcohol in a public place. With decriminalisation of drug use, it is not a crime for someone to have a small amount for personal use on their person. What is the situation with using drugs in a public place in Portugal? That might be smoking cannabis, injecting heroin, snorting cocaine or however you take it.

That is a very good question because we are facing an increasing number of situations. We are increasing dramatically the visibility of drug consumption in public spaces and that scenario is not something the law made in 2001 took into account. It is a political issue as well because most of the politicians do not want to change the law. It is not an outcry, but there is still strong pressure from some individuals from different political parties to revisit the law regarding the public visibility of drug consumption. Technically in the law the only thing considered a crime is the abandoning of syringes in public spaces. Other than that, nothing is a crime or even a misdemeanour. The path right now is to revisit the law. I do not know whether the political parties are going to be keen to change it or not. That is a different thing and has nothing to do with the police. It is true the visibility and the impact for insecurity, objective and subjective, is quite high.

Okay. It seems in Vancouver and Oregon, the use of drugs in public places derailed the decriminalisation. That was what I understood from the presentation earlier in the week. People were very unsettled and upset. There was a description of people being at the beach with their children and somebody next door visibly using drugs.

That seems to have derailed the thing. When I was in Lisbon all those years ago, I made an inquiry with police officers at the time about how it often appears that if you walk down the street you are offered substances. People approach tourists and others and offer substances in small bags. I was told by the police at the time that a lot of that was bogus, fake and not real.

I have just one hour because this afternoon I have a meeting with the minister of the interior in Lisbon. One of the points on the agenda is going to be the one the Deputy mentioned. It is very difficult. As he said, most of these drugs are fake but if the police can do nothing on this then that is something that is a gap in the legislation. I do not know how to tackle that technically. We have been through some proposals but I do not know how to do it technically. If the police seize these fake drugs at the very beginning and the drug is nothing, they will not do the police job later on in the process. That means it opens the opportunity to have good drugs in these individuals. It is a logical itinerary. Right now, there is a lack of legislation about this kind of fake drugs. There was a campaign in Lisbon for tourists a few years ago - I think it was led by the police and municipality - to have them not buy fake drugs. It is a little bit ridiculous, but there is a lack of a technical approach for this.

We have this problem to a significant extent in Porto as well. There are a specific group of individuals who are selling drugs and most of these problematic individuals develop a sense of insecurity among the population that is absolutely huge. It is not just among the population. If you go to nomad sites where you can find tourist information about Porto, it is written that in Porto you can have illicit drugs available everywhere. That is not true because most of these illicit fake drugs can be found in diversion places like nearby bars and night spots, but ultimately Porto is being referred to as having drugs available on the street for those who want to buy and that is a gap in our legislation. This issue is on the table politically right now.

We have to go in two different ways. First of all, there is the increasing number of drugs that are coming to Europe. Portugal is an entry door for most of the drugs in Europe. It happens also with the north part of Spain that is in the vicinity of our north border. At the same time, we have had disinvestment in the drug harm reductions. It happened in 2010 or 2012 with the dismantling of the Institute for Drugs and Drug Addiction. That means if we do not put money into strategies, it is most likely we are not going to be very successful. The numbers will increase again because from the last numbers I have been through we have a population of around 11 million and last time it was about 74 deaths provoked by overdoses. If I compare this number with other countries in Europe it is quite low, but the number was much lower in the past. That means if we are not investing in the social, medical and police approach we are not going to be very successful. There is a political consciousness right now to put in some money and reinvest because we are having the problem again, that is, we have high visibility of drug use on the streets. I remember the situation before 2001 and also the years afterward. The change was dramatic and we had an outstanding performance after 2001. In 2012 we had an economic crisis that really affected Portugal. Investment in several areas had to be cut and this area was critically affected. We are now paying the bill, especially because we have more drugs coming to Europe right now. This is a conjunction of both these situations, rather than just the increase of drugs in Europe.

How can we attribute the reduction of drug use to one over the other? Is there an argument to be made that the most important thing is to fund harm reduction productions and that decriminalisation is very much a secondary element that did not have much of an impact in the reduction? When the funding of the harm reduction programmes is reduced, drug use seems to increase.

I am probably not the best professional to comment on that but one thing is, if we put money in harm reduction, we are more likely to have people leave drug use than if we do not put money into these programmes. It is not just harm reduction, it is harm reduction plus other programmes that stop people from using drugs. If it works this way, there will be a lower number of drug users. If we just focus on harm reduction, there will definitely be a very good impact on public and individual health but we will not have the other parts.

Police officers in Ireland are largely prohibited from expressing political views so Mr. Leitão da Silva may not be able to answer this question, but in response to that increase in drug use, are there increased calls from within the police force for recriminalisation or is that not even being contemplated?

It is not. The police force claims there are much better ways to tackle and fight drug dealing on a large scale. Drug users are not an issue for the police any more. They are good sources of information but they are not police-critical and there is no outcry from police forces to recriminalise very low-level drug use.

No, the relationship between a police officer with someone who is deviating - I am not saying criminally deviating - is a question of confidence. That is something that is gained. It does not matter whether drug use is criminalised because we still have the same sources of information. We gain confidence from those on the ground and definitely,as drug users are not facing police officers as being the arrest officers, because they know we will not arrest them, it is probably much easier to get information.

I thank the commander for his time and this is really helpful for the committee. What I hear from him is that the decriminalisation of drugs in Portugal has saved lives and policing, court and jail time. Drug use has increased but drug overdoses and deaths have decreased. Mr. Leitão da Silva mentioned individuals, drug users and identification and I am not sure if I understood him correctly. Will he clarify for me if it is the case in Portugal that drug users are required to register and self-identify as drug users on their personal identification?

No, it is probably my poor English. I said that it is not possible to have written in the identification, the ID, the amount of drugs any drug user takes daily. It is because the law we have from 1996 established the amount of drugs people can take with them for consumption during a ten-day period. The figures from drug consumption facilities show there are people whose average daily consumption is eight times per day and goes as high as 20 times per day. That means other things because probably the quality of drugs is quite low right now, especially cocaine and even crack cocaine.

We have a very strong culture of alcohol and alcohol abuse. It is largely socially accepted as part of our culture. The way drugs are in other cultures is in many ways how alcohol has been in Ireland for far too long. I hear what Mr. Leitão da Silva is saying about an attitudinal change. It requires an investment in attitude and the police force being required to adopt a humane approach, to accept that users are themselves victims, and to completely disengage from a criminalising approach to users of drugs. I hear Mr. Leitão da Silva on that, but from an operational policing perspective, will he talk us through how it is operationally for the police force to navigate that space between users being just users and then the suppliers? I assume most users are very modest users. It is just for personal use. There have to be grey areas and I understand Portugal does not have a legalised method for sale and distribution, so all sales and distribution are illegal and criminal acts. How does one police in that space or in that transaction?

It is the one million dollar question because it is quite challenging for the police. Especially, as I mentioned, the legislation allows users to take an amount for ten days and the strategy we have right now is the drug dealers supply small amounts to drug users and have them re-selling these small amounts. It is a challenge for the police and it is definitely a grey area. The challenge is for police investigations and especially when we realise drug dealers are using drug users for drug trafficking purposes because of the ten-day amount users can carry themselves. It is a challenge for the police investigation squad. We are not lacking police operational status because of the law. That is one of the things I would like to emphasise. We are still doing the policing job properly. Actually, the police seized quite a good amount of drugs two days ago here in Porto. It is much easier now to get information than it was in the past because police officers are not those who will incarcerate drug users. I understand the Senator's question because of this grey area but at the end of the day we do not have that problem here. The problem we are facing now is the use of drug users to traffic small amounts of drugs and that is something the police are dismantling - the strategies of the big drug dealers.

I welcome our witnesses. I appreciate the conversation in terms of the identification of the narrowness between the consumer and the criminal under this system. Mr. Leitão da Silva spoke about the resources the police have available, and in previous committee sessions we spoke about the best use of those resources under a health-led approach.

What is Mr. Leitão da Silva's experience of non-problematic use of drugs? How has Portugal diverted people into health programmes and what is the best use of resources? The reason I asked this question is because we have a finite amount of resources in our health system and I am concerned that under a diversion model, we would end up with a significant number of non-problematic drug users in places that would be better used by people with serious addiction.

I understand what the Deputy is asking. As I mentioned before, the distinction between a police job and a social job is definitely a grey area. It will not be up to police to make that distinction at the very beginning. This distinction should be made afterwards when the individual is referred to the dissuasion commission. I understand that some individuals who are using drugs are not critical. To submit them to a dissuasion commission may be a bit tough but at the end of the day, the job of the police is to submit them to the dissuasion commissions - not to distinguish at the very beginning.

We were facing a lot of problems with mental health cases at the beginning. Most drug users are not diagnosed with mental health problems but most of them can be critical and a serious threat to public security due to some morbidities acquired during the use of drugs. Probably one area where we lack support on the ground is the fact that most of the time we just have the police officers on the ground. I have been challenging my counterparts from social work and the medical side that the support for drug users cannot just be given at drug consumption facilities. It should be given on the ground because most of these individuals are not consuming drugs in DCRs. I do not know if I answered the Deputy's question.

Mr. Leitão da Silva did. I thank him for referring to that comorbidity issue and the complexity of people who in some cases are self-medicating and find themselves in drug use. It is very interesting that Mr. Leitão da Silva said that while the police force recognises the challenges in decriminalisation, there does not seem to be much appetite for recriminalisation. In previous sessions, there has been some discussion that the next step for Mr. Leitão da Silva's region might be to look at the legalisation of some substances that are currently not legal and that would be the subject of his region's work where it is not prosecuting users but is prosecuting those that trade. Could he expand on that? Is he aware of the work being done on that issue?

We are trying to tease out the difference between decriminalisation and legalisation. Does Mr. Leitão da Silva have an opinion on the value in the context of what he has been describing in the past hour, which is a lot about the positive effects of decriminalisation in terms of rationalising the police's work so it is now focusing on the drug trade and criminality and not necessarily on individual users? In that context, we have seen other regions fully legalise and regulate some substances. Does Mr. Leitão da Silva have an opinion on that?

I do not. I have been following some cases such as that of Switzerland and other places but I do not have an opinion on that. From a technical, very judicial perspective, we can try different scenarios but at this stage, I do not know if we are ready for taking the burden of being illicit from drugs in Portugal because the drugs are still illicit. We are not criminalising but there is a sanction for them. The next step will probably be the free usage of drugs but there will probably be three key paths to take. I know the experience of Switzerland and probably understand some of them, particularly where the drugs are supplied by public institutions, but at a large scale, I have some reasonable doubts that it may be okay.

Sometimes when conversation goes back and forth and there are so many discussions, be they about decriminalisation or increasing drug use, what people hear concerns me somewhat. I will repeat how I understand things to be. Drug use is not just increasing in places where decriminalisation exists. Sometimes there seems to be an effort in conversation to mention decriminalisation at the same time as an increase in drug use, an increase in potency or all these other issues when they are separate. Does Mr. Leitão da Silva understand them to be separate? Ireland is reporting massive increases in the use of drugs and the use of different types of drugs. Decriminalisation itself is not associated with an increase in the use of drugs because that is also happening in places of criminalisation.

I like the confidence with which Mr. Leitão da Silva speaks about the police force in Porto. Every time a concern is raised about the grey areas of policing and how you can follow that thread regarding whether someone is being used to carry drugs for a drug dealer under a certain model, Mr. Leitão da Silva keeps coming back to the point that this is an issue for policing. There is a confidence in Portugal that this is up to the police to figure out. Elsewhere there seems to be a doubling down of the belief that we need to criminalise the drug user so that policing can be done effectively. It removes the strength of a police force to be resourceful and intelligent and to be able to find ways to go after the things it is meant to go after - trafficking and the sale and supply of drugs - and it does not need to use the drug user to be able to carry out its police functions. I am hearing Mr. Leitão da Silva speak quite confidently about what is and is not a police issue.

Definitely. I have a special team that goes three times a day with a municipality team through the places that are being used for drug use - places with syringes and other paraphernalia and equipment used by drug users. We have a police team that follows another team and goes through all these places just to reduce harm, for example, by picking up abandoned syringes. As the Leas-Chathaoirleach mentioned, decriminalisation has nothing to do with increasing or decreasing. It is up to the police to really find the strategies. My experience is that on an everyday basis, we have situations where the police are the first to respond to other situations with drug users other than criminal actions. It involves social problems, mental health problems and other diseases and the police definitely work as social workers. As I mentioned, in the paper to which I referred, police officers are not social workers. This is a big mistake that is commonly made.

We can ask police to make social working provisions in a certain perspective but police officers are not social workers. They should not replace the social response by other professionals who are fully capable of tackling these situations.

On that social response, we think of harm reduction as a stand-alone thing and separate to decriminalisation. Some people may think that we can either invest in harm reduction and reduce the harm of problematic drug use for individuals or bring in decriminalisation, which some believe is somewhat separate. Would Mr. Leitão da Silva agree that decriminalisation is actually a harm reduction model in and of itself and part of a suite of things and that decriminalisation is actually paramount to achieve adequate harm reduction for people?

I will be brief. It is great to have the commander here. It is important to have him here because sometimes when we are looking for reform, engaging with people outside of our own context provides a different perspective. There is a line of questioning I wish to ask. A lot of the time in this discussion we talk about the person who has the addiction. I agree with a huge amount of what is in Mr. Leitão da Silva's statement but I want to bring in some questions, from a policing perspective, that perhaps people might ask who are sceptical. For many people when they see open drug dealing in a street, it makes them feel less safe. When they see people using drugs, they feel less safe. There is a lot of hypocrisy there because if they see people drinking alcohol on the corner, that is one form of drug and then they see somebody taking a different type of drug and that makes them feel differently. I accept that but I just want to talk about it for those who may be sceptical about the issue of decriminalisation. Will the witness talk a little about the efficiencies of policing that have allowed the force to police in a better way because, as the witness said in his statement, they are not undergoing all of the paperwork and the transactions around the issue of criminalising addiction? Will Mr. Leitão da Silva give some examples of how they been able to police better not just in the area of drugs but also other efficiencies that enable them to police in other areas?

I will divide the question. It is challenging for the police. As I mentioned previously, there is a gap in the law taking into account the public use of drugs. As a police officer I believe the law should revisit that specific area because, at the end of the day, the public exposure of drug use has a direct impact on the sense of security everyone should have. That is one thing. I fully agree with Deputy McAuliffe because most of the complaints we have right now are about the huge public use of drugs, including the abandoned syringes and other paraphernalia of drug use.

Second, our experience reveals that police action on a daily basis is based on confidence the police establish with the public. Related to this is the concept of the public as a little bit diverse. It is not just the good public but there is also the other public where some are connected with illicit activities. In this specific perspective, the relationship between police officers and drug users is much better right now than it was in the past. Similarly, the relationship of drug users with the police is better as well. I know that the police can never say they have nothing to do with drugs, because drug issues have a secondary impact in other criminal activities and especially in crimes committed against property such as thefts of cars and houses and so on. Since 2001, the police have gained space for other interactions with the community. In terms of community policing, or police de proximité as the French say, I believe we are in a much better position right now than in the past. Decriminalising drugs definitely had an impact on that.

We did not stop the use of the power of stop and search in Portugal just because of the decriminalisation of drugs. At the end of the day, if we find the individual with drugs and we refer them to the Commission for the Dissuasion of Drug Addiction, the police would have had to search the individual to seize the drugs to be able to then send the person to the dissuasion commission. The power of stop and search was not blocked with decriminalisation in 2001.

I thank the commander. It is very refreshing to hear a police officer speaking very frankly about this issue. I have just one question on the illicit market for illegal drugs. Portugal has been more progressive in this regard than Ireland. On the flip side, the illicit market in Ireland is controlled by a number of very violent and powerful criminal gangs. What is the situation in Portugal with who actually controls the illicit drug market? Obviously this is criminal gangs but is it a number of gangs or is it more disparate because of the policy of decriminalisation?

Of course as a police officer I will not explain too much on that, a reserve position the committee will probably understand. The drug markets are controlled sometimes by families and sometimes by gangs but not - as I know - from the same status of Ireland. The point is, and especially in the context of a family perspective, one of the problems we have in Portugal is that someone who is fully engaged with drug dealing is not just one individual from the family but the whole family. The individuals know that one of these days they are going to be arrested by the police but this will not stop the drug activity because they will leave the other members of the family running the same business. In this way it is a family thing most of the time. In Porto especially they are taking advantage of some social neighbourhoods where the police actions are much more critical and difficult.

Gabhaim buíochas leis an gCathaoirleach agus le baill an choiste as ucht mo chuireadh. I am very grateful for the opportunity to speak to the committee as it undertakes potentially generationally significant legislative work in the area of drugs policy.

My name is Dr. Cian Ó Concubhair. I am a graduate in law from Trinity College Dublin and the University of Oxford. I also hold a doctorate in criminology from the University of Oxford where I undertook ethnographic research on policing in England. I am currently assistant professor in criminal justice at Maynooth University school of law and criminology, where I lecture on criminal law and policing. My research specialisms lie in the areas of criminal law and policing with a particular focus on police powers, governance, accountability and legitimacy.

I speak to the committee today not just as a researcher of these areas. I am also one of a handful of criminal justice scholars with direct personal experience of the criminal justice system. Before attending university and embarking on my academic life, I worked as a stone mason in the west of Ireland where I am from. During this time, I was also engaged in the cultivation of cannabis plants for sale and supply. I was arrested in March 2009 and pleaded guilty in December 2010 to section 15A of the Misuse of Drugs Act 1977. I was sentenced to five years imprisonment but this was suspended in its entirety. I was a user and supplier of prohibited drugs and, therefore, engaged in activities that Irish politicians, police, courts and news media routinely characterise as evil.

Since the enactment of the Misuse of Drugs Act 1977, Ireland has treated the use, whether problematic, or otherwise, and sale and supply of certain substances as serious criminal offences. The 1977 Act was passed to ratify the UN Single Convention on Narcotic Drugs, which mandated signatory states like Ireland to pursue a criminal justice-led response to drug use and drug markets. The UN Single Convention was largely drafted and promulgated by the US. US President Richard Nixon declared the war on drugs in 1971, largely for domestic political reasons. Since then, the US has pushed to globalise this war through, among other efforts, the UN’s narcotics treaties.

Ireland did not declare the war on drugs. However, over the past 50 years, it has sought diligently and often thoughtlessly to pursue its logic and practices. It is easy to think that drugs are new and that criminal prohibition was always the norm. In truth, many substances now prohibited, such as cocaine and heroin, were at one time lawfully available to people in Ireland. Some substances such as cannabis, have been present in Ireland for at least a millennium. Historically, then, criminal prohibition is the aberration.

In this opening statement, I wish to make some essential points regarding the nature and purpose of criminal offences and the consequences of drugs policing practices. Criminal offences are, at their core, designed to impose stigma. We cannot remove the stigma around conduct if we maintain criminal offences relating to that conduct. Criminal offences criminalise people not substances. You cannot criminalise drugs in the abstract. Criminal offences apply to people only. We cannot decriminalise use of a substance while criminalising the substance. The people who are subject to criminalisation are, therefore, the ones we need to think about.

Relatedly, any effort to decriminalise drug use in Ireland must begin by repealing section 3 of the Misuse of Drugs Act 1977. Any measure short of this will maintain Garda and court discretion, which will lead to continued criminalisation and punishment of drug users. Decriminalisation or legalisation does not equate to State endorsement or normalisation of an activity. The decriminalisation of suicide in 1993 does not constitute State endorsement or normalisation of suicide. Indeed, the State can legally permit conduct while actively and often successfully dissuading and discouraging it through other legal and policy measures. Ireland’s current law and policy governing tobacco is an excellent illustration of this.

The criminal justice response mandated by the 1977 Act is the most intrusive, coercive and punitive response the State could have adopted regarding drug use. The exceptionally intrusive powers granted to police to pursue the war on drugs are themselves the cause of significant harm to communities that the State claims to protect and have serious constitutional and human rights implications. I argue that drugs policing practices are fundamentally at variance with the State’s commitment to human rights-based policing and its stated desire to police by consent.

Criminal prohibition of drug use is corrosive to policing itself and police-community relations. Intelligence-gathering tactics, often of questionable value, seek to instrumentalise drug users by threatening them with criminal convictions if they do not inform. Stop and search practices for drugs are by their nature often degrading and dehumanising for those subjected to them, especially as most subjects are innocent of any offence. In every country where this happens, excessive use of stop and search practices, overwhelmingly deployed against socioeconomically or ethnically marginalised groups, poison police-community relations. With those points in mind, I look forward to assisting the committee in its deliberations.

I thank the committee for the opportunity to speak to it this morning. For the past eight years, I have led work on police accountability and reform in the UK and across western Europe at Open Society Foundations, a global human rights organisation. I am a board member of the independent scrutiny and oversight board for the police race action plan leading on use of police powers. I am a retired senior police officer having served for 30 years in a variety of operational and management roles. I was the College of Policing lead for stop and search from 2012 to 2016 and led reforms to stop and search across England and Wales. I am a former vice president of the National Black Police Association. I have a law degree and a master's in applied criminology from the University of Cambridge.

My interest in drug policy flows from my policing experience and my personal experience of the ways in which police powers that emanate from the so-called war on drugs impact people, notably the disproportionate affect on black people and other people of colour. I listened to the previous two statements and in particular, really agree with every word of the last one. I believe that the so-called war on drugs is built upon race and class issues and that from that perspective, it has been successful. The war on drugs is often a disaster and a failure but my view is that it was designed to put certain communities down, to criminalise them and to exacerbate the structural inequalities that already exist in society.

The so-called war on drugs ignores the evidence from academics and from history that people have always used substances and I do not make the distinction between drugs and substances. People have always used substances, they still are doing so and they always will. On that basis, the tricky path towards decriminalisation and legalisation of drugs with all of the challenges and checks and balances needed along that route is needed urgently to stop the harms caused by drugs prohibition because it is prohibition that causes the harms not really the drugs themselves. Overdose deaths, violence, criminalisation, addiction and many other harms besides can be avoided if a new approach to drugs use is taken. Continuing in the futile quest of ridding society of drugs is the definition of madness. Carrying on doing the same things over and over again - since 1977 in Ireland and since 1971 in England and Wales - and expecting different results is madness.

I have seen first hand how police powers under the Misuse of Drugs Act are used, abused and misused by police officers. Changing drug policy could be transformational for policing, for communities and for community safety if the police did not spend so much of their time, resources and energy fighting this futile unwinnable war. Trust and confidence in policing in the UK is at an all time low and declining. One of the most contentious police powers is stop and search. Between 60% and 70% of stops and searches are for drugs - not weapons - with consistently low find rates. If policing was empowered to stop wasting time and resources trying to find tiny bits of cannabis, officers could use their time more productively detecting and preventing violent crime and other crimes that have a direct impact on communities. Starting on the path towards decriminalisation and legalisation with cannabis the obvious first choice will take drug supply and demand out of unregulated markets where criminal interests outweigh a desire to keep people safe. It will allow drug issues to be dealt with as a health and education matter rather than a matter for the criminal law and ensure that people who need help with addiction receive such help.

It should be noted that the vast majority of people who use drugs have no problems with addiction whatsoever. It should be acknowledged that people use drugs for pleasure and that no amount of criminal sanction has prevented or will prevent this. This approach would free up police resources or enable resources to be diverted towards alternative community safety solutions that have never been given the opportunity or the resources needed to thrive and succeed. It could potentially provide tax revenue and ensure that a safe supply is available so as to avoid the most serious harms created by prohibition. I look forward to the committee's questions.

I thank our guests. It is really great to have people with such wide experience talking. Dr. Ó Concubhair also has lived experience. In his opening statement, he made some points highlighting what is becoming a common theme here, that is, that the present war on drugs is not winnable and that recreational drug use is essentially a fact of life. I drink alcohol. That is my vice. It is not a vice but it is what I engage in. We are all afraid of the pathway we are now considering, opening wider society up to a large number of alternative drugs and openly allowing into society a large number of drugs we currently interdict through criminal sanctions and policing work. What are the witnesses' thoughts on that statement? I will start with Dr. Ó Concubhair, if he does not mind.

What I am wondering about is whether we should decriminalise and give society the idea that widespread drug-taking of all types is permissible and quite okay. Just the same as you might have a drink, you might take an opioid and all of that. Does Dr. Ó Concubhair have concerns about what that might look like? Is it a realisable vision?

My first response would be that the State decriminalising does not mean endorsing or legitimising conduct. As I have said, I do not believe it is the position of the Irish State that suicide is a good idea or that it is something that people should do but, for very good reasons, the State decided to decriminalise suicide in 1993. In the Fleming decision, the Supreme Court recognised that the State can take a neutral view in how it legislates on things. As seen in the evolution of tobacco policy over the past 25 years, we have seen that the State can also have very hostile attitudes to conduct that is legally permissible and that this can often be very effective in reducing consumption.

As to the impact on people, if the Deputy is worried about messages to the community, the committee has already heard quite a lot of evidence that decriminalisation does not necessarily lead to increases in use. There is no strong causal evidence. As drug use increases in other countries that have decriminalised drug use, such as Portugal, it is also increasing here, at least with regard to certain substances. To compare different jurisdictions, the Netherlands and France, at a high level, France takes a very punitive attitude to cannabis consumption while the Netherlands has effectively legalised it for nearly 50 years. Cannabis use is higher in France than it is in the Netherlands. There are plenty of other examples we could point to. What this tells us is that people use drugs for very many reasons and that these are often completely unrelated to their legal status. If the Deputy is concerned about a massive increase in use following a move to decriminalise or even to legalise substances, the evidence is not there to support those concerns. On substances that are legal for people to consume, such as alcohol, alcohol use has declined over recent years. That is not necessarily because of any major legislative or policy action on the part of the State. A lot of what is happening is related to a shift in cultural attitudes towards substance use that is completely detached from what the State is doing as regards interventions. Does that answer the Deputy's question?

I thank Dr. Ó Concubhair for that. Mr. Glynn might like to come in here as well. My concern relates to drug dependence. I worked in a business in the healthcare space that involved regulated opioids and I have seen the addictive nature of those drugs. How are we to stop recreational drug users embarking on a pathway to a range of different drugs? Vaping might be an example. It started as one thing but we now see it going off in a number of different directions and being commodified, marketed and so on. How do we stop that happening in the drug trade? How do we stop people being exposed to highly addictive substances? That is the problem. It is not about recreational drug use. The problem is the substances themselves. If you end up going up this ladder to heavy opioids, you could end up with a very significant drug dependency problem. It is very difficult to kick that habit and to stay off it.

No, I am not. I am asking whether Dr. Ó Concubhair is concerned. I believe Ireland is an outlier. With regard to alcohol, we were told for years that the Irish personality or psyche is such that, in a lot of ways, we tend to go all in. That is my opinion. We all know recreational drug users. That is fine. However, we have one system in this country, one of criminal sanctions. It may not be working but it sends a message to our youth that the State does not condone this activity and that it is a criminal act to engage in it. If we take that away and allow this opening up of the marketplace to everyone and everything, how are we going to control the hard end of the drug regime? Are we going to look at what we have seen in parts of the western United States, that is, widespread drug taking and people walking around out of their faces and largely dysfunctional in society because of total dependence on really heavy drugs?

There is an awful lot to unpack in what the Deputy has said, especially in drawing in the example from the United States. The best thing to say is that, unless they are extreme libertarians, no one is advocating a commercial market for opioids. Most people advocating for the legalisation of certain opioids that are currently criminally prohibited envisage that being done in a very heavily regulated environment, probably controlled by medical practitioners. Nobody I am familiar with or who has given evidence to the committee already is suggesting that commercial access to extremely dangerous substances like opioids be opened up to the general public. I do not think that is what people are suggesting and it definitely is not my suggestion. I will come back to the point that, if the Deputy is concerned about decriminalisation, decriminalisation absolutely does not equal endorsement or encouragement of conduct. All it means is that the State is not attaching stigma to that conduct any more. The evidence is overwhelming in that regard. The State's strategy was definitely partly based on a view that, if we stigmatise conduct, it will reduce the incidence of that conduct. That has not been the experience. Usage rates in Ireland are broadly comparable to those in states such as Portugal that have gone down different pathways in their response. We have higher usage rates of many substances than are seen in the Portuguese context. As the committee has heard before from other experts who have given evidence, there is no relationship between rates of use and decriminalisation.

On steps towards legalisation, there are many different approaches that can be taken to legalisation. The experience in the United States seems to be that, if you go for a very commercial model of cannabis sale, you may get some uptick in consumption, although this may be temporary. To look at a more stable market, that of the Netherlands where cannabis has been de facto legalised for 50 years, cannabis usage rates in the Netherlands are the same as or lower than those in neighbouring states that have adopted a punitive approach.

I am conscious that I have gone over my time but, in summation, my message is that we should be careful about giving too much credit to the capacity of the State to impose a moral vision of what good conduct is, especially in these areas. As Mr. Glynn said, people have been consuming these substances for a very long time.

I thank Dr. Ó Concubhair and Mr. Glynn for attending the hearing today. Both made very powerful statements in terms of the call for decriminalisation. Obviously a huge part of the decriminalisation conversation inevitably leads us to the question of access to drugs, the market for drugs and this question about legalisation. I know Dr. Ó Concubhair touched on it earlier. In terms of that vision of a regulated model of legalisation, could he paint a picture of how exactly he sees that playing out in Ireland because he talked not just about cannabis, but about MDMA as well? There is a conversation about whether it should be all drugs or a small number of drugs. Could he talk in some more detail about what limits or otherwise the State should be setting down with regard to which drugs should be legalised in terms of his views on legalisation?

If the State is serious about trying to reduce the harm of violent drug black markets, it should move to legally control and regulate all these substances. That can look very different depending on what the substance is. My colleague, Dr. Ian Marder, often says to students that morphine and bread are both legal, but the State adopts radically different regulatory approaches to that. Taking substance by substance, you would look at the evidence of harm. I refer to people such as Professor David Nutt in Imperial College London. He is a world leader in categorising the harms we can attribute to different substances. He places alcohol, opioids and cocaine at the higher harm end because risk of death and addiction are high and the social and health consequences of use tend to be quite harmful. At the lower end of the scale there are things such as psilocybin and other psychedelics, which have a very low risk or almost no risk, of addiction. There can be some harm but much of that is around the lack of regulation of the market. Much of the harm that can result from certain kinds of drug use comes from toxic supply, or a failure of the State to regulate that market. Cannabis is often put at the lower to mid range, with a low to moderate risk of harm. MDMA is put alongside that.

The reason I raised MDMA is that it was unfortunate in the citizens' assembly that not much attention was paid to MDMA for whatever reason. A number of jurisdictions, such as the United States and Australia, are legalising MDMA in clinical settings. There is a growing body of evidence which finds that using MDMA in a clinical setting can be very advantageous in treating post-traumatic stress disorder. There are very good reasons to examine MDMA for that purpose. Beyond that, it is low to moderate risk. There is a low risk of addiction and it is one of the most commonly used substances in Ireland. It would make sense. Some jurisdictions, such as the Netherlands, are beginning to explore what a legal open-access market to it would look like. Some jurisdictions there - they tend to have empowered local democracies - that is, some localities in the Netherlands are exploring what legal access to MDMA might look like for what we call "recreational users", looking at the harms and how to control for that. The nature of MDMA has shifted, particularly ecstasy tablets, over the past 20 years. It used to be that they were very low strength, whereas now they are very high strength. That is causing issues. It is a really good example of the problems arising from the failure to regulate. MDMA in and of itself is not necessarily a very dangerous substance; it just becomes very dangerous in the unregulated market.

In terms of cannabis and other substances such as that, the social club model holds an awful lot of promise because it offers an opportunity. It is maybe not the best opportunity to reduce the criminal market as the evidence seems to be that if we want to quickly reduce the size of violent black markets, we would go for something closer to the Canadian or American models. If we want to balance that against concerns about growth in use, there is evidence from the US stating that problematic use is growing with the commercial model. If we are concerned about that, however, then the social club model is a happy medium between that. It encourages people to cultivate on their own but also gives an opportunity to people who are not in a position to cultivate to lawfully access cannabis in quite a heavily regulated sphere.

I am conscious that I want to ask Mr. Glynn a question and my time is scarce. I thank Dr. Ó Concubhair. That is really useful.

I have a particular interest in police culture and I hear what Mr. Glynn has said about trust and confidence in policing in the UK being at an all-time low and that ultimately, if we have a decriminalised model, it frees up police time. I am interested to hear Mr. Glynn's own views as to the culture within British policing at the moment in terms of the appetite or otherwise towards a decriminalised model. Does he think that would be a major adjustment, given that so much of what the police had been trained to believe was that they were part of the war on drugs? Does Mr. Glynn believe it would be a massive shift to move to a decriminalised model or is there appetite on the ground?

I believe it is probably both. There is definitely a culture of being part of the machine where there is a war on drugs as a police officer and to find a tiny bit of drugs is a success. Being honest, for many police officers the policing of the war on drugs is the most exciting stuff they do. I also hear police officers say, however, that they focus on cannabis because it is the easiest one to focus on. Dr. Ó Concubhair's comments on the different levels of harm is an important principle to keep an eye on when we think about what to decriminalise and legalise first. Police officers will say that it is illegal and they have to do something about it. Some of them will ask that laws be changed and that if cannabis were decriminalised, they could focus on other stuff that is more important. There are some who may be more conservative and traditional and would like to see the war on drugs continue even though we see the futility of it. There are others, maybe a younger generation entering policing, who have a more balanced and nuanced view and would be able to make that transition more easily. It is so encouraging that this committee meeting is being held because this is courage. To look at this as a very difficult and challenging issue and to have these conversations is so refreshing. It is great that Ireland is doing so.

I am in Germany at the moment and they are in the process of decriminalising and legalising cannabis. It has been a very tricky path for them. I was in Arizona last year, where cannabis is legal, and a person can go into a shop and just buy it. I spoke at the Commission on Narcotic Drugs in Vienna a few months ago on a panel of five police people advocating for the use of MDMA to treat PTSD. There are so many benefits in changing course. Accepting that the initial steps are difficult, it is encouraging that we are exploring them.

The Chair might tell me when my ten minutes are up, as I do not have access to a clock. I welcome our two guests and thank them very much for their thought-provoking and sincere presentations.

Dr. Ó Concubhair mentioned the United Nations Single Convention on Narcotic Drugs, which mandates signatory states to pursue a criminal justice-led response on drug use and drug markets. I understand there is a whole range of international conventions and agreements that Ireland is signed up to. Could he comment on those? What would be involved in de-ratifying them? I also note he mentioned the 1977 Act, repealing section 3 of which seems to be the one that would decriminalise it. What is the impact of being signed up and having ratified a number of conventions, not just the United Nations one?

I will preface my comments by saying I am not an expert in international law and to take what I say with a pinch of salt, a grain of sand or however the Deputy wants to characterise it. The thing about the UN single convention and its impact on drug policy globally is the reason states adopted it initially 50 years ago - for example, the Netherlands adopted what is probably the least desirable model towards legalisation and I do not recommend the route it has gone down; it is moving away from it toward a fully legalised route - was a concern about sanctions, particularly financial sanctions from the United States for signatory states that departed from its interpretation of the convention.

That has changed quite a lot because US policy on drugs, of which the committee has heard evidence, is changing quite a lot. Now, the more punitive, pro-prohibition states are Russia and China. My understanding is a state would not necessarily have to withdraw from the UN Single Convention if it was to push for legalisation. The experience in the United States and in European jurisdictions is that it is not necessarily necessary to do so and there will not be any sanction. If a state was to push towards legalisation, there would probably have to be some form of withdrawal from some of those international treaties.

In the context of EU law, the committee has probably heard evidence, and may be aware, that in Germany, the original plan had been to fully legalise and to have a commercial model of legalisation of cannabis, but the fear was EU law and a framework directive from approximately 2008. That was viewed as potentially - and I say potentially and not obviously - being an obstacle to full legalisation. A view was taken that the social club model fitted within the criteria and the wiggle room the State had to legalise a substance. The committee has heard from other people that this could apply to other substances too. There were Germany lawyers writing about this at the time when Germany was going down this road. The framework decision does not have an enforcement mechanism from the Commission and, without that, it does not really seem clear, if a state was to adopt a full legalisation approach, there would be any consequences from the EU. It is not entirely clear. It is also not entirely clear to me how a state would withdraw. I am not an EU lawyer. I am not sure how a state would withdraw from the framework decision. A lot of this will be guided by what Germany does. If it continues towards a more commercial route, it will probably mean it is fine for everyone else to do it as well. I hope that answers the Deputy's question.

I thank Dr. Ó Conchubhair. As I said earlier to our previous guest, one of the issues about which we learnt earlier this week was that when the use of drugs was decriminalised in British Columbia and Vancouver, and also in parts of the United States, it seemed to initially go too far in that it permitted people to use drugs publicly on the streets straight away, which led to a backlash from people who were very uncomfortable with this. I am interested in Dr. Ó Conchubhair's comments in this regard. In Ireland, we have a prohibition against drinking alcohol in public. Would we see, if we were to decriminalise the use of drugs, restrictions on the use of drugs in public places, such as near children and so on, being imposed? What are both Dr. Ó Concubhair and Mr. Glynn's views on this? Dr. Ó Conchubhair may answer first.

It would be sensible for the State, or rather the local authorities, as it would be them drafting the measures, to do so. The measures that prohibit public alcohol consumption are local authority competences. They can create limited criminal offences. It makes sense for the reasons the Deputy has already heard. Public drug consumption makes people feel insecure, even if there is no actual threat. It makes people feel insecure. It makes sense, particularly if the committee and the Oireachtas make the very brave move, as Mr. Glynn said, to go down a route of decriminalisation and potentially legislation, that you would not want to create problems or any kind public backlash.

I wish to qualify this by saying it is very hard to untangle public drug consumption from other social or State failures, particularly in the area of housing. I live in Dublin city centre where we already see An Garda Síochána, most of the time, adopting a very sensible approach, not just to alcohol consumption by people who are experiencing homelessness, but also to drug consumption, to be honest. There is a degree of tolerance because it understands implicitly that it would be absolutely pointless to prosecute people for drug possession or alcohol consumption. However, it maintains that power. That is maybe what Deputy Stanton is getting at, that is, the power of the police to move people along. I do not wish to, or be seen to, endorse a policing-led response to homelessness and all of that because that would be deeply problematic. It would still be sensible to create powers and criminal offences at local authority level as well as create powers for the police to move people away from sensitives areas such as schools and other places, as the Deputy said.

I agree with everything said. I would not endorse more powers for the police; it has plenty already. This is really a matter for the local authority and local communities, taking into account their contexts to see what measures are needed. Sensible measures like an exclusion zone around schools and nurseries seem sensible to me, but they are context specific in different geographies. This is a matter of principle, in that it is a health- and education-led approach as opposed to a criminal justice one in which the police is the primary player. The police has plenty of powers and does not need anymore to be able to deal with the small number of people who may use drugs in a public space in a problematic way.

The smoking of cannabis is an interesting issue in its own because it is just people smoking. One of the reasons it makes people feel unsafe is because of all of the hype of the war on drugs and the media about how dangerous all of these things are. There is almost a public education needed there for people to realise that cannabis smoking in and of itself, in a non-excessive way, is not something to be afraid of. There is an education requirement there that the State should undertake.

I thank the witnesses for the presentations. Sometimes, there is a fear. People fear that politicians moving towards a response to drug use in a health way is somehow saying that addiction or something is okay. There is this shift that does not seem to happen in people's head in that you cannot police your way out of addiction. The response to addiction is never a policeman, a judge or a cell. I refer to the idea that somehow having this moral oversight from a policing perspective is somehow going to address addiction in any shape of form. We need to make a real effort to be able to separate those two things. I have always struggled to understand how we can seem to untangle it. I wonder whether it is a frame of mind in terms of the types of people who visibly end up in addiction. There is a level of profiling in that for me in terms of poor communities, vulnerable communities, black and brown communities and the Traveller community. If we are looking at addiction as being a thing to which we want to respond, we need to look at how we can shift that culture from a law being needed to respond to addiction to looking at why there is addiction in the first place and what addiction is responding to, especially when it is felt by whole communities or certain communities. It is not even a policing question for me. Who is creating that narrative? Is the police creating the narrative that we need to have this because it has no other way to profile these communities and arrest them for all these other things if we do not criminalise addiction or is there a societal lack of understanding as to why addiction exists in the first place? It is not necessarily because of supply; it is a completely different thing. I am not sure if I am being very clear. Maybe Dr. Ó Concubhair and Mr. Glynn can come in.

I am happy to respond. I understand what the Senator is getting at, that is, the origins of the stigmatisation of drug use. It is an interesting question. States - and not just this State, but lots of them - respond very differently, depending on what substance a person is addicted to.

I do not just mean drugs versus alcohol. The response to addiction to prescribed drugs, for example, tends to be quite different from the State's perspective. The misuse of drugs that are legal may still involve criminal offences but we do not see that policed in the same way. It also depends on what community the person is drawn from. The history of drug prohibition is really rooted in victimising certain communities in the US, and very much targeting the black American population, the Mexican-American population and the Chinese-American population. There were key drivers to selecting which substances were going to end up with a criminal justice response.

With regard to addiction and State responses, I have a degree of sympathy. The Oireachtas and other politicians have a limited number of levers they feel they can pull. When politicians see a problem, I can understand that a lot of them feel they need to ban something, and that this would be the response. It is not just in relation to drug use. It is often in relation to other substances. It is not a surprising response even if it is not evidence led. I hope that answers the Senator's question.

Police do not want to be dealing with addiction. It is not their job and they do not see it as their job. For me it is an opportunity to shift resources. Addiction services and harm-reduction services are often the first to be cut when resources are tight and yet it seems there are always resources and money available to buy the latest kit and equipment to carry on with the war on drugs. This is an opportunity to divest some of that financial resource and that emphasis away from the criminal law and into harm reduction and education. It is also an opportunity to have some patience and to give time to the addiction services that deal with those deep-rooted challenges people have, which can be generational and are not fixed in a day, a month or a year. In my initial statement, I spoke about giving these different approaches time to succeed but also the resources and the political support they need to succeed, which is also crucial.

It is very interesting to read the Official Report of the Irish Parliament when it was introducing the drugs Act. It took a few years to pass. Most of the commentary at the time did not support criminalisation at all. Politicians very much spoke about how they did not feel people should be criminalised for possession of drugs. They then set up a special committee, which at the time - this is going back 40 years - also recommended that the State should not criminalise people. The State ignored this recommendation. Its only intention was to fulfil the treaty obligations, and not because it made any sense and not because there was a rise in, or a need to respond to, particular drug use at the time.

In some places, we are spending 40, 50 or 60 years undoing legislation that was only ever enacted because of the power of the United States of America to endeavour to criminalise poor people and, as I said previously, because Harry Anslinger did not want to lubricate interracial relationships. He thought that marijuana would lead to white men having sex with black women in jazz places. When we trace it back, we have spent decades having to undo something that never made sense in the first place. Sometimes we might need to remind people of that instead of getting into the weeds of policing or the rise in drug use and so on. This was never about addiction or people. It was only really about criminalising certain populations. That was more of a statement than a question, so I will leave it there.

I thank the witnesses. We know that the war on drugs is not working and having this committee is proof that it is not working. If it was working, there would be no need for any of us to be here today. The citizens' assembly was the same.

I was interested in what was said on race and class in the war on drugs. I come from an area of disadvantage. Stop and search was something I grew up with. Even when going to the shop, we were stopped and searched. We would be stopped and searched when going to football training. If we were with more than one person walking down the road, we were stopped and searched. There was no rhyme nor reason to it.

My first question on that is to Mr. Glynn. For that to change, there will have to be a cultural shift in An Garda Síochána. My fear is that gardaí will look at other reasons to stop and search people from disadvantaged areas and different backgrounds. For example, they could use an increase in knife crime as a reason to stop and search. Does Mr. Glynn see that as an issue going forward? Does he see that a cultural change is needed in An Garda Síochána to stop that stop and search? How would he suggest going about that?

To be honest, I do not have a lot of experience of the Garda but I do of the metropolitan police in the UK . I have said before that they are addicted to stop and search. There is a challenge there, yes, and a cultural shift is needed. The work I did in early 2012 and 2013 on policing in England and Wales showed a massive reduction in stop and search because of a political drive to say these powers are intrusive and they can create and drive a wedge between young people and the future population and police authority. While some of those powers are still necessary, they should be used sparingly and they should only be used when necessary and there is a legal basis for doing so. The experience the Deputy just shared of being stopped and searched in his youth may be someone's first experience of policing and it should not be that way. If decriminalisation is to be the next step, then that is a transition the police need to buy into. One of the ways this can happen is for them to see the advantages of decriminalisation, giving them time and opportunity to focus on other things that are more important and that are closer to why they are there, which is the protection of life and property.

One of the stop and search powers in the UK is under question at the moment. It is section 60, which is a suspicionless stop and search power that has been massively abused and misused by the police. Scrutiny and oversight of these powers is really important. There is a challenge for policing to accept that they may not be able to stop everybody in the street when they want to because they do not have the legal power and right to do so. That is a difficult conundrum for them to accept sometimes.

I have a question for Dr. Ó Concubhair. We heard Deputy Stanton earlier speaking about unintended consequences that happened in British Columbia with the increase in public drug consumption and the impact that was having on the well-being and wider society. Are there any other unintended consequences that we should be concerned about, both positive and negative, if we were to move to decriminalisation in this State?

Managing public expectations is really important because there is a risk of backlash and making politicians anxious about decisions, as we saw in the Oregon experience where there has been an effort by the elected representatives to undo a popular vote, which is a really good example of the kinds of unintended consequences or risks we should be very conscious of. Maintaining or encouraging local authorities to prohibit public consumption is a smart way but it is not just that.

The Deputy's question for Mr. Glynn on the stop and search powers is related to this and it may be a big problem in Ireland. In the UK, specifically England and Wales, and for very specific historical reasons, no less the fallout from the murder of Stephen Lawrence and other things, they have a very sophisticated conversation at a political level about stop and search powers and about police powers in general that does not exist here.

Politicians are perhaps one of the few groups who would raise this as an issue. There is no scrutiny or oversight of An Garda Síochána in terms of its use of powers. If it collects any data about how it uses these powers, it does not publicise them. My understanding is the An Garda Síochána does not gather data, so we have no idea what it is currently doing with its stop-and-search powers. My suspicion is that Ireland is closer to Scotland, where the rates of stop-and-search powers used were far higher than in England or Wales. As Mr. Glynn said, if you do not have oversight - both politically and by the relevant oversight mechanisms like the Policing Authority - these powers will end up being overused. That is the case, especially if there is not a political commitment. The police are political in their own way. If police leaders are not committed to reducing excessive use of stop-and-search powers - there have never been any indications from An Garda Síochána that there is a desire to reduce its use of these powers in particular communities - one of the consequences that might be missed would be an effort to engage with that. I refer to police-community relations, particularly in the most marginalised areas, because these powers are not being used in Ranelagh or Donnybrook. They are overwhelmingly being used to target marginalised communities. A conversation in that regard needs to be had.

I do not know which of the witnesses can answer this in the brief time left. We look to be moving towards the introduction of body-worn cameras here for gardaí. Would it be a way of limiting stop and search if gardaí had to have a reason for doing it and they would have to prove why they were talking to somebody?

The important questions relate to scrutiny and oversight. What are police officers doing with those stop-and-search powers? When are they using them? Who are they using them on? The police have all of that data or they have the ability to collect it, and it should be shared publicly because they should have nothing to hide about how they use those powers. To give credit to the police in England and Wales, much of that data is collected and shared publicly. That is a good way of starting an effective conversation around scrutiny and oversight and stop-and-search powers with the public as well as with the police leaders.

Body-worn cameras are here to stay. I do not think we can turn the clock back on those. They have a function in scrutiny and oversight, but there are lots of barriers to accessing the body-worn footage where those stop and search powers have been used. I refer to whether the camera has been activated and whether it is activated early enough before an interaction starts. A great deal of detailed work needs doing there to make body-worn cameras part of an effective tool in terms of scrutiny and oversight of police powers.

I thank Mr. Glynn and Dr. Ó Concubhair for their opening statements. My first question is for Dr. Ó Concubhair. This debate has probably evolved in the past five or six years in terms of where people are at, both politicians and the public. We have progressed to a point where people are thinking about alternatives to what we have had in the past six decades, which was a complete failure. The authorities have talked about a health-led approach, but that is largely lip service in terms of where we want to go. We had officials in here some weeks ago talking about a health-led approach and a diversion approach. My view is that is very discretionary and arbitrary, but that is the road they want to go down in an Irish context. They do not want to amend or change the Misuse of Drugs Act, which is where a lot of the problems originate. Do the witnesses agree that the Department of Justice and elements of the police and political establishment are more than happy to keep the status quo rather than going down the road of decriminalisation in the Irish context? That means it is largely lip service.

I agree that there is a good deal of political anxiety. From the soundings from An Garda Síochána in terms of the media blitz they engaged in regarding the assembly, they have made it very clear that they are opposed to decriminalisation or legalisation. I do not think it is controversial to say that.

In terms of recommending anything short of the repeal of section 3 – I attended the citizens' assembly for a weekend to observe. I did not present to it, but I got the opportunity to speak to people. It was very clear the emphasis was on destigmatisation. The language in the room was designed to remove stigma around drug use because it has been extremely harmful. You cannot remove stigma if you maintain criminal offences. That is what they are there for, namely to impose stigma. Any measure short of reducing that will mean people will continue to be prosecuted.

What is interesting about what is happening in England specifically is that at a political level there is no appetite whatsoever to move on from the status quo, but certain police forces and police leaders – for example the chief constable in Durham Constabulary – are very different to those in Ireland in that they are leading and moving away from stigma. They cannot decriminalise because the law is set by Westminster but they have been bringing in diversionary measures, which have been very successful. They have been subject to academic analysis by people like Matthew Bacon in Sheffield. What is interesting is that there is pushback at ground level. Some individual officers at the coalface are embracing it but others are not. Senior officers are having to manage that cultural opposition. What that tells us is that even when you have senior police officers who buy in to the project of trying to remove stigma, which is not the case in Ireland currently, individual officers on the ground, who are the ones to hold the discretion about whether or not someone would be diverted into one of these arrangements, are ignoring what is happening at a more senior level. We can see that already from the adult cautioning system around cannabis, where there has been very little uptake. The vast majority of people who are being caught are still being prosecuted for cannabis possession. A number of District Court judges have gone on the public record stating their opposition to any move away from the status quo. What that tells me at least is that if cases come before them, they are going to convict people.

I agree with everything that has been said. The challenge is that if you do not change legislation, it is quite difficult to effectively change practice at the coalface. As Dr. Ó Concubhair just said, you can have senior leaders in policing saying one thing, but what happens on the street with constables and sergeants can be a very different thing. One approach is education, persuasion and the like, but if there is an opportunity to change legislation it forces police officers - in a good way – to say that they are going to take that approach because the law has changed. The example I use is that in the police codes of practice around stop and search, I introduced in the guidance from the College of Policing the fact that the smell of cannabis alone should not be grounds for a stop and search. That was introduced into the guidance, but what we were not able to do was to change the law. Unless you are able to take the next step and change the law, you can understand why some police officers do not get on board with it. In the interim, the approach that Dr. Ó Concubhair mentioned in Durham with Mike Barton, who was the chief constable at the time, was that they have more important things to do than deal with somebody growing a cannabis plant in their house, and they are not bothered about that. Again, that is people having the moral courage to get ahead of what the legislation is saying, but you need to change the law and the rules and bake in those changes in order that they cannot be reversed if political will or sentiment changes.

I 100% agree. That is my concern in terms of where this debate is going. Some of us in the committee have those concerns. There is opposition from the top down, and from the bottom up, in terms of where we want to go. When the dust settles on what the committee agrees, the next Government will have to deal with it. There is still huge conservatism among the powers that be, particularly the police, whereby they do not want, in any shape or form, even to address the issues with the Misuse of Drugs Act. We are left with the status quo, which then becomes a policy. The result is that people die and communities are wrecked. As long as that approach continues, the status quo will remain.

We must be bold and radical in trying to save lives. I receive a lot of emails but one I got during the week really struck me. It was from a woman in Dublin who has lost her son and sister to drug abuse. It was a very long email. She said this is about life and death. If we can change policy, she said, we can save lives. If we can save just one life as a result of the direction we take, all the time we have spent on this discussion will be worth it.

The Garda Commissioner has been invited to attend a meeting of the committee. He, or somebody nominated by him, will do so in September. The Deputy will have the opportunity to put the points he has made today to the Garda Síochána representatives, as well as Dr. Ó Concubhair's characterisation of the Garda's approach to the citizens' assembly. Those points should be put to An Garda Síochána. I will not be here. The points should be put to the Garda representatives at the meeting in September and, in fairness, they should be given an opportunity to respond.

I have a few questions, after which I will go back to members for a second round. Dr. Ó Concubhair made the very interesting point that criminal offences, at their core, are designed to impose stigma and that we cannot remove the stigma around conduct if we maintain criminal offences in respect of that conduct. On the other hand, he cautioned about the limits of the State in imposing a moral code based on the criminal law. Without wishing to mischaracterise what he said, he seemed to argue that criminalisation has not resulted in a negative perception of drug use in certain communities. He talked about the purposes of the criminal law. One of those purposes is to provide a deterrent. Certainly, that is what I was told when I studied criminal law a very long time ago. Is there not something of a contradiction in his position? On the one hand, he is saying we cannot destigmatise without decriminalising and, on the other hand, he is saying criminalisation has not resulted in a deterrence or a stigmatisation.

Criminalisation has been very effective at stigmatising conduct. The evidence for that is really strong. It can play out in many realms, including impacting on people's careers and their ability to engage in all sorts of activities that other citizens are allowed to do. The State has huge power in its ability to shape people's lives in those respects. What it has not been very effective at doing is deterring, that is, changing people's attitudes to the activity itself. As we have already discussed, for the vast majority of people who engage in drug use, it is not problematic. They do it because they see it as adding value to their lives. The question then is whether it is legitimate for the State to continue to punish and stigmatise that conduct if it is not achieving other aims, namely, deterrence or harm reduction.

My point is that the State has great power to impose societal stigma. Some of the pushback we see and some of the anxieties we hear from members of the public really demonstrate that. What the State has not been successful at doing is providing deterrence. The two things are fundamentally different. Stigmatisation absolutely can have deterrent functions but, at its core, at least in my view of the criminal law, stigmatisation is more to do with imposing just desserts. It is a retributive view. Part of the function of the criminal law, and it is often appropriate, is to impose just desserts. That is really what the stigmatisation is doing. It is less about deterrence. The deterrence might come from the punishment that is imposed. In the Irish context, the potential punishments are quite harsh. The stigma itself is really around making a moral judgment on the conduct.

I thank Dr. Ó Concubhair. In Mr. Glynn's opening statement, he said he has seen at first hand how police powers under the Misuse of Drugs Act are used, abused and misused by police officers. It is important to point out that he is talking, I presume, in a UK context and in reference to the UK legislation. Will he elaborate on what he called the use, abuse and misuse by police officers of the powers given to them under that legislation?

I am not just talking about the UK police. I have worked with policing in the Netherlands, Belgium, France and Spain as well. The powers are misused in many ways. For instance, the powers to stop, do identity checks and search for drugs are seen by some police officers as a gateway into controlling places, or, as they might say, controlling the streets. I have spoken to police officers who said they were not really comfortable approaching a group of youths on a street corner or whatever. The way they have done that is to search them. Some police officers see that as a form of engagement but, in fact, it is the use of a coercive power. Often, the use of search powers in regard to drugs is a gateway into the use of other powers, including, of course, the use of force. We see interactions that start with a stop and account or a stop and search and can end up in a death because the situation escalates.

Police officers often have numerical targets they must hit. There has been some pushback to that in England and Wales over the years but it ebbs and flows. There will be police officers who approach people saying they smell cannabis because that is impossible to disprove. If they say they can smell cannabis, they cannot be proved wrong. They will then search people and will, of course, find nothing because there was nothing there in the first place. However, it ticks a box on the spreadsheet. In particular, the experience in England and Wales of the operation of section 60 of the Criminal Justice and Public Order Act 1994, which covers without-suspicion stop-and-search powers, was that those powers were massively overused. As officers did not need reasonable grounds to search people, they could use them in a particular geographical area over a limited period. The powers were massively overused to no avail. The find rates on those searches were minuscule but they were ticking a box on a spreadsheet. As I said, regarding the suggestion that police officers might need more powers, if certain drugs are decriminalised, in order to manage public spaces, it is important to note that police have plenty of powers already, have had them for a long time and we are still in the situation we are in. Different approaches need to be taken other than police use of powers.

That is obviously a problem, as I have stated. This issue has come up informally. As an academic, it is very difficult to do research on An Garda Síochána in comparison with the UK. It is very difficult to get access but I have spoken informally to many gardaí over the years about this. I have spoken to many defence and prosecution barristers as well. Outside of the Dublin metropolitan region, gardaí do not have stop and search powers under the Criminal Justice (Theft and Fraud Offences) Act 2001. If a garda legitimately suspects someone of engaging in theft or fraud he or she cannot search the person under that Act. What people have told me, consistently, is that gardaí will resort to drug search powers. Whatever the merits or legitimacy of trying to search that person, that is an unlawful search. The Garda Inspectorate has recognised that. It has identified potentially significant unlawful use of drug search powers in the Irish context. I do not think there is any reason to believe we would be any different in an Irish context from the UK or Scotland, where overuse of those powers was even more pronounced. We just do not have the data. Anecdotally, as Deputy Ward stated, in certain communities these powers are deployed extensively on the community and often with little basis for the use of those powers.

That trend will follow into those conversations with the Garda. I am always struck by the reluctance in Ireland. It is as if the Garda profession is somehow above criticism or reform. It does not sit well with me because I look at policing from the perspective of improving it in order to keep everyone safe and improve everyone's lives. It is not a personal thing. Rather, it is looking at the institution. It is not an individual attack on any particular garda. Sometimes people seem uneasy when it comes to actually talking about the role of the Garda or its lack of ambition with regard to its capacity to engage in better policing to increase community safety. I was stopped and searched as a child, often without any adult present. Once there was a ban garda present, that apparently gave full permission. I do not know what the legal context was at the time but I was a child who knew no better. We began to run from the Garda. We did not have anything on us and we did not need to run but it was nearly like an automatic response that when gardaí came they may have stopped and searched us, so we ran. The negative relationship that creates at such a young age is what I want to address. I want that not to exist. I want people to feel safe in their communities.

The criticism is not to remove the Garda from existence; it is actually to improve the system we have. I am baffled as to how we begin to do that when we have a police force or people at the top level saying they are against decriminalisation. If people are criminalised they end up with a criminal record and it actually impacts their recovery. Police position impacts recovery because it impacts what people can avail of if they enter an abstinence model. They may not be able to get a certain job and they will not be able to study social work or go on to be a midwife, nurse, youth worker or drugs counsellor. They will be vetted and told they cannot do this job with vulnerable adults because they have a drugs possession charge, and that is rated the same as murder in this country in the context of Garda vetting. The fact is we have a police force saying it is okay with impacting addiction, recovery and opportunity and getting in the way of people actually progressing their lives. I just cannot understand why there is not a backlash to that. Deputy Gino Kenny said we need to be radical but there is absolutely nothing radical about that. It makes pure sense to decriminalise and take policing out of addiction and drug use in general.

Mr. Glynn may be able to tell me whether Ireland is a unique case in that nobody within the police force is willing to say this is not okay from a policing perspective. I have worked with police in the UK who are quite clear on this, state de facto they do not want to arrest people any more and are breaking ranks. There are people who use drugs in the police force. Nobody in Ireland is breaking ranks. Is that unique, from Mr. Glynn's perspective of working globally?

I do not think it is unique. It partly depends on the different contexts in society and how conservative a police service is. Is it even called a police service? That varies in different countries. The point the Senator made, which is so true, is that this is not radical. This is common sense. This is looking at the evident. One of the things that is common among police forces globally is that they talk about doing things based on the evidence. There is a society of evidence-based policing that has chapters all over the world and yet they generally ignore all of the evidence on drugs and drug policy, legal regulation and harm reduction. They pretty much ignore all of that evidence. Maybe the radical thing is for policing to take this evidence seriously.

Police forces do not all think the same. There will be individuals at a senior level in the Garda who agree with this view. Seeking those people out when they are in positions of influence and providing them with the support, opportunities, insights and expertise to support these kinds of critically important initiatives absolutely needs to be done. There needs to be an appeal for those open-minded leaders in policing in Ireland who will publicly support this. They are there but they may not have not broken ranks yet.

My question is about a parallel universe but I will pose it anyway. We all agree alcohol is an accepted drug, whether in Britain or Ireland, for better or for worse. It is accepted, taxed, readily available and marketed very cleverly by alcohol companies. There are obviously health consequences to alcohol consumption, particularly dependency, and it will kill tens of thousands of people, if not hundreds of thousands of people, per year. What would happen tomorrow if alcohol was suddenly made illegal and the war on drugs became a war on alcohol? What would the consequences be in terms of all of those things I just mentioned?

Yes, I can go first. We know the answer from when it was tried in the US. That is where we got cocktails from, as that was how alcohol was disguised in the drinks. The lessons from history are very clear. Prohibition does not work. We need all of the things the Deputy just mentioned around alcohol. I would also include safe and secure supply and dosage, if we want to use that phrase, for alcohol as a drug.

It is a matter of whether it is 40 proof, 15 proof or 5 proof. These things are all important. It is an imperfect world and some people will still use too much of it.

One of the other interesting points on prohibition is that challenges will still be experienced along the way. America gave us a great example of the fact that the prohibition of alcohol does not work. We have taken an alternative model. It is largely successful but this is an imperfect world, which we have to accept as well.

Let me refer to some of the other consequences of prohibition in the US that we can note. There was a 400% increase in deaths, or more, due to toxic alcohol. The supply in the market became highly toxic and dangerous and there was a dramatic growth of organised crime in America. It evolved from prohibition because those concerned were handed a gigantic market. There was still massive demand. The consumption of alcohol dropped, but not dramatically. It dropped by about 20% but deaths skyrocketed because of the toxicity of the supply. Also, as Mr. Glynn said, part of the dynamic observed during prohibition involved what was sometimes called the iron law of prohibition. Some economists say the greater the escalation of penalties and coercive restrictions on substances, the more potent the substances become. What happened during prohibition was that beer disappeared and was replaced by higher strength alcohol, for a variety of reasons. It is easier to transport higher strength alcohol. Some people think that part of what is happening in the US with the growth of the fentanyl supply is that higher potency opioids are easier to transport in smaller amounts to avoid detection. It is the same with higher strength alcohol. What we would probably see would be the disappearance of porter and beers and the growth of drinks of higher strength, which are more dangerous. Part of the dynamic is that in unregulated markets, the substances become increasingly dangerous. Even if they are not toxic themselves, they can become dangerous because of their strength and the failure to regulate appropriately.

I agree. What is interesting is that if we examine the development of war-on-drugs policies in the US, we note that those involved in promoting the prohibition agenda turned their attention to drugs when that agenda failed. They did not see prohibition as a failure; they just lost the political argument and then turned their attention to drugs, which were perceived to be more of a race-related problem. It was not that only Mexican Americans, Chinese Americans or black Americans used the substances; everyone used them but they were perceived to be a problem only in their communities, and policing resources were deployed almost exclusively in them to deal with the problem.

Conversely, the legalisation and regulation of alcohol in Ireland did not necessarily prevent the sale of illicit alcohol. I do not know what the story is in Dublin, but in Clare you will still see bottles of poitín on occasion. Has anybody ever studied the factors that led to a reduction in the production and sale of illicit alcohol in tandem with the sale of lawful, regulated, licensed alcohol?

That is a very good question and one I did try to answer on a few occasions. I have looked into it. The US did not act. I cannot find anything on how quickly the black market disappeared. One criticism you may hear about efforts to legalise cannabis specifically is that there is still a black market. The evidence is really strong that it has dramatically declined. At the beginning of the conversation, no one thought a completely illegal market could be replaced with a legal one overnight. It takes time to develop capacity overnight in the legal market. No matter what, even when there is a stabilised market, there will be illicit production for cultural reasons. The illicit production of cannabis might not be illicit in a regulated, legal model as we might still want to encourage people to produce the product themselves.

In Ireland, many people brew beer. It is not illegal; it is illegal only to distil. There will always be a small percentage of the market that is illegal. I also grew up in County Clare but believe there is less poitín floating around now than when I was a child. There was certainly an awful lot more of it in the 1920s and 1930s, but the reason for that had more to do with poverty and the inability to purchase easily in the lawful market. That seems to be the key driver. Whatever remnants are left in countries like Ireland seem to be more associated with cultural attachment, and that seems to be dying out as well. There is no research on this; I am just giving anecdotal evidence and my own observations. However, I believe one will find in other markets and with other substances that people prefer the lawful market because they do not have time to produce the product themselves. The pinch point tends to be cost.

With tobacco products, we are probably now at a sweet spot in the Irish State between taxing so much that you can perhaps dissuade people from consuming and reinvest in health services and not taxing so much that people do not want to engage with the regulated, legal market. Some states in the US, like Massachusetts, have had difficulty legalising cannabis because their models are overly restrictive. It is very expensive to get a licence to produce cannabis in Massachusetts. The black market has remained larger. What we might characterise as the black market can mean many things. Is it not a violent black market in Massachusetts; it involves individual growers who, although not licensed to sell, are selling informally on the black market. That is more akin to the poitín trade in the west of Ireland, as it has been over the past 50 years. Not having a black market is not necessarily a bad thing if there is not a whole lot of harm associated with it. In this regard, we must ask whether the supply is toxic, which would obviously be a problem. More important, we must ask whether there is violence associated with the black market. There may be some legacy black market if a state decides to regulate some of these substances. The question then concerns how harmful the substance is, how big the market is and the regulatory measures the state needs to adopt to reduce or address it.

I thank Dr. Ó Concubhair and Mr. Glynn very much for staying with us this morning and for the information they have imparted to us. It has certainly been very interesting and useful. Today is my last day as Chair of this committee. I wish to put on the record formally that I hope some of the observations made on An Garda Síochána might be put to it as a matter of fairness when there is a Garda representative here. If Senator Ruane is in the Chair, I ask her to do it, although that is a matter for her. If another Chair is selected, maybe my request will be brought to his or her attention.

I thank the witnesses. As this is my last day as Chair, I very much thank all three of them for the very large amount of work they have done and for the degree to which I have been indulged because of my disorganisation and the fact that, at least at the start, my attention was probably elsewhere. I also thank the committee members for their indulgence and for staying with me. I will not be around for any of the deliberations and the making of recommendations, but I wish the members very good luck with those. Thank you very much.