EARLIER THIS WEEK, Evelyn Corrigan – a 68-year-old woman suffering from glaucoma and spinal stenosis – was found not guilty by a jury of possessing nearly 325 grams of cannabis for the purpose of sale or supply in 2017.
Ms Corrigan had, however, freely admitted to – and was duly convicted of – possessing the drug for personal use. Ms Corrigan had grown the cannabis herself outside her Dublin home. She told Gardaí, and the jury in Dublin Circuit Criminal Court, that she cultivated and used the drug to help manage the chronic pain caused by her illnesses.
In explaining what appeared – to Gardaí and the DPP at least – to be a large amount of cannabis in her possession, Ms Corrigan claimed she had not anticipated that the plants would grow so large. Judge Pauline Codd applied the Probation of Offenders Act in relation to Ms Corrigan’s admission of simple possession, meaning that she did not receive a criminal conviction. This is to be welcomed, as society would have benefited little from a harsher penalty.
Wasting court time?
While many aspects of this case might be criticised – not least, the ongoing criminalisation of cannabis use for medicinal purposes – here we wish to challenge the decision by Gardaí and the DPP to charge and prosecute Ms Corrigan. First, we will question whether she should have been charged with the specific offence of possession for the purpose of sale or supply: the ‘dealing’ offence. Second, we will ask what public interest was served by the decision to bring any prosecution in her case.
In the interests of full disclosure, one of us – Dr Cian Ó Concubhair – admitted to, and was convicted of cultivating cannabis for sale or supply in 2010. These experiences of cannabis cultivation – and prosecution and conviction – assist us in interrogating the approach of Gardaí and the DPP in Ms Corrigan’s case: particularly these agencies’ understanding of, and response to, cannabis cultivation and use.
To our first point then: should Ms Corrigan have been charged and prosecuted for dealing in the cannabis she had grown? If we take the jury’s determination of not guilty, the answer is surely no. But failure to achieve a conviction is not, in and of itself, a sound basis for criticising a decision to prosecute. The DPP presumably believed there was some prospect of convicting Ms Corrigan for dealing, based on the amount of cannabis found in her possession.
It is this presumption that provides grounds for legitimate criticism. The Court did not hear any evidence to suggest that Ms Corrigan was, in fact, selling or gifting her cannabis to others: suggesting Gardaí did not find any such evidence or did not look. Based on the DPP’s cross-examination of Ms Corrigan, it appears the only basis for the charge of sale or supply was the amount of cannabis she had in her possession.
Normally when trying serious criminal offences – and here, Ms Corrigan faced up to 14 years in prison – Irish courts would not allow a charge to go to the jury where no evidence was offered by the State. Why, then, was the very serious charge of dealing put to the jury?
The answer lies in how the law is structured to favour the prosecution in these cases. Under s15 of the Misuse of Drugs Act 1977, if you are caught with an amount of drugs deemed too much for personal use, a jury is permitted to assume you are engaged in sale or supply. In other words, s15 allows a jury to convict someone of drug dealing, even if the State provides no direct evidence to support the charge. This is why it was possible for Ms Corrigan to be prosecuted for the dealing offence.
But is 325 grams of cannabis too much for personal use? By growing the cannabis plants outside, a more environmentally-friendly approach to cultivation than energy-intensive indoor growing, and a more socially-friendly approach than purchasing on the black market, Ms Corrigan was more likely to cultivate larger plants, predictably resulting in a greater harvest. Outdoor cultivation does, however, limit the average grower to a single harvest a year.
Accountability of agencies
So, was Ms Corrigan’s harvest a large amount to consume for personal use in a year? At less than a gram per day, this is a modest amount for someone using cannabis for chronic pain management.
Why then, given Gardaí and the DPP are held to be experts on these matters, was a charge of dealing brought? It is difficult to say. Perhaps it is because Gardaí and the DPP do not in truth understand cannabis cultivation: a question of competence.
Alternatively, it reflects a desire to bring the most serious charges conceivable in a given case. The politics behind crime statistics can provide a powerful incentive for criminal justice agencies to inflate the seriousness of offences they claim to have detected. Either explanation could shed light on their tendency to overvalue cannabis plants and other drugs, often raising eyebrows among researchers and users.
While the Oireachtas has been relatively enthusiastic about requiring the DPP to explain their use of discretion to victims of serious crimes, there is little appetite among lawmakers for requiring our public prosecutor to be transparent about their decision-making.
The failure to require an extraordinarily powerful State agency to explain how it uses its power raises numerous concerns: not least whether that power is being used fairly and to the benefit of society.
Under the Misuse of Drugs Act, the law allows for wide discretion to prosecute without any evidence of dealing. This permits the DPP to routinely (and, perhaps, cynically) bring very serious criminal proceedings – a particularly traumatic experience for Ms Corrigan – solely on the basis that they believe the value of a seizure is high.
Secondly, as policies and practices regulating drugs change rapidly around the world, even the decision to charge Ms Corrigan with possession – which ostensibly must have been determined to be in the public interest – can be questioned. Research clearly demonstrates the medicinal value of cannabis, and Ireland began a five-year pilot in 2019 providing access to cannabis for medicinal purposes.
However, this programme is restricted to a narrower set of health issues and products than those of comparable programmes elsewhere in Europe, and there is little evidence to suggest the scheme is easily accessed by people who fall within its remit. Nonetheless, that the tide is turning in favour of these patients should weigh heavily on prosecutorial decisions.
Lack of common sense
Meanwhile, the recent case of Paul Lee, a former heroin addict prosecuted for €4 of cannabis that he claims to use to manage his chronic pain without opiates, further demonstrates the cruelty and futility of criminalisation. How the public interest was served in the case of Mr Lee, who is awaiting sentencing, is unclear.
Yet, even the recent change to the Adult Cautioning Scheme permitting its extension to cannabis possession would not have helped Mr Lee because of his prior convictions. Had Ms Corrigan’s case started more recently, it is possible she might have benefitted from this development.
Still, the DPP could have opted not to press charges, exercising the discretion they enjoy when deciding, for example, if it is in the public interest to prosecute an elderly, disabled woman for self-medicating.
Quite apart from the prejudice standing in the way of certain substances being adopted for medical purposes, Ireland’s drug laws are no longer fit for purpose. The criminal law and penal sanctions are not effective methods of reducing the harms caused by drug use. In this context, Ireland’s medicinal cannabis pilot and the extension of adult cautions are positive, if small, moves towards the inevitable decriminalisation of drug possession.
In the meantime, Gardaí and the DPP must recognise that prosecution can exacerbate the harm caused by drugs, and use their vast discretion in ways that serve the public interest.
Dr Cian Ó Concubhair is Assistant Professor in Criminal Justice at Maynooth University Department of Law. Dr Ian D. Marder is Assistant Professor in Criminology at Maynooth University Department of Law.
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