Does a judge have complete discretion in a drugs possession case?

Harambin

Can a judge exercise discretion to acquit someone with no charge, and no record, if the facts of the case are that that person did in fact possess controlled substances?

pioneerpro

Harambin wrote: »

Can a judge exercise discretion to acquit someone with no charge, and no record, if the facts of the case are that that person did in fact possess controlled substances?

Yes.

https://www.independent.ie/irish-news/courts/student-really-stupid-to-import-10000-of-ecstasy-says-judge-40129266.html

In a stunning coincidence, the student in question shares a last name with a prominent legal firm.

Harambin

Thanks pioneerpro

Is this common? I mean in cases where the person is a respectable person (professional job, family person) and the offense is trivial (small amount, personal consumption)

pioneerpro

Harambin wrote: »

Thanks pioneerpro

Is this common? I mean in cases where the person is a respectable person (professional job, family person) and the offense is trivial (small amount, personal consumption)

You'll get banned for answering that question I'm afraid. We're a particularly litigious country.



FWIW, the above case was *dangerously* close to the mandatory sentencing requirement btw. €10k worth of MDMA isn't trivial in any sense of the word.

The flipside is that people like Judge McNulty frequently decide to go on personal crusades from time to time over possession charges, and end up getting all their rulings overturned in time due to being so far out of line with sentencing guidelines and proportionality.

https://www.echolive.ie/corknews/arid-40135295.html

Sean O’Leary, a 27-year-old pharmacist of 38 Kileen Woods, Tralee, pleaded guilty to possession of cocaine worth €70 when searched at 6.17pm by plainclothes gardaí on May 5 last.

Mr Fleming said his client’s employer was standing by him over an “aberration”.

Mr O’Leary had no previous convictions and had been given cocaine by another person.

Judge McNulty said Mr O’Leary knew better than most the risks associated with ingesting “something that came from God knows where, made by God knows who”.

"Sadly, Mr O’Leary is an example of a gifted, privileged, spoilt generation."

He sentenced him to 30 days in prison, despite the emotional pleas of the accused’s father in court.

The people in question can consider themselves *extremely* lucky that he want on record beating his drum about his personal views on cocaine and the Kinsale 7s *prior* to the event.

https://www.southernstar.ie/news/judge-voices-his-fears-over-level-of-cocaine-use-at-kinsale-7s-festival-4201515

In the end there were 12 Appeals Upheld and convictions overturned - all from one Judge in one sitting. Must be a record!

https://www.irishexaminer.com/news/arid-30987150.html

A total of 12 people labelled by a judge as supporters of the “murderous” drug trade have had their convictions for unlawful possession during last year’s Kinsale 7s rugby event overturned on appeal.

They were part of a group of what Judge James McNulty described as a “parade of graduates and aspiring professionals” who were arrested and charged after being caught with cocaine at the annual rugby event.

Yesterday, another judge allowed their appeals against their fines and convictions, saying “everyone makes mistakes”.

Samuel T. Cogley

I'm not sure it's technically correct to say you've been acquitted*, but the Probation Act maybe applied leaving one with no criminal record. A substantial donation to the poor box may be required. How often this happens I have no idea.

*open to correction of course.

pioneerpro

Samuel T. Cogley wrote: »

I'm not sure it's technically correct to say you've been acquitted*, but the Probation Act maybe applied leaving one with no criminal record. A substantial donation to the poor box may be required. How often this happens I have no idea.

*open to correction of course.

My first post above details a possession with intent charge struck out.

Misuse of Drugs Act, specifically section 15(a), mandates that anyone caught with £10,000 (€13,000) worth of drugs should receive a 10-year mandatory minimum sentence.

He was very very very lucky the drugs were valued at €10,000 rather than €13,000, given that he actually paid €4,000 for them. You can draw your own conclusions as regards what a lucky coincidence this was. Then you can google his surname and come to some other conclusions if you wish.

Peregrinus

The Probation Act is applied numerous times every day in the District Court for a wide variety of offences. It's particularly common where an offender is aged 25 or under, and this is a first offence with no prior form.

tdf7187

If 100 bankers decide to do something, then it is legal.

pioneerpro

Peregrinus wrote: »

The Probation Act is applied numerous times every day in the District Court for a wide variety of offences. It's particularly common where an offender is aged 25 or under, and this is a first offence with no prior form.

Op asked for no charge and no record.

Probation act charges come into play in a wide variety of contexts, such as Visa applications and, in many cases, when being assessed to work in contexts involving Children or Vulnerable adults.

Peregrinus

pioneerpro wrote: »

Op asked for no charge and no record.

Probation act charges come into play in a wide variety of contexts, such as Visa applications and, in many cases, when being assessed to work in contexts involving Children or Vulnerable adults.

Well, in those terms the case mentioned is not a case in which there is "no record", because there will of course be a record of the application of the Probation Act.

What happened in that case is that the Probation Act was applied without a conviction being recorded. And that is a very common occurrence; not at all unusual.

pioneerpro

Peregrinus wrote: »

Well, in those terms the case mentioned is not a case in which there is "no record", because there will of course be a record of the application of the Probation Act.

Please read the actual article.

The judge said as a result of striking out the charge, there will be no record against Mr McInerney.

Peregrinus

I did read the actual article. But you shouldn't believe everything you read.

What the judge (or possibly the journalist who paraphrased the judge's words) means is that there will be no record of a conviction against Mr McInerney; Probation Act 1907 s. 1(1) allows the judge to apply the Probation Act without recording a conviction. This is a common - probably the most common - way of applying the Act. Section 1(2) provides the alternative of applying the Probation Act after an offender has been convicted, but this is much less common, and can't in any event be done by the District Court, where this case was heard.

The order that the Probation Act be applied is itself an order of the court, which must be recorded like any other order of the court. The judge has no power to order that there is to be no record of the application of the Act; it is very unlikely that the judge did order that and, if he did, the order would have no effect.

pioneerpro

Peregrinus wrote: »

I did read the actual article. But you shouldn't believe everything you read.

What the judge (or possibly the journalist who paraphrased the judge's words) means is that there will be no record of a conviction against Mr ....

Citation needed.

Peregrinus

I gave you a citation; Probation Act 1907 s. 1(1), which sets out a District Judge's power's with regard to the application of the Act. That explicitly allows the judge to make an order applying the Probation Act without recording a conviction; it doesn't allow him to make an order applying the Probation Act without recording the order.

pioneerpro

Peregrinus wrote: »

I gave you a citation; Probation Act 1907 s. 1(1), which sets out a District Judge's power's with regard to the application of the Act. That explicitly allows the judge to make an order applying the Probation Act without recording a conviction; it doesn't allow him to make an order applying the Probation Act without recording the order.

The charge was struck out. No act was applied, probation or otherwise

Claw Hammer

This happens a lot with first time offenders, not just those from well to do backgrounds.
Very few people see the inside of jail for a first offence.
Judges are reluctant to convict or imprison young people with prospects for a first offence. If someone is convicted or imprisoned it can have life changing consequences. many career opportunities are closed off. It may not be possible to travel to certain countries and setting up in business may be more difficult. If the person mends their ways they can be a positive force in society but if convicted can become an even more negative force in society.

pioneerpro

Claw Hammer wrote: »

This happens a lot with first time offenders, not just those from well to do backgrounds.
Very few people see the inside of jail for a first offence.
Judges are reluctant to convict or imprison young people with prospects for a first offence. If someone is convicted or imprisoned it can have life changing consequences. many career opportunities are closed off. It may not be possible to travel to certain countries and setting up in business may be more difficult. If the person mends their ways they can be a positive force in society but if convicted can become an even more negative force in society.

That's probation act though. You still have a record, and outside of Ireland it might as well be a straight-forward drugs conviction for Visa purposes.

For anyone with significant professional ambitions, this cuts them off at the knees in many industries. Garda Vetting, Corporate Hiring Policies, Security Clearances etc.... it is very much not the same thing as striking out a charge.

Claw Hammer

pioneerpro wrote: »

That's probation act though. You still have a record, and outside of Ireland it might as well be a straight-forward drugs conviction for Visa purposes.

For anyone with significant professional ambitions, this cuts them off at the knees in many industries. Garda Vetting, Corporate Hiring Policies, Security Clearances etc.... it is very much not the same thing as striking out a charge.

Strike outs and poor box happen quite often.

pioneerpro

Claw Hammer wrote: »

Strike outs and poor box happen quite often.

Agreed. Frequency and likelihood is down to Judge and context - as per the utterly ridiculous situation with the Kinsale 7s prosecutions which were quickly overturned on appeal.

Glad there's some other people here with an understanding of the realities of the system, unlike the other poster who seems to believe that papers are just making up their court reporting for some reason and feel they know better

Peregrinus

pioneerpro wrote: »

The charge was struck out. No act was applied, probation or otherwise

You haven't read the cite you asked for, have you?

The charge was dismissed under s. 1 of the Probation Act. We know this because the defendant was ordered to make a contribution to the Court Discretionary Fund. If he had simply been acquitted for want of evidence, or whatever, the court couldn't have done this. The CDF contribution is possible only under s. 1, where the court thinks the charge is proved but dismisses it anyway, because it thinks a dismissal expedient for the reasons listed in that section.

(And, either way, there would be a record. Even if the charge had been dismissed for want of evidence, there would be a record of that.)

Claw Hammer

Peregrinus wrote: »

You haven't read the cite you asked for, have you?

The charge was dismissed under s. 1 of the Probation Act. We know this because the defendant was ordered to make a contribution to the Court Discretionary Fund. If he had simply been acquitted for want of evidence, or whatever, the court couldn't have done this. The CDF contribution is possible only under s. 1, where the court thinks the charge is proved but dismisses it anyway, because it thinks a dismissal expedient for the reasons listed in that section.

(And, either way, there would be a record. Even if the charge had been dismissed for want of evidence, there would be a record of that.)

Not the case. The judge often asks for evidence of a donation and then strikes out the matter simpliciter.

pioneerpro

Peregrinus wrote: »

You haven't read the cite you asked for, have you?

You got called out, and now you're doubling down and extrapolating wildly based on faulty information.

You are 100% incorrect on your comments about this case.

pioneerpro

Claw Hammer wrote: »

Not the case. The judge often asks for evidence of a donation and then strikes out the matter simpliciter.

Much obliged; exactly the case here.