It was wrong to prosecute a 68 year old Dublin woman for growing cannabis
EARLY THIS WEEK, Evelyn Corrigan – a 68-year-old woman suffering from glaucoma and spinal stenosis – was found not guilty by a jury of possession of nearly 325 grams of cannabis for sale or delivery in 2017.
Ms. Corrigan, however, freely admitted – and was duly convicted – of possession of the drug for personal use. Ms. Corrigan had grown the cannabis herself outside of her home in Dublin. She told Gardaí and the jury at the Dublin Circuit Criminal Court that she grew the drug and used it to relieve the chronic pain caused by her illnesses.
When explaining what appeared to be a large amount of cannabis in their possession – at least to Gardaí and the DPP – Ms. Corrigan claimed that she did not expect the plants to grow that big. Judge Pauline Codd applied the Offenders Probation Act to Ms. Corrigan’s admission of simple possession, which meant she received no criminal conviction. This is to be welcomed, as society would have benefited little from a tougher sentence.
Wasting time in court?
While many aspects of this case could be criticized – not least the ongoing criminalization of cannabis use for medical purposes – we would here like to challenge the decision by Gardaí and the DPP to prosecute and prosecute Ms. Corrigan. First we shall ask whether you should have been charged with the specific offense of possession for the purpose of sale or delivery: the offense of “trafficking”. Second, we will ask what public interest was served in the decision to prosecute her case.
In the interests of full disclosure, one of us – Dr. Cian Ó Concubar – admitted the cultivation of cannabis for sale or delivery in 2010 and was condemned Gardaí and the DPP in the case of Ms. Corrigan: in particular, the understanding and reaction of these agencies to cannabis cultivation and use.
On our first point, should Ms. Corrigan have been charged and prosecuted for trafficking in the cannabis she grows? If we find the jury’s decision not guilty, the answer is certainly no. However, failure of a conviction in itself is not a solid basis for criticizing a prosecution decision. The DPP believed that Ms. Corrigan could be convicted of trafficking based on the amount of cannabis found in her possession.
It is this assumption that justifies the criticism. The court heard no evidence to suggest that Ms. Corrigan was actually selling or giving away her cannabis to others: Gardaí did not find or look into any such evidence. Based on Ms. Corrigan’s DPP cross-examination, it appears that the only basis for a charge of sale or supply is the amount of cannabis she had in her possession.
Ordinarily, when serious crimes are tried, Irish courts – and Ms. Corrigan could face up to 14 years imprisonment – would not allow jury charges if the state did not produce evidence. Then why was the very grave charge of trafficking brought before the jury?
The answer lies in how the law is structured to favor prosecution in these cases. Under s15 of the Misuse of Drugs Act 1977, a jury may presume that you are involved in a sale or delivery if you are caught with a lot of drugs that are considered too much for personal use. In other words, s15 allows a jury to convict someone of drug trafficking even if the state does not produce direct evidence to back the charges. Because of this, Ms. Corrigan could be prosecuted for the trade offense.
But is 325 grams of cannabis too much for personal use? By growing the cannabis plants outdoors, using a more environmentally friendly approach to growing than energy-intensive indoor growing, and a more socially responsible approach than buying on the black market, Ms. Corrigan tended to cultivate larger plants, which predictably resulted in a larger harvest. Growing outdoors, however, limits the average grower to a single harvest per year.
Accountability of Agencies
So was Mrs. Corrigan’s harvest a large amount for personal use in a year? At less than a gram per day, this is a modest amount for someone who uses cannabis to treat chronic pain.
Then, since Gardaí and the DPP are regarded as experts in these matters, why have they been charged with trafficking? It’s difficult to say. Maybe it’s because Gardaí and the DPP really don’t understand cannabis cultivation: a question of competence.
Alternatively, it reflects a desire to bring the most serious charges imaginable in a particular case. The policies behind crime statistics can provide a strong incentive for law enforcement agencies to increase the severity of the crimes they allegedly uncovered. Both explanations could shed light on their tendency to overestimate cannabis plants and other drugs, which often raises the eyebrows of researchers and users.
While the Oireachtas were relatively enthusiastic about the DPP’s demand that victims of serious crimes be given discretion, there is little interest among lawmakers in asking our prosecutor to be transparent about their decision-making.
The failure of an exceptionally powerful government agency to explain how it wields its power raises numerous concerns, not least whether that power will be used fairly and for the benefit of society.
Under the Drug Abuse Act, the law leaves a wide margin of discretion in prosecuting without evidence for trafficking. This enables the DPP to routinely (and perhaps cynically) initiate very serious criminal proceedings – a particularly traumatic experience for Ms. Corrigan – on the mere basis that they consider the value of a seizure to be high.
Second, the decision to charge Ms. Corrigan with possession, which must have been in the public interest, can be questioned as drug regulation policies and practices change rapidly around the world. The research clearly shows the medicinal value of cannabis, and Ireland launched a five-year pilot project in 2019 to provide access to cannabis for medicinal purposes.
However, this program is limited to a narrower range of health topics and products than comparable programs in other European countries and there is little evidence to suggest that the program is easily accessible by those within its remit. The fact that the tide is turning in favor of these patients should, however, weigh heavily on the prosecutor’s decisions.
Lack of common sense
The recent case of Paul Lee, a former heroin addict charged with $ 4 of cannabis allegedly used to treat chronic pain without opiates, shows the cruelty and futility of criminalization. How the public interest was served in the case of Mr. Lee awaiting conviction is unclear.
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However, even the recent change in the adult precautionary system to allow his expansion to include cannabis possession would not have helped Mr. Lee based on his previous convictions. If Ms Corrigan’s case had started recently, she might have benefited from this development.
However, the DPP could have chosen not to bring charges by exercising its discretion when deciding, for example, whether it is in the public interest to prosecute an elderly disabled woman for self-medication.
Aside from the prejudices against the introduction of certain substances for medicinal purposes, Irish drug laws are no longer fit for purpose. Criminal law and penalties are not effective methods of reducing the harm caused by drug use. In this context, Ireland’s medical cannabis pilot and expanding adult precautionary measures are positive, albeit small, steps towards the inevitable decriminalization of drug possession.
In the meantime, Gardaí and the DPP must recognize that law enforcement can exacerbate the harm caused by drugs and use their wide discretion in the public interest.
Dr. Cian Ó Concubhair is Assistant Professor of Criminal Justice in the Department of Law at Maynooth University. Dr. Ian D. Marder is an Assistant Professor of Criminology in the Department of Law at Maynooth University.