Report on Mandatory Sentences - Law Reform Commission

would probably have resulted in the imposition of a 10-year sentence. Section 27 had thus saved court
time and public funds, freed up Gardaí and resulted in a higher rate of conviction. He noted, however,
that there was now a “positive disincentive” to test the prosecution case:
“In a criminal trial anything can go wrong; difficulties can arise with warrants, witnesses may be
unavailable for a variety of reasons, there can be a flaw in the chain of evidence, technical errors
may be made and so forth. However the consequences of unsuccessfully testing the prosecution
case in a s.15A charge are so severe, it would seem that one of the practical effects of the
section has been to discourage the vast majority of accused persons from proceeding to trial
unless the case against them appears to be obviously flawed.” 60
4.36 This view was confirmed in the course of the Commission’s consultation process with
interested parties, following the publication of the Consultation Paper.
(ii)
Material Assistance
4.37 Section 27(3D)(b)(ii) 61 of the Misuse of Drugs Act 1977, as amended, provides that material
assistance may also be considered an exceptional and specific circumstance for the purpose of
determining whether the statutory minimum sentence should apply. Material assistance may take many
forms. In The People (DPP) v Davis, 62 Denham J observed that:
“The most basic [form of material assistance] is to admit the offence. Secondly, an admission
may be made together with showing the Gardaí drugs, etc, relating to the specific offence in
issue. Thirdly, there is a much more significant material assistance where an accused assists the
Gardaí in relation to other offences and criminality. This latter is a matter of great public interest,
and has been given significant weight in other cases.”
Therefore, an admission or the provision of information regarding the particular offence or other offences
may be considered material assistance.
4.38 The Court of Criminal Appeal has cautioned against treating an admission without more as
material assistance. 63 In general, therefore, an admission must relate to more than just the accused’s
own involvement in the offence. 64 It must, for instance, facilitate the investigation or prosecution of the
offence by revealing the full extent of the accused’s involvement or the identity of any others involved. 65
The Court has indicated that it will have particular regard to situations in which the accused has made an
admission where, by doing so, he or she has exposed himself or herself to a risk of death or serious
60
61
62
63
64
65
McEvoy Research for the Department of Justice on the Criteria applied by the Courts in sentencing under
s.15A of the Misuse of Drugs Act 1977 (as amended) (Department of Justice, 2001) at 11.
Formerly, section 27(3C)(b).
The People (DPP) v Davis [2008] IECCA 58.
The People (DPP) v Coles [2009] IECCA 144.
Ibid; and The People (DPP) v Dermody [2007] 2 IR 622.
The People (DPP) v Sweeney Court of Criminal Appeal 12 March 2009; The People (DPP) v Purcell [2010]
IECCA 55; and The People (DPP) v Brodigan [2008] IECCA 127. See also: The People (DPP) v Duffy Court
of Criminal Appeal 21 December 2001 in which the accused expressed a desire to plead guilty to a charge on
which he had yet to be returned; The People (DPP) v Malric [2011] IECCA 99 in which the applicant named
persons who had previously travelled to Europe transporting drugs and the Court of Criminal Appeal
considered that her information would be of value to European authorities and could lead to the apprehension
of such persons in the future; and The People (DPP) v Cleary and Brown [2012] IECCA 32 in which the Court
of Criminal Appeal deemed it important that the Gardaí had taken the “unusual” step of furnishing and placing
on the court file, a letter recording that each of the applicants had afforded material assistance.
136