The Malta Independent 18 August 2018, Saturday

Drug laws: Reforming reforms - Franco Debono explains

Sunday, 14 February 2016, 08:30 Last update: about 4 years ago

Has the government’s reform of the drug laws gone wrong? In some ways it certainly has Franco Debono, wearing his criminal lawyer hat, says. A leading example of where it has gone wrong, Dr Debono argues, is that a person cultivating a two-metre cannabis plant would benefit from recent amendments and receive a mere small fine, while another person caught cultivating two two-centimetre plants would be liable to the mandatory minimum six-month jail term. Here he explains

·       One of the points of my Private Members’ Motion about Major Reforms in Justice and Home Affairs (2011), which was later taken on board by the Bonello Report (2013), with some differences, was about a reform of the drug laws, the setting up of a drug court, the introduction of a mechanism of review of the Attorney General’s then unfettered discretion in drug cases and an amendment to the law automatically equating cultivation with trafficking. These are issues I had been tackling everyday in my profession as criminal trial lawyer;

·       Before the recent amendments, the law equated cultivation with trafficking and the implication was that cultivation carried a mandatory minimum six-month jail term, even where such cultivation was of small amounts for personal use, and this was clearly not only out of tune with the rest of the law but also unjust;

·       One of the basic concepts if not the very backbone of the law is precisely the distinction between offences of simple possession for exclusive personal use on the one hand, carrying mild and minimal punishments such as conditional discharge or a small fine; on the other hand, possession for the purpose of trafficking carries a minimum six-month jail term up to life imprisonment in cases of jury. In the case of cultivation of cannabis, the law made no such distinction however. Cultivation automatically fell under the definition of ‘dealing’, without any distinction as to amounts or intentions.

·       Thus, I had proposed way back in 2011 a very simple amendment which would bring cultivation in line and in tune with the rest of the law, in the sense that the law would distinguish between cultivation for exclusive personal use and cultivation for trafficking and punishment meted out according to the general concepts of the law

·       However, the new law introduced an amendment in the sense that it is only the cultivation of one plant that would be excluded from the definition of trafficking and thus would not entail a mandatory minimum six-month mandatory jail term. What does this mean?

·       First of all ‘one plant’ is not a definite amount like ‘one gram’ or ‘one pill’, so practically the law makes no distinction between a two-metre plant and a two-centimetre plant.  

·       Moreover this amendment could give rise to unjust situations. Someone cultivating a two-metre plant would benefit from recent amendment and get a small fine, while someone caught cultivating two two-centimetre plants would be liable to the mandatory minimum six-month jail term. And clearly this could give rise to anomalous situations.

·       Moreover, the criterion of ‘one plant’ is highly arbitrary. The law as amended would mean that someone caught with a large plant could get a fine (if the court is satisfied the amount is small for personal use), whilst someone caught with, for example, half the amount, but distributed over two plants or more, he would have to face a mandatory six-month jail term even if there is evidence that cultivation was for exclusive personal use;

·       What could be done? The law could be amended to the effect that the applicable criterion and distinction should be whether cultivation is for exclusive use or else for trafficking, thus bringing this disposition in line with the rest of the law and avoiding creating anomalous situations arising out of the arbitrary ‘one plant’ rule introduced by the recent amendments.

·       In fact, there existed a similar anomaly regarding importation up to a few years ago and when I was making these proposals in Parliament in 2011, I had explained how this anomaly had hit the news about 10 years earlier, when a Swiss student, Gisela Feuz, was caught importing a very small amount of illegal substance for exclusive personal use, yet the law imposed a minimum six-month jail term since it was a case of importation, and the law made no distinction, and she was effectively condemned, which created an uproar; the law was amended and the situation rectified in the sense that only importation in such circumstances that the Court is satisfied that such importation was not for the exclusive use of the offender” would thereafter fall within the purview of the definition of dealing and hence carry the mandatory six-month jail term.

·       The same amendment should simply apply also to cultivation, without creating the ‘one plant’ criterion possibly giving rise to the anomalous situations explained above. Thus only “cultivation in such circumstances that the Court is satisfied that such cultivation was not for the exclusive use of the offender” would qualify as, and fall within the purview of the definition of “dealing” and thus carry the mandatory minimum six-month jail term, while cultivation for exclusive personal use would be excluded and the punishment applicable to simple possession for exclusive personal use would apply.

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