3 Strikes and You're Out
The Collins Dictionary states that the "3 strikes and your out" metaphor is "said to mean that a country or an organization has a policy or law, according to which people who commit three offences are punished very severely, even if the individual offences are not very serious."
When asked over the last number of weeks about the Adult Caution Scheme, the one thought that was repetitive was 3 strikes, if you're lucky. Most people are either unaware of the existence of the scheme or unsure of how it applies to the personal possession of cannabis. So what is it, how does it work and most importantly does it work?
What is the Adult Caution Scheme?
The Adult Cautioning Scheme was first launched in 2006 and originally applied to certain criminal acts such as being intoxicated in a public place, disorderly conduct, and minor assaults. In 2020 there was a change in Ireland’s drug policy when this scheme was extended for the first time to include simple cannabis possession for personal use. In the 15 years of operation, it was the first time a drug offence was included in the scheme. This small step forward in Ireland’s drug policy was widely welcomed and people hoped this would reduce the number of criminal convictions imposed for personal possession of cannabis. Although it has now been in operation for two years, many people are still confused about the scheme.
In February 2006 the scheme was first introduced as an alternative to prosecuting adults for certain criminal offences in the District Court. The scheme is available when there is evidence that the person has committed the offence and where prosecution of such an offence is not in the public interest. A benefit of the scheme is that no criminal conviction will be recorded. Therefore, an adult Caution does not appear on Garda Vetting Reports and will not have a detrimental impact on a person’s future such as in employment, housing and visa applications. Although it will not appear in vetting applications an Adult Caution will be made known to the Court in the event of any subsequent conviction for a criminal offence. It is important to note from the outset that the Adult Caution Scheme is discretionary and there is no guarantee that it will be applied to every person caught to cannabis for personal use.
How does the scheme work?
If you are suspected of having cannabis for personal use, the decision to administer a caution instead of prosecution will be made by the local Garda Superintendent. When deciding whether to issue a caution or not the Gardaí must consider a number of factors, one specifically in relation to cannabis:
The alleged behaviour.
The surrounding circumstances.
Evidence of your guilt.
A person’s understanding of what a caution is and its significance.
The Public Interest
The views of the victim (if any)
Consideration must be given to the type, quantity, and value of cannabis and whether the offence disclosed is one of personal possession.
The most important aspect of the scheme is that an individual must:
Admit to the offence
Must give informed consent to be cautioned.
The scheme must be applied in a uniform way across the different jurisdictions in Ireland. Therefore, the scheme should be considered in every case. Where an individual has previous criminal convictions or has been dealt with under the Juvenile Diversion Programme should not in itself mean a caution is inappropriate. Administration of an adult caution will take place at a Garda Station. A person will be required to acknowledge in writing that they accept the caution.
How many cautions can a person receive?
The idea of caution is that it is only to be used once, but in the most exceptional circumstances, it may be applied a second time. Such circumstances include where the subsequent offence is very minor, or where there has been a long gap in time since the first caution and the Superintendent believes a second caution would benefit the person. If a second caution is to be issued to an individual the Superintendent must get permission from the Director of Public Prosecutions (DPP). Upon a third offence, there is no option except criminal prosecution. A “three strike you are out” approach, has not proven effective in other jurisdictions.
If it is decided to issue a caution, the member in charge of the Garda station sets up a convenient time and location for the Superintendent to issue the caution. A copy of the finished Adult Caution Referral Form is given to the offender once the caution has been delivered.
The entire process, which lasts as little time as possible—days rather than months—from the moment the offence is discovered until the caution is fully administered.
Is the scheme successful?
The scheme has contributed to a reduction in the number of people criminally prosecuted for personal possession of cannabis. In 2021 figures released show that 1,600 adults were given a caution by the gardaí for possession of cannabis for their own use in the first year of a landmark scheme. Garda figures for 2021 show there was a corresponding 12% reduction in the arrest of adults for possessing cannabis for their own personal use. Overall figures for 2021 for personal possession of all drugs dropped from roughly 15,000 to 12,000 down 13%.
Although I welcome any move away from criminalising personal possession of cannabis, the Adult Caution Scheme is not without issues. Due to the discretionary nature of the scheme, it is undoubtedly not equally applied across demographics in society. With certain areas of communities across Ireland over-policed, it is a logical conclusion that more crime will be detected in these areas. Another concern of mine is that without a proper legislative basis for the scheme it will fail to be implemented correctly and standards may differ across stations and counties.
In a review of the Scheme, the Policing Authority noted there were considerable variances in processes used to administer Adult Cautions at a local level. This was largely attributed to a lack of guidelines issued at the national level and a lack of training. Instead, local custom and practice was relied upon. The review found that no formal training has been provided to members to operate the scheme. There is also a lack of guidance as to when to issue an Adult Caution rather than FCPN and a lack of clarity as to when Adult Cautions should be issued. There were also incidents found whereby second Adult Cautions were issued without seeking DPP direction or where no paperwork containing direction from the DPP could be found. One question which arose in relation to the Adult Cautioning Scheme during the course of the review was whether, in some circumstances, Gardaí might be choosing to prosecute certain offenders who might otherwise have been eligible for receiving an Adult Caution and where the conditions of the scheme had been met. Whilst the Review had no evidence to suggest that this might be happening, they were conscious that the lack of definition and precision in the scheme could create circumstances in which some offenders, who might otherwise receive an Adult Caution, instead could find themselves facing prosecution.
In many instances, the Adult Caution referral forms which we reviewed in various Garda stations were illegible, with many top copies seemingly completed in pencil or very light ink, and the second and third copies (carbon sheets) containing no legible data whatsoever. In most divisions, many or all of the third copy “green sheets” that should be given to the individual when the caution is administered remained in the book This demonstrates a lack of professionalism and proper oversight, and also calls into question the admissibility of such material should it ever be required in court proceedings, for example.
This review was carried out before the addition of cannabis to the scheme. On the topic of cannabis, the Authority recommended the scheme be expanded to include personal possession of cannabis. It noted there were significant differences of opinion between Garda members, with many feeling very strongly that all drugs-related offences should go straight to prosecution, given the pernicious effect of the supply of illegal drugs across Irish society. Many other Garda members took what might be considered as a more “pragmatic” view, that a first-time offender being detected for possession of a small amount of cannabis for personal use should be given the chance to change their behaviour through the use of an Adult Caution.
They concluded the report by recommending the Adult Cautioning Scheme should be uniform and consistently applied across the Garda Síochána, supported by clear policies and operational procedures set out in HQ Directives, underpinned by effective training, and properly overseen and managed. They believed that significant reform is required within the Adult Cautioning Scheme, partly in respect of its operational functioning, but more substantially in respect of its oversight and governance, in order to enhance its effectiveness and efficiency.
I asked several people who have received an Adult Caution for cannabis possession how their experience was. Most described the interaction with the Garda as negative. When asked how long it took between initial interaction and receiving the official Adult Caution the answers covered all possibilities, from 2 hours to 3 months. Many people asked felt the scheme was clearly explained to them. Given the concerns of the Policing authority regarding governance and proper procedure, it is not surprising that the majority of people were not given the correct paperwork. Describing their experience, a person stated they felt like they were a criminal and often people felt stigmatised.
Although any move away from criminalisation, the use of the Adult Caution Scheme is not a fix-all solution, it is a complex system that requires the involvement of not only the Gardai but also the superintendent, referral forms and meetings that take place in a criminal setting, i.e. the Garda Station. This scheme is limited in its accessibility as generally you can only be considered if you have no previous convictions. Although a previous conviction does not exclude an individual from this scheme, it is targeted at those unlikely to re-offend. To avail of this scheme, an individual must admit guilt. This admission of guilt may be brought up at sentencing for any future convictions, showing a caution can follow someone for life in the same manner a criminal conviction can.
The government acknowledges that drug use is a health issue and one that does not need to be addressed by the criminal justice system, thats until you have been caught a second or third time in possession. This 3-strike element will only additional societal stigma to people who consume cannabis. An Adult Caution makes it clear that people who consume cannabis are worthy of forgiveness but only if they manage to keep themselves hidden away from detection. If they do manage to achieve this, society will extend an olive branch, but onlyomce, twice if you lucky, before reverting to the criminal justice approach. I am firmly of the belief that any contact with the criminal justice system for personal possession is not a “Health-Led” approach to any form of drug use. Our laws date from 1977, and in some ways, our approach to them has remained the same. We as a society need, to take off the blindfold and have a frank and honest conversation on our current approach to cannabis in Ireland and the damage caused by criminalising it.
“Insanity is doing the same thing over and over again and expecting a different result. “