'It can make a massive difference to cases': Legal experts question garda cannabis plant valuation
Michelle Hennessy - The Journal.ie
Gardaí apply a general valuation of €800 to each plant – experts claims this is at odds with international best practice.
LAST YEAR, ACCORDING to garda figures, illicit drugs worth almost €75.6 million were seized in Ireland.
This included more than 9,000 cannabis plants, valued at €7.2 million in total – around €800 per plant. Legal experts have expressed concern about the way in which gardaí are estimating the value of drugs after seizures and how this can impact on sentencing for offenders.
Speaking to TheJournal.ie, criminal lawyer Phelim O’Neill said the €800 value is often applied “irrespective of the quality or stage of development of each plant”.
“This is totally at odds with international best practice,” he explained.
In one cannabis case we engaged an expert scientist to assess the process by which the drugs had been valued. Our expert described the process as a ‘mathematical fiction’.
He said valuation of weight can be problematic as he has seen cases where the weight of cannabis twig particles has not been discounted.
“The economic reality is that, in every market, wholesale prices are much lower than retail. If one gram sells for €20, a wholesale delivery of 100 grams will obviously sell for much less than €2,000.
There is just no reality to applying a ‘street value’ to large seizures, but it makes for good headlines.
When gardaí release information to the media about large drug seizures, they include an estimated value, or estimated street value, pending analysis.
For example, in August this year, garda issued a press release after the seizure of 140 cannabis plants in Co Kerry.
In it they stated that the plants, pending analysis, were worth €112,000, or €800 per plant.
In May, following the discovery of a grow house in Marino in Dublin, gardaí said they had found 137 plants with an “estimated value of €110,000 (analysis pending) – that’s €803 per plant.
Some of the plants seized in Marino earlier this year. Source: Garda Press Office
Cian Ó Concubhair, now a law lecturer at Oxford University, was convicted and received a five-year suspended sentence for operating a cannabis grow house at his home in Co Galway in 2011.
He told TheJournal.ie that in his own case, gardaí had valued the plants at over €100,000. The seizure included 85 cannabis plants and 72 saplings.
He pleaded guilty and in mitigation his solicitor managed to get the valuation down to €30,000. Ó Concubhair believes the sentencing decision in his case could have been different if the original valuation was used.
“From the perspective of the court, the value or the amount of drugs you’re caught with is the harm you would have been causing to society.”
In his research as a law lecturer, Ó Concubhair said he has not seen drug valuations being used so prominently elsewhere as part of crime data.
“In England, it’s usually detection rates, not necessarily the size of the haul.”
Source: Garda Press
He attributed some of the high figures to an attempt by An Garda Síochána to “build up its legitimacy in the eyes of the public”.
“If it’s a massive haul, they appear to be significantly disrupting crime, saying they have deprived organised criminals in terms of income and so on,” he said.
When it comes to valuations of cannabis plants, he said that as a former grower he would have estimated the value of a plant using a very different method than the flat €800 applied by gardaí.
“For indoor plants, where you have a bit of control and predictability, usually you’re aiming to get a gram per watt of light used in the flowering chamber. You’d have 18 hours of light in the initial stages and then a 12 hour flowering cycle, you might use a slightly different light for that. But it’s not difficult to work out, that’s how people operate it.”
Ó Concubhair said that in cases where the initial valuations are in the hundreds of thousands, or even the millions, the disparity will not make much of a difference when they come before the courts. However for smaller scale dealers, it could be life-changing.
Over the threshold
Solicitor Phelim O’Neill explained that suspects caught with more than €13,000 worth of drugs can face a presumptive minimum prison sentence of 10 years, although lesser sentences are more common.
“Proving that your client fell below that €13,000 threshold can make the difference between a lengthy prison sentence and a non-custodial sanction.
It is vitally important that anyone arrested for drugs offences gets good legal advice as early as possible. Often valuations are put to people who have been arrested when they are interviewed by gardaí and specialist legal advice at that stage can make a massive difference to the ultimate outcome in their case.
Source: Garda Press
Ciaran Mulholland, who is also a criminal lawyer, described the current Misuse of Drugs Acts as “archaic and ineffective in tackling the drug problem”.
“I feel that the present ad hoc methods of the authorities quantifying drugs lacks impartiality and facilitates the over-use of the draconian provisions of Section 15 and Section 15A of the Misuse of Drugs Act, which carry mandatory five and ten year sentences respectively,” he said.
The fact that there is no adequate scale or detailed equation in law which can independently determine the ‘street value’ of drugs demonstrates the serious issues with the present system. The status quo rightfully attracts criticism because it is often inaccurate and inconsistent.
He said the “punitive approach” to what is ultimately a societal problem requires radical reform.
“I have no doubt that the lengthy custodial sentences imposed for drug related offences, which are costly to the public purse, rarely rehabilitates those vulnerable persons or deals with the underlying problem; socio-economic deprivation in which the drugs are merely a symptom of the problem,” Mulholland added.
Typical street deals
In response to a number of questions from TheJournal.ie in relation to drug valuations, the garda press office said they are based on the market value that various drugs sell at retail or street level.
“These market values are arrived at after the consideration of a wide variety of intelligence sources in line with best international practice. The values that are provided to courts by members of An Garda Síochána illustrate the potential value that any particular quantity of a drug when it is sold in typical street deals,” they said.
They acknowledged that wholesale prices of drugs are “naturally much different” than retail market values.
For example, a gram of cocaine that will sell at retail level for €70 does not necessarily mean every kilogram of cocaine that is seized has a market value of €70,000. Purity is relevant and, when available, this information is also provided to the courts in establishing an accurate potential value of the drug seized.
“With any controlled drug the larger the amount that is transacted the cheaper the unit price becomes in terms of more significant dealing or indeed wholesale transactions. This is recognised and therefore is also demonstrated to judiciary when expert valuation evidence is adduced in criminal trials.”
When it comes to cannabis plants, An Garda Síochána said its valuation is “based on scientific research in relation to the average dry yield from the flowering tops of female plants”.
“Then the market value, in actual or potential terms, can be outlined to the courts bearing in mind the current retail price of a gram of cannabis herb on the illicit drug market in its lowest denominational street deal.”
The press office said the market values of drugs generally are continuously under review and are subject to change depending on a number of factors including demand and supply, purity, potency and prevalence.