Dozens of pending prosecutions for possession of certain drugs are up in the air after a landmark court judgment ruled a key drug law was unconstitutional.
Garda bosses were yesterday informing officers that more than 100 substances — including ecstasy, certain amphetamines and an array of former head shop drugs — would be legal to possess until the close of today.
The Government last night began processing emergency legislation, rectifying the law, through the Oireachtas which should be signed into law later today.
The Coalition said they were advised “existing convictions are safe” in relation to possession of the relevant drugs, but said the ruling could affect pending cases.
Health Minister Leo Varadkar indicated there were “dozens” of such cases, but said it would be a matter for the DPP to determine if they could proceed or not.
He stressed many drugs, such as cannabis, cocaine, LSD and heroin, were still illegal to possess, and said the sale and supply of all drugs, including those temporarily legal to possess, continued to be illegal, due to the 2010 Psychoactive Substances Act.
In what it said was a “constitutional issue of far-reaching importance”, the Court of Appeal ruled that Section 2(2) of the Misuse of Drugs Act 1977, which gives Government the power to ban drugs, was repugnant to the Constitution, as the law did not outline the basis for such decisions.
The court was hearing an appeal taken by Lithuanian-born Stanislav Bederev against a High Court ruling which said there were sufficient principles and policies in the act to guide and constrain the Government.
Section 2(2) empowers the Government to declare, by regulation, certain substances illegal on the basis they are dangerous or harmful. Mr Justice Gerard Hogan said there was “nothing” in the act which provides the necessary principles and policies for determining which substances are dangerous or harmful.
He said that under the section, it was open to the Government to ban alcohol and tobacco: “On any view, both drugs are harmful and are liable to be misused”.
Mr Justice Hogan said the Government was “more or less at large” in determining which substances should be declared controlled drugs, pointing out that there was “almost no guidance” on the matter in the 1977 act.
A Garda source said last night: “There are not many current prosecutions for headshop drugs. The ruling is something we could do without, but I don’t see a huge number of cases affected.”
Introducing the emergency legislation last night, Mr Varadkar said the availability of information on the chemistry of substances, coupled with sophisticated technology and chemistry expertise, had overall contributed to the rapid evolution of illicit drugs. “The mechanism under which new substances can be controlled in the future will require consideration on foot of today’s court of appeal decision,” he told the Dáil.
Fianna Fáil’s Billy Kelleher said there was a need to discuss how to treat widespread drug addiction.
The emergency legislation will go before the Seanad and the President today and then is expected to be signed into law.
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