Ruling on drugs set to affect hundreds of cases
The Court of Appeal ruled that a variety of drugs, such as ecstasy and new synthetic drugs, were not illegal as the mechanism used to declare them controlled substances was unconstitutional.
The passing of emergency legislation in the Oireachtas yesterday moved to rectify this, but legal experts pointed out that new laws cannot be applied retrospectively to cases of drugs supply currently going through the criminal justice system.
Senior sources have said the DPP has told gardaí that files submitted to it regarding the sale of these particular substances will be dropped and cases in the courts will be withdrawn.
In addition, Garda HQ has issued a directive to districts and units saying that investigations and the preparation of files involving these drugs are to cease.
“It’s not clear the total quantity of cases affected, but when you include current investigation files and files already gone to the DPP, you are talking hundreds, no doubt,” said one source.
Health Minister Leo Varadkar estimated on Tuesday that the number of cases pending was “dozens”, although he added he couldn’t say for certain.
It is thought that cases currently in the system include some major seizures, including €1m hauls of ecstasy, synthetic drugs and sleeping tablets, and that significant dealers could escape prosecution.
Yesterday, in the Dublin Circuit Criminal Court, the prosecution withdrew two charges of unlawful possession of a small quantity of ecstasy in the case of Phillip Farrell of Cushlawn Park, Tallaght. Farrell faces sentences in relation to heroin and cannabis.
While there was some confusion on Tuesday at the impact of the ruling on pending cases of drugs supply, legal and Garda experts said the reality was clear.
“It’s fairly black and white,” one Garda source said. “Any cases pending before the courts or have gone to the DPP and not reached finality involving these drugs — be it possession or possession with intent to supply — have been withdrawn or will be.”
Barrister Garnet Orange said because drugs added by regulation to the schedule of controlled drugs in the 1977 Misuse of Drugs Act were not illegal, it was “not unlawful” to sell or supply them. “In other words, a man facing a charge of possession of ecstasy with intent to supply on [for example] the January 1, 2015, must have the charges struck out because the drug MDMA was outlawed by order in 1987 and that order has now been found to be invalid.”
UCC legal academic Conor O’Mahony agreed: “Anyone who committed an offence prior to the enactment of the emergency legislation replacing the law struck down, but who has not yet been convicted, cannot now be prosecuted for that offence”.
They both said the new law cannot be applied retrospectively in these cases.
They said people already convicted will not benefit unless they raised the legality of the law during the trial, which is highly unlikely.
Mr Orange did say anyone who has pleaded guilty, but not yet sentenced, “may get some comfort”.
It is understood gardaí have asked the DPP to consider re-charging those people whose case is set to be dropped under Section 3 of the Psychoactive Substances Act 2010.
It is thought the DPP is considering this, although it could face a lengthy legal challenge if it did.
The DPP yesterday refused to comment on the ruling.
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