Dried cactus extract containing mescaline not covered by drugs legislation, court told

A man is appealing his conviction on drug charges, his defence being that the plant extract he was in possession of isn't covered by drugs legislation.

There is “vast uncertainty” as to whether the dried extract from certain types of cacti plants that contain mescaline could be regarded as a controlled substance under current legislation, a court was told on Thursday.

The State had claimed the powder Alexander Rojas Rey, aged 44, was caught with had contained mescaline and he was charged with two drugs offences.

Rey, of River Towers, Lee Road, Cork city, later pleaded not guilty to being in possession of mescaline for sale or supply, contrary to section 15 of the Misuse of Drugs Act 1977, and to possessing the same drug, contrary to section 3 of the same act, at his home on January 23, 2018.

He was found guilty after a trial, however, and in November 2019 at Cork Circuit Criminal Court was given a community service order of 100 hours in lieu of 12 months’ imprisonment.

Rey is appealing the conviction on the grounds that the trial judge, Judge James McCourt, erred in principle by “refusing to determine as a matter of law whether the substance the defendant was in possession of was a controlled drug as defined by the Misuse of Drugs Act”.

It is further claimed in submissions that Judge McCourt erred in “allowing the jury to decide on a question of law as to whether the substance the appellant was in possession of” was prohibited under the act.

Peter O’Flynn, defending, told the Court of Appeal it was uncertain whether the powder his client had “comes within the ambit of the schedule” of current drugs legislation.

“There is a vast uncertainty,” Mr O’Flynn noted.

He said the substance his client had was “a dried plant, no more”.

Mr O’Flynn also told the court there were several types of cacti plant which contained mescaline and from which the prohibited drug could be extracted.

“This plant is not controlled by the [Misuse of Drugs] Act,” he said.

Counsel conceded, however, that the dried extract from some cacti could be added to water and then boiled before being consumed.

“There is a mild effect from it,” he said.

Dermot Sheehan, prosecuting, said the case involved a chemical called mescaline which has chemical formula.

“Mescaline is specified in the schedule and the evidence is the powder contained mescaline,” he said.

“The legislature, very wisely, has not sought to prohibit cacti,” Mr Sheehan continued.

“They have sought to prohibit mescaline.

“What we are dealing with here is dried plant material that clearly represents a product that contains mescaline.” 

 “The trial judge was quite clear: mescaline is a controlled substance,” Mr Sheehan added.

Judgment has been reserved.

Trial evidence

During his trial, Rey’s lawyers claimed the powdered plant derivative found at his flat could be extracted from a cactus plant available in flower shops in Ireland.

To prove the point, Mr O’Flynn showed the jury a cactus that the defence purchased in a nearby shop for €35.

The State’s expert witness, counsel said, had agreed that the plant had contained mescaline.

Mr O’Flynn said the State could simply add any cactus containing mescaline to the list of prohibited substances.