Drugs Ruling: Clarifying position on headshop substances

A High Court ruling yesterday affects a narrow range of substances declared to be controlled drugs, writes Conor O’Mahony

A rash of headshops opened in Ireland a few years ago, seeking to exploit drug legislation loopholes,but were, by and large, shut within months.

What is the background to yesterday’s High Court ruling

Stanislav Bederev was charged in April 2012 at Blanchardstown District Court with possession and intention to sell methylethcathinone. Prior to 2011, this was a legally available recreational drug usually sold in headshops. In 2011, regulations were passed by the Government under section 2(2) of the Misuse of Drugs Act 1977 that added methylethcathinone and several other substances to the list of controlled substances under the act. Mr Bederev challenged his prosecution on the basis that section 2(2) was unconstitutional. He lost in the High Court last May, but successfully appealed to the Court of Appeal.

Why was the headshop regulation introduced in 2011?

The 2011 regulation was a response to growing concern around the potential health implications of certain substances, commonly referred to as “legal highs”, that were available for purchase from headshops. A significant volume of media coverage was devoted to the topic, and links were drawn with a number of serious illnesses and deaths in cases where “legal highs” were consumed along with alcohol and illicit drugs. In a response to what was seen as a growing phenomenon, a range of substances were added to the list of controlled substances. Additionally, the Criminal Justice (Psychoactive Substances) Act 2010 was enacted to control the sale and distribution of such substances and allow for searches, seizures, and closures of premises.

What are the knock-on effects of yesterday’s ruling?

The ruling states that section 2(2) of the 1977 act is unconstitutional on the basis that it is an excessive delegation of power from the Oireachtas to the Government. Under the Constitution, the sole and exclusive power to make law vests in the Oireachtas (ie, the Dáil, the Seanad, and the President). While the Oireachtas may delegate points of detail to the Government, it may not delegate points of policy and principle; these should be determined by the Oireachtas in primary legislation. Allowing the Government a free hand to determine which drugs are illegal goes further than mere detail. It allows the Government, rather than the Oireachtas, to make law, which renders the section unconstitutional. Thus, any regulations made by the Government since 1977 that added drugs to the list of controlled substances under section 2 of the 1977 Act are invalid. In addition to head shop products, some serious drugs such as ecstasy and benzodiazepines fall into this category.

How water-tight is our drugs legislation?

Yesterday’s ruling only affects a relatively narrow range of substances that were declared to be controlled drugs by way of regulations made under section 2(2). 125 other drugs that were listed in the schedule to the 1977 act itself are not affected; this includes cannabis, heroin and cocaine, among others. Emergency legislation will re-instate the prohibition on drugs affected by the ruling by adding them to the Schedule to the 1977 act, which rectifies the defect that led the Court of Appeal to declare the law unconstitutional.

What does ruling mean for existing convictions?

Questions now surround cases that are either before or due before the courts and will have to be referred to the DPP. However, persons convicted for offences relating to any of the controlled drugs proscribed by section 2(2) of the 1977 act (whether under the 2011 regulation or another regulation passed under this section) would only be able to challenge their conviction now if they had argued in their original case that the law in question was unconstitutional. If they did not, their conviction will stand as the case has been concluded.

On the other hand, 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 — unless the Supreme Court overturns yesterday’s Court of Appeal ruling. If yesterday’s ruling stands, then the law in question would be deemed invalid. The Constitution precludes the introduction of retrospective criminal legislation, and so the emergency legislation can only affect offences occurring after its enactment. Thus, convictions for offences not yet prosecuted relating to drugs proscribed by the invalid section would only be permitted in the event of a successful appeal to the Supreme Court.

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