A ruling which legalises the possession of drugs including ecstasy and magic mushrooms will undermine forthcoming criminal prosecutions, a legal expert has warned.
The Court of Appeal yesterday found that the power of government to ban certain substances under the Misuse of Drugs Act 1977, without the agreement of the Oireachtas, was unconstitutional.
In response the Government rushed emergency legislation through the Dáil last night banning the possession of “head shop” and other drugs which became temporarily legal as a result of the court ruling.
The Bill will be passed by the Seanad today and go to President Higgins for signing.
The three-judge Court of Appeal described the matter as a “constitutional issue of far-reaching importance”, unanimously ruling as invalid a regulation making illegal the possession of the stimulant methylethcathinone.
It said Section 2(2) of the 1977 Misuse of Drugs Act, under which the regulation was brought in, was unconstitutional because it purported to give the government law-making powers which are the exclusive authority of the Oireachtas.
Head shop drugs
Minister for Health
Leo Varadkar
said other drugs affected by the ruling included ecstasy, CAT, magic mushrooms and substances known as “head shop” drugs.
“They all have very significant health risks that outweigh any perceived recreational benefits,” he warned, stressing that their sale, supply, import and export remained an offence.
An appeal to the Supreme Court was under consideration by the Government.
Garnet Orange SC, author of Drug Offences in Ireland, said all pending cases for possession, sale or supply of such drugs were doomed to fail unless the accused had already pleaded guilty.
“Anything on the 1977 schedule, all of the main drugs like diamorphine [heroin] and cannabis resin; those prosecutions are still valid. But that’s not the case with the likes of MDMA, which was added by an order of the government in the mid-eighties.”
Made illegal
He said a similar situation applied to a range of “head shop” drugs, which were made illegal by then health minister
Mary Harney
in 2010.
In all about 120 drugs are affected. “If your trial is due to start tomorrow and you’re up for a whole load of ecstasy, you’re out. The drug is not unlawful. It only becomes an unlawful drug once it’s lawfully added to the schedule.”
However he said the number of cases in jeopardy is likely to be quite small as prosecutions solely for the affected drugs are relatively rare. Existing convictions are unlikely to be affected, he said.
Mr Varadkar said he had been told that “dozens” of prosecutions could be affected. “This case,” he said, “has been anticipated so I am advised that people who were charged in recent times in many cases were charged not just under this section of legislation but under other legislation as well.”
The Court of Appeal case concerned the prosecution of Stanislav Bederev for possession for sale of methylethcathinone. That case was on hold pending the legal challenge.
