The Fallout From Temporary Legal Drugs Debacle

As you probably know earlier this week for two days over 100 drugs were legalised due a loophole created in the law following a court ruling.

Drugs such as ecstasy, ketamine, magic mushrooms, and others were on Tuesday and Wednesday technically legal to possess. Although the sale, supply, import and export of them was still forbidden during this period.

But how did this legal loophole come about? You can read my previous blog for more background on the story

Essentially it follows a ruling in the Court of Appeal following the appeal of a case. The result of the decision was that all the drugs added to the list through regulations under Section 2 (2) of the Misuse of Drugs Act 1977 were not illegal.

A ministerial order had been used instead of the law passing both houses of the oireachtas (dail and seanad), and thus it was found to be unconstitutional. Hence all the drugs outlawed under Section 2 (2) like ecstasy, ketamine and mushrooms were suddenly legal.

The government who had won the case in the High Court before losing the appeal were aware this scenario might take place and had prepared draft legislation which was rushed through this week to ban these substances again.

Judge Gerard Hogan and his colleagues Judge Finlay and Judge Peart are the ones who handed down the ruling in the Court of Appeal. You can read the 30 paged ruling here

The ruling is fascinating not just for the legal limbo and debate it created this week, but also for the comments issued by Judge Hogan on the formation of drug policy in Ireland.

Firstly Judge Hogan acknowledged the consequences of the ruling when he stated it “presents a constitutional issue of far-reaching importance”

What the judge did, as outlined in this Irish Examiner article by Cormac O’Keeffe, is highlight the absence of rationale when it comes to the banning of drugs in Ireland

Judge Hogan was critical of the government for the fact there is an absence of explanations in the 1977 Act which sets out how and on what basis new drugs would be added to the schedule.

Judge Hogan said the following:

“One may immediately ask, how is it to be determined which of these dangerous or harmful drugs to be controlled and which are not?”

“How can it be determined which drugs are “dangerous”?

“Again, one might ask: Dangerous to whom? Is this standard to be measured by reference to the general public? Or would it suffice that the drug in question would be dangerous if consumed or used by certain sectors of society such as children or young adults?

“By what standards are the questions of whether particular drugs are “harmful” and liable to be “misused” to be assessed and determined?”

The judge outlined that “Alcohol and tobacco are the most common cases in point” and that “On any view, both drugs are harmful and are liable to be misused”

What Judge Hogan has done is raised a number of critical questions, ones many activists would have raised for years. But to be stated in court and in such a fashion is significant.

There are few voices from the legal profession that have voiced such concerns or been supportive of drug law change. Although some have.

Judge Tony Hunt in March 2014 called for a reform of drug laws which has seen drug mules charged with more serious offences than major players

In January of last year James MacGuill who is a criminal lawyer and a former president of the Law Society of Ireland urged a rethink of the law on cannabis

Others in the profession may hold such views, but few have been openly critical.

During the passing of Misuse of Drugs Amendment Act 2015, which banned the substances again, there were a number of Senators calling for reform.

One was longtime advocate of reform the Labour senator and law professor Ivana Bacik. She said we need to consider models from other countries.

Her involvement with calling for reform goes as far back as 1997, which was a big year in activism

During the debate her former party colleague James Heffernan, now an independent senator, called for the legalisation of recreational drugs

Minister for Health Leo Vradkrar when discussing the bill in the Senad suggested he favours drug law reform

“A number of senators called for a more health-focused approach rather than a criminal justice one to deal with the drugs crisis,” and “My own instincts are in that direction too.” he added

Of course Leo is in his final year of office so whether we see reform remains to be seen. We might not even see it if he was given another few years in the job. Also without details who knows what such reform envisages.

It is still early days so it is hard to tell the fallout from this week. The story itself hit headlines across the world. While within hours of the judgement there was at least one defendent on drug charges bringing the ruling up

It has been suggested that hundreds of cases could be affected by this ruling. At least four of these cases are considered big ones 

So this fallout will certainly impact many people in the coming weeks and months.

The debacle has brought some debate about drug policy to the fore, but whether things will change remains to be seen.

If you or friends were prosecuted under the part of the act found unconstitutional you should be able to appeal any finding. I would suggest contacting your solicitor or an agency like FLAC


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