THE PRESIDENT OF the High Court, Mr Justice Nicholas Kearns, has dismissed bids by three men serving sentences for possession of certain drugs to be released from prison because the substances were not legally prohibited when they were arrested and jailed.
The actions were brought by Keith Willis, jailed for having more than 5,000 ecstasy tablets; Anthony Murphy who admitted possessing €560,000 worth of a synthetic type of cannabis; and Joseph Carberry who accepted possessing a stimulant called pentedrone, who all received custodial sentences after they pleaded guilty to being in possession of various drugs.
They challenged the validity of their detention arising from a Court of Appeal decision to strike down as unconstitutional a provision of the Misuse of Drugs Act declaring possession of some one hundred types of drugs to be an offence.
In a significant judgment delivered by Mr Justice Kearns, he dismissed the men’s actions and held their detention is legal.
What the men argued
In March the Court of Appeal found Section 2(2) of the 1977 Misuse of Drugs Act, on foot of which a regulation making it an offence to possess certain substances was introduced, was unconstitutional because it purported to vest law making powers in the Government when such powers were the exclusive authority of the Oireachtas.
The ruling temporarily made psychoactive drugs legal and lead to the enactment of emergency legislation banning possession of a range of drugs including ecstasy and magic mushrooms.
Following the ruling, the three sought inquiries under Article 40 of the Constitution into the legality of their continued detention, arguing they should be immediately released.
They argued the sections of the Misuse of Drugs Act which made possession of the drugs in question an offence at the time of their arrest are invalid.
They also argued the Ministerial order enacting the Misuse of Drugs Regulations which prescribed the various drugs as illegal substances was invalid at the time the custodial sentences were passed.
The State argued all three are validly detained.
What the judge had to say
In his ruling Mr Justice Kearns said he was bound by a Supreme Court finding in 2006, known as the A case, which overturned a previous decision by the High Court to order the release of a man who admitted unlawful carnal knowledge of an underage girl after finding the offence was unconstitutional.
The A ruling by the Supreme Court, the Judge said, established a number of points including there is neither an expressed or implied principle of retrospective application of unconstitutionality in the constitution.
Cases that have been finally determined on laws later found to be unconstitutional do not have to be set aside.Once finality has been reached the judicial decision must be deemed valid and lawful.
The A case also established there while there is no general retrospective application of a finding that a law is unconstitutional, an exception to that rule might arise. That was in wholly exceptional circumstances, where the interests of justice so require, he said.
Reference to ‘A Tale of Two Cities’
The Judge was satisfied neither Murphy or Willis had shown they come within “the category of exceptions which would render their continues detention unjust.”
The Judge rejected the argument advanced on behalf of Joseph Carberry that he had an appeal against his conviction in existence. The Judge said it would “an invidious distinction on the flimsiest of pretexts” to hold Carberry was entitled to some different treatment from the other two applicants.
It was relevant all three had pleaded guilty before the criminal courts. This was “a potent marker” in determining if they knew they were engaging in criminal conduct or were unwitting innocents.
None of the three, the judge said,were in the position of of “the hapless Dr Manette, prisoner 105 in the Bastille, who in Dickens’ Tale of Two Cities spent 18 years falsely imprisoned having committed no crime whatsoever.”
Their cases
Willis (aged 25), of Rossmore Avenue, Ballyfermot was jailed after admitting to an offence under Section 15 (A) of the Misuse of Drugs Act at Sligo Circuit Criminal Court in 2013. Willis pleaded guilty to possessing ecstasy, valued at €31,250, for sale or supply.
On 16 April 2012, gardai in Sligo discovered a bag containing ecstasy concealed in the boot of the car Willis was driving. Willis claimed he drove to Sligo to get €500 to pay off a €10,000 debt. He was jailed for three years.
In October 2013 Anthony Murphy (aged 43) of Galtymore Road, Drimnagh pleaded guilty at Dublin Circuit Criminal Court to possessing a synthetic type of cannabis for sale or supply at Carnlough Road, Cabra on 6 February 2011. That drug was made illegal nine months previously, in May 2010. He was jailed for five years.
Joseph Carberry (aged 54) admitted at Dublin Circuit Criminal Court having €290,000 of pentedrone for sale or supply on the Swords Road and at junction of Sillogue Road and Balcurris Road, Ballymun on 24 July 2013. Carberry, of Lonsdale Terrace, Ballymun, was jailed for ten years.
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