Bederev v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin,Mr Justice Charleton
• Judgment Date: 22 June 2016
• Neutral Citation: [2016] IESC 34
• Date: 22 June 2016
• Court: Supreme Court
• Docket Number: Record number, High Court: 2012 11018 P Appeal number, Court of Appeal: 2014/1409 Supreme Court appeal number: 2015/31 [2014] IEHC 490 [2015] IECA 38 [2016] IESC,[C.A. No. 1409 of 2014]

Denham CJ

O'Donnell J

McKechnie J

Clarke J

MacMenamin J

Dunne J

Charleton J

Between

Stanislav Bederev

Plaintiff/Respondent

and

Ireland and the Attorney General and the Director of Public Prosecutions

Defendant/Appellant

[2016] IESC 34

Charleton J.

Record number, High Court: 2012 11018 P

Appeal number, Court of Appeal: 2014/1409

Supreme Court appeal number: 2015/31

[2014] IEHC 490

[2015] IECA 38

[2016] IESC

An Chuirt Uachtarach

The Supreme Court

Legislative authority ? Unconstitutional usurpation ? Criminal possession of a drug ? Appellant seeking a declaration of unconstitutionality ? Whether subsidiary legislative action was unconstitutional usurpation

Facts: The respondent, Mr Bederev, faced a charge on the criminal possession of a drug called methylethcathinone. This drug was not included in the schedule of controlled drugs originally appended to the Misuse of Drugs Act 1977. Instead, it was added by order of the Government pursuant to the Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order 2011. While this drug was agreed by both sides to be a dangerous drug akin to amphetamine, and while s. 2(2) of the 1977 Act allows the Government to add drugs to the schedule, thus criminalising their possession and sale, this subsidiary legislative action was contended by Mr Bederev to be law-making by the executive. Consequently, he contended it to be an unconstitutional usurpation of the democratic function reserved exclusively under the Constitution to the elected public representatives of the people in Dáil Éireann and Seanad Éireann. The Court of Appeal made a declaration to that effect, which the State appellants appealed to the Supreme Court. The respondent asserted that the power to annul the decision of the Government, as reserved to the Oireachtas in the legislation, has no effect in constricting what is claimed to be the unlawful delegation of a central democratic power. The State appellants argued that this reasoning is incorrect. Central to the State?s argument was that there is a policy clearly discernible within the legislation; meaning the entirety of the 1977 Act and including the schedule of proscribed drugs as of the date of passing which had been outruled by the Court of Appeal. All that was being done here, according to the State, was to add details to a structure that had already been well-defined by the Oireachtas.

Held by Charleton J that, in the 1977 Act, it was clear that the entire enactment, as to the preamble, the individual sections and the schedule setting out the drugs then controlled, should be read as a whole in order to determine the principles upon which any new drug might be added by the Government to the list passed as part of the legislation in 1977. Charleton J held that the entire text should also be searched to find the boundaries to the power to add new substances. Charleton J noted that central to the guidance given to the Government by the 1977 Act was the schedule of drugs appended to the legislation. Charleton J noted that both the drugs individually set out in particular sections within the legislation and the schedule, which is part thereof, describe and delimit the kind of drugs needing control; only such drugs, those dangerous to human health and subject to abuse actually or potentially, may be added. Charleton J noted that any such addition is subject to scrutiny by the Oireachtas through the mechanism in the Act enabling the legislature to annul any such delegated legislative authority.

Charleton J held that the judgement and order of the Court of Appeal should be set aside and the order of the High Court, refusing a declaration of unconstitutionality in respect of s. 2(2) of the 1977 Act, restored.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 22nd day of June, 2016

1 I agree with the judgment and order proposed by my colleague, Charleton J. I would, however, wish to add a few observations.

2 First, I would wish to record my entire concurrence with Charleton J.'s observations to the effect that, when engaged in a principles and policies analysis, the task of a court is to analyse what is in the statute. I do not think it is part of that analysis to consider evidence adduced as to how the statute in question is administered by the relevant authorities. It is the statute which must be looked at in order to analyse whether the principles and policies are sufficiently identified.

3 The first observation leads to a second. As Charleton J.'s judgment makes clear, for the purposes of a principles and policies analysis, one is entitled to look to the Schedule, as well as the main body of the Act. Absent a resort to the Schedule in this case, one might very possibly pose to oneself questions such as ‘ How can it be determined which drugs are “dangerous”?’ (see paragraph 58 of the judgment of the Court of Appeal).

4 The misconception regarding the status of the Schedule, I think, stemmed from the usage of the word ‘ or’ in Hardiman J.'s judgment in Montemuino v. The Minister for Communications, Marine & Natural Resources[2013] IESC 40. Indeed, the word ‘ or’ is one which is very apt to mislead in interpretation. In Montemuino the word ‘ or’ was used in the disjunctive sense. It posed an alternative, as in the case of a child who may ask for X or Y for Christmas. (See Principles of Legislative and Regulatory Drafting, Ian McLeod, Hart Publishing, P.79, 2009). The relevant words of the Fisheries Legislation in question in Montemuino provided for forfeiture following conviction of ‘ all or any of the following found on the boat to which the offence relates (a) any fish, (b) any fishing gear.’ (emphasis added). It was in that context that Hardiman J. correctly held that the word ‘ or’ was, in that sense, and in the context of that legislation, antithetical and disjunctive. The words conveyed that, on a conviction, either the entirety of the fish or equipment, or just part of the fish or equipment might be forfeited, and that this was a matter for the sentencing court's discretion.

5 Partly as a consequence of applying this interpretation of ‘ or’, which thereby excluded the Schedule from consideration, the Court of Appeal reasoned that there was no basis for suggesting that the power of the government to make an order under s.2(2) of the Misuse of Drugs Act, 1977 (‘the Act’), could be read as being implicitly limited on an ejusdem generis basis, by reference to the categories of drugs listed in the Schedule.

6 In fact, in the 1977 Act, the word ‘ or’ is used, in a different and conjunctive sense, as in the case of a sign on a bus saying a seat is reserved for elderly or disabled people. (See, again, McLeod, op. cit., at p.79/80).Section 2(1) of the Act defined a ‘ controlled drug’ as:

‘any substance, product or preparation (other than a substance, product or preparation specified in an order under subsection (3) of this section which is for the time being in force) which is either specified in the Schedule to this Act or is for the time being declared pursuant to subsection (2) of this section to be a controlled drug for the purposes of this Act.’ (emphasis added) This is conjunctive.

7 Section 2(2) of the 1977 Act goes on to provide:

‘The Government may by order declare any substance, product or preparation (not being a substance, product or preparation specified in the Schedule to this Act) to be a controlled drug for the purposes of this Act and so long as an order under this subsection is in force, this Act shall have effect as regards any substance, product or preparation specified in the order as if the substance, product or preparation were specified in the said Schedule.’

8 Section 2(2) contains the words attaching the Schedule to the body of the Act. These entail that analysis is not confined to the main body of the Act, when looking for principles and policies. A consideration of the whole Act (including the Schedule), is permissible.

9 Bennion, on Statutory Interpretation, 4th Edition (Butterworths 2002, at page 614), makes a number of observations which are relevant on this point. The author observes that it is often found convenient to incorporate part of the operative provisions of an Act in the form of a Schedule, and that the Schedule is often used to ‘ hive off’ provisions which are too long, or detailed, to be put in the body of the Act. This observation applies to the Act and Schedule.

10 Bennion refers to Attorney General v. Lamplough [1878] ExD 214, where, on the question of a Schedule to an Act, imposing a stamp duty on a number of articles identified in that Schedule, Brett L.J. observed:

‘… with respect to calling it a schedule, a schedule in an Act of Parliament is a mere question of drafting – a mere question of words.The schedule is as much a part of the statute, and is as much an enactment as any other part. …’(at page 229) (emphasis added)

(See, also, Flower Freight Company Ltd. v. Hammon [1963] QBD, at page 275, and R v. Legal Aid Committee No. 1 (London) Legal Aid Area, ex parte Rondel [1967] QBD 483, at 489).

11 To the same effect, Dodd in “Statutory Interpretation in Ireland” (Tottel 2008) observes that a Schedule often contains matter which is deemed too detailed and cumbersome to be contained in the main body of an Act (para. 3.36). The author points out that Schedules have been used to set out operative components on the nature of sections, international treaties, lists of repealed and amended acts, technical and regulatory matters, forms, transferred functions, and even proposed bills. (See the judgment of this Court in Riordan v. An Taoiseach (No. 2) [1999], where the Schedule was undoubtedly treated as an integral part of the...