Bederev v Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Gilligan
• Judgment Date: 29 May 2014
• Neutral Citation: [2014] IEHC 490
• Date: 29 May 2014

[2014] IEHC 490

THE HIGH COURT

[No. 11018 P/2012]

Bederev v Ireland & Ors

BETWEEN

STANISLAV BEDEREV

PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1977 (CONTROLLED DRUGS) (DECLARATION) ORDER 2011 SI 551/2011

MISUSE OF DRUGS ACT 1977 S2(1)

MISUSE OF DRUGS ACT 1977 S2(2)

CONSTITUTION ART 15

MISUSE OF DRUGS ACT 1977 S2

CONSTITUTION ART 15.2.1

CITYVIEW PRESS LTD v CHOMHAIRLE OILIUNA & ORS 1980 IR 381

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26

ALIENS ACT 1935 S5(1)

CRIMINAL JUSTICE (PSYCHOACTIVE SUBSTANCES) ACT 2010

JOHN GRACE FRIED CHICKEN LTD & ORS v CATERING JOINT LABOUR COMMITTEE & ORS 2011 3 IR 211 2011 1 ILRM 392 2011/28/7579 2011 IEHC 277

DOUGLAS v DPP & ORS 2013 2 ILRM 324 2013/14/3916 2013 IEHC 343

HEALTH ACT 1970 S78

HEALTH ACT 1970 S78(6)

COLLINS v MIN FOR FINANCE & ORS UNREP HIGH [DIVISIONAL] 26.11.2013 2013/10/2870 2013 IEHC 530

LEONTJAVA v MIN FOR JUSTICE 2004 1 IR 591

MCDAID v JUDGE SHEEHY & ORS 1991 1 IR 1

IMPOSITION OF DUTIES ACT 1957

PIGS MARKETING BOARD v DONNELLY (DUBLIN) LTD 1939 IR 413

MCDONALD v BORD NA GCON & AG (NO 2) 1965 IR 217 1966 100 ILTR 89

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

UNITED STATES TOBACCO INTERNATIONAL INC v MIN FOR HEALTH 1990 1 IR 394 1990/8/2391

HEALTH ACT 1947 S66

HEALTH (RESTRICTED ARTICLE) ORDER 1985 SI 429/1985

HEALTH ACT 1947 S39

HEALTH ACT 1947 S3

HEALTH ACT 1947 S5

HEALTH ACT 1947 S6

HEALTH ACT 1947 S7

MIN FOR JUSTICE v R (SM) 2008 2 IR 242 2007/41/8454 2007 IESC 54

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

MCGOWAN & ORS v LABOUR COURT & ORS UNREP 2013 2 ILRM 276 2013 24 ELR 293 9.5.2013 2013/37/10980 2013 IESC 21

BUPA IRELAND LTD & BUPA INSURANCE LTD v HEALTH INSURANCE AUTHORITY & ORS UNREP MCKECHNIE 23.11.2006 2006/8/1383 2006 IEHC 431

MISUSE OF DRUGS ACT 1977 S16

MISUSE OF DRUGS ACT 1977 S17

MISUSE OF DRUGS ACT 1977 S19

MISUSE OF DRUGS ACT 1977 S28

DODD STATUTORY INTERPRETATION IN IRELAND 2008 PARA 3.38

RODGERS v MANGAN UNREP FINLAY GEOGHEGAN 15.7.1996 1999/22/7218

BURKE v DUBLIN CORP 1991 1 IR 341 1990/6/1462

MISUSE OF DRUGS ACT 1977 S38(3)

CRIMINAL LAW ACT 1935 S18

DOUGLAS v DPP & ORS 2013 2 ILRM 324 2013/14/3916 2013 IEHC 343

Drug offences – Statutory interpretation – Plenary summons – Plaintiff seeking a declaration that s. 2(2) of the Misuse of Drugs Act 1977 is invalid – Whether s. 2(2) is in breach of Article 15 of the Constitution

Facts: The plaintiff, Mr Bederev, was charged in April, 2012 with offences under s. 3, s.15 and s. 27 of the Misuse of Drugs Act 1977 related to the possession and possession with intention to sell certain controlled substances. In October, 2012, the Charge Sheets were amended changing the controlled substance for which the charge was applied from mephedrone to methylethcathinone, which was defined by the Misuse of Drugs Act 1997 (Controlled Drugs)(Declaration) Order 2011 as a controlled substance within the meaning of the Act. The plaintiff applied to the High Court by way of plenary summons for a declaration that s. 2(2) of the Act is invalid having regard to Article 15 of the Constitution. In the alternative the plaintiff also sought a declaration that the Order is invalid with regard to Article 15 of the Constitution and an injunction restraining the prosecution of the charges against him in accordance with such a declaration. The plaintiff submitted that the task of the Court in the case of such an application is to read and construe the legislative provision in question closely, keeping in mind the presumption of constitutionality from which it benefits and to determine whether the legislation is itself an impressible delegation of the law-making function conferred on the Oireachtas by Article 15.2.1, applying Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 IR 381. The plaintiff submitted that the Government did not only have regard to the purpose of the Act which the defendant submitted can be discerned from the long title, but that the Government has had regard to other concerns such as public order concerns and the integrity of the economy and social services. The plaintiff submitted that in the case of the specific facts at issue the power given to the Government is proscriptive rather than prescriptive. The plaintiff also submitted that the Court was limited in its jurisdiction in that it could only decide the case on the contents of the pleadings as presented and that the defendant had not set out in the pleadings what principles and policies are to be found in the Act. The defendants submitted that the Act must be construed in a purposive and schematic manner, arguing that the starting point in the construction of s. 2 is the presumption of constitutionality set out in Pigs Marketing Board v Donnelly [1939] IR 413. The defendants submitted that this case indicates that it is the subject matter of what is delegated, rather than the expression of principles and policies, that determines whether there has been an excessive delegation of legislative power. Counsel also submitted that if the delegated power is narrow in nature, being delegated to address some specific measure rather than wide, then it is not necessary for there to be detailed guidance given to the Minister or other delegated body prescribing the extent of the discretion in question. Therefore, the defendants submitted that s. 2(2) of the Act is not in breach of Article 15.2.1 and the Order is not ultra vires the primary legislation since there are adequate principles and policies in the legislation to guide the exercise of the discretion delegated to the Government in this regard.

Held by Gilligan J that, having considered s. 2(2), the Court must keep in mind the presumption of constitutionality. He held that there are adequate principles and policies discernible from the overall scheme of the legislation to guide the Government in the exercise of the discretion delegated to it by s. 2(2) of the legislation and to permit any person dissatisfied with the exercise of that discretion to seek adequate judicial review of such actions. Gilligan J held that legislative provisions must be read literally and, should that not be sufficient to derive an appropriate meaning from those provisions, a purposive or contextual approach should be taken but no reading of legislation can be pushed so far as to render the meaning derived from it an absurdity.

Gilligan J held that, for the reasons stated, the Court refuses the relief sought.

Application refused.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 29th day of May, 2014

2 1. The plaintiff to these proceedings was charged on 26 ^th April, 2012, at Blanchardstown District Court with offences under s. 3, s. 15 and s. 27 of the Misuse of Drugs Act 1977 ("the Act") related to the possession and possession with intention to sell certain controlled substances. On 8 ^th October, 2012, the Charge Sheets were amended changing the controlled substance for which the charge was applied from mephedrone to methylethcathinone. The substance in question, methylethcathinone, was defined by the Misuse of Drugs Act 1997 (Controlled Drugs)(Declaration) Order 2011 ("the Order") S.I. No. 551 of 2011 as a controlled substance within the meaning of the Act. It was, prior to the commencement of the Order, a legally available recreational drug which was usually sold in "head shop" type businesses in Ireland. The trial of these charges stands adjourned in the District Court pending the outcome of these proceedings.

3 2. Section 2(1) of the Misuse of Drugs Act 1977 defines 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."

4 Section 2(2) of the Act provides:

"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."

5 It is pursuant to this provision that the Order was commenced. Therefore there are two means by which a substance can be defined as "controlled" within the meaning of the Act; either by primary legislation which adds the substance in question to the list of prescribed substances in the Schedule to the Act or through delegated legislation as provided for in s. 2(2) of the Act.

6 3. The plaintiff to these proceedings applies by way of plenary summons for a declaration that s. 2(2) of the Act is invalid having regard to Article 15 of the Constitution. In the alternative the plaintiff also seeks a declaration that the Order is invalid with regard to Article 15 of the Constitution and an injunction restraining the prosecution of the charges against him in accordance with such a declaration.

7 4. The Court had the benefit of hearing oral evidence from Ms. Lauren Martin, solicitor, of Martin and Gately Solicitors, representing the plaintiff and from Ms. Marita Kinsella, Chief Pharmacist at the Department of Health between January 2009, and October 2013, the period during which the Order in question was drafted and commenced. The Court has also had the benefit of written and...