Lynch v Minister for Health and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 July 2024
• Neutral Citation: [2024] IEHC 463
• Court: High Court
• Docket Number: 2021 1092 JR

Between

Denise Lynch

Applicant

and

Minister for Health

Commissioner of An Garda Síochána

Government of Ireland

Attorney General

Director of Public Prosecutions

Respondents

[2024] IEHC 463

2021 1092 JR

THE HIGH COURT

JUDICIAL REVIEW

Appearances

Derek Shortall SC and Stephen T. Faulkner for the applicant instructed by Mulholland Law

William Abrahamson SC and Frank Kennedy for the first to fourth named respondents instructed by the Chief State Solicitor

James Dwyer SC and Conor McKenna for the fifth named respondent instructed by the Chief Prosecution Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 July 2024

INTRODUCTION

1 This judgment addresses the question of whether the Irish State is entitled, as a matter of EU law, to prohibit the importation and sale of products which contain elements of the main psychoactive ingredient in cannabis. The essence of the Applicant's case is that, provided that the quantity of this psychoactive ingredient present in the product falls below a certain threshold, the product does not constitute a “ drug” or “ narcotic” for the purpose of EU law. Rather, on the Applicant's case, the product constitutes a conventional “ good” subject to the principle of the free movement of goods under the Treaty on the Functioning of the European Union.

2 The Applicant's case is predicated, almost exclusively, on a tendentious interpretation of a decision of the European Court of Justice. An argument in almost identical terms to that now made by the Applicant has previously been rejected by the High Court in Bogusas v. Minister for Health [2022] IEHC 621.

CANNABIS, THC AND CBD

3 These proceedings are concerned with the regulation of two chemical compounds which may be extracted from a cannabis plant. The first chemical compound is delta-9-tetrahydrocannabinol (“ THC”). THC is the principal psychoactive ingredient in cannabis. The second chemical compound is cannabidiol (“ CBD”).

4 Under national law, THC is a controlled drug for the purpose of the Misuse of Drugs Act 1977 and the implementing regulations made under the Act. This is because it comes within the definition of “ cannabinol derivative”. Any substance or preparation which contains THC is a controlled drug, irrespective of the proportion of THC present.

5 There are exceptions for delta-9-tetrahydrocannabinol contaminant in foodstuffs below certain prescribed levels, and for medicinal cannabis products, but these exceptions are not relevant to the present proceedings. The principal exceptions for foodstuffs came into effect on a date subsequent to the date upon which the events, the subject-matter of these proceedings, occurred: see the Misuse of Drugs (Amendment) Regulations 2023 (S.I. No. 150 of 2023).

6 The gravamen of the Applicant's case is that a CBD based product—such, as for example, hemp oil—which contains elements of THC should not be regarded as a controlled drug provided that the proportion of THC is below a certain threshold, namely 0.2 per cent.

PROCEDURAL HISTORY

7 The Applicant is the owner of a shop known as “ D. Hemp Shop” located at 17 Market Street, Cootehill, County Cavan (“ the business”). The business also has an online presence. The business has been trading since April or May 2021.

8 These proceedings have their genesis in events on 24 September 2021. On that date, members of An Garda Síochána executed search warrants against the business premises and the Applicant's home, respectively. Officials from the Food Safety Authority of Ireland and the Health Products Regulation Authority (“ HPRA”) were also in attendance. The search warrants had been issued by the District Court pursuant to section 26 of the Misuse of Drugs Act 1977.

9 During the course of the search of the business premises, a number of items had been seized including, inter alia, CBD oils, hemp protein, CBD coffee, “ Hempture” buds, massage oils and a product described as “ life serum”. The Applicant gave separate statements, under caution, to an official from the Food Safety Authority of Ireland and to a member of An Garda Síochána, respectively.

10 The Applicant has since conceded, on affidavit, that THC is a psychoactive substance and that some of the products which she sells may contain traces of THC.

11 A number of the products which had been seized were subsequently returned to the Applicant. Other products were retained and were forwarded to Forensic Science Ireland (“ FSI”) for examination. A certificate of analysis pursuant to section 10 of the Misuse of Drugs Act 1984 has been exhibited as part of these proceedings.

12 The within judicial review proceedings were instituted on 20 December 2021. Leave to apply for judicial review was granted ex parte on 17 January 2022. The essence of the Applicant's case is described as follows at paragraph (e) 16 of the statement of grounds:

“On the basis of their content, products such as those retailed by the Applicant apparently do not constitute drugs for the purpose of EU law or the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961, concluded in New York on 30 March 1961.”

13 It is pleaded, at paragraph (e) 17, that the prohibition on retailing products, lawfully produced within the European Union, which contain less than 0.2 per cent THC constitutes a measure having equivalent effect to quantitative restrictions within the meaning of Article 34 of the Treaty on the Functioning of the European Union (“ TFEU”).

14 Subsequent to the institution of these judicial review proceedings, the Applicant has been charged with a number of alleged offences under the Misuse of Drugs Act 1977. In brief, the Applicant is charged, variously, with the unlawful possession of cannabis and cannabis resin, and with the possession, for the purpose of sale or supply, of cannabis and cannabis resin. The date of the alleged offences is 24 September 2021. The criminal proceedings were initiated by way of application, in March 2023, to the relevant District Court Office for the issuance of summonses pursuant to the Courts (No. 3) Act 1986.

15 The criminal proceedings are pending before the District Court. The Applicant has not sought to amend her statement of grounds to seek any specific relief in relation to the criminal proceedings.

16 The statement of grounds had sought orders of certiorari quashing the search warrant pursuant to which the products (described earlier) had been seized from the business premises. The Director of Public Prosecutions applied to be joined to the proceedings to address this aspect of the case. The High Court (Hyland J.) made an order on 16 January 2024 joining the Director of Public Prosecutions as a respondent to the proceedings. Counsel for the Applicant has since confirmed, at the hearing on 20 June 2024, that the Applicant is not now pursuing any reliefs in respect of the search warrants.

17 Counsel also confirmed that the pleaded grounds, which are referable to Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013, are not being pursued. This concession is sensibly made in circumstances where no evidence has been adduced to establish that the seized products meet the definition of “ agricultural products”.

NARCOTIC DRUGS AND FREE MOVEMENT OF GOODS

18 The European Court of Justice (“ ECJ”) has consistently held that the principle of free movement of goods does not apply to narcotic drugs. This is subject to an exception in respect of drugs which are to be used for medical and scientific purposes and which are distributed through strictly controlled channels. Narcotic drugs which are not distributed through such strictly controlled channels are prohibited from being released into the economic and commercial channels of the European Union.

19 The concept of a “ narcotic drug” is not specifically defined under EU legislation in relation to the free movement of goods. The pragmatic approach taken by the ECJ has been to adopt the definitions which are to be found in various international instruments which the Member States have cooperated on, or acceded to, such as the United Nations Single Convention on Narcotic Drugs 1961 (as amended in 1972) (“ Single Convention on Narcotic Drugs”).

20 Article 1(1)(j) of the Single Convention on Narcotic Drugs defines the term “ drug” as meaning any of the substances in Schedules I and II of that convention, whether natural or synthetic. Relevantly, cannabis, cannabis resin and cannabis extracts and tinctures are all listed in Schedule I.

21 The term “ cannabis” is defined, under the Single Convention on Narcotic Drugs, as the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated. The term “ cannabis plant” is defined as any plant of the genus Cannabis.

22 An early example of the approach of the ECJ is provided by the judgment in Josemans, Case C-137/09, EU:C:2010:774. There, the ECJ held that a coffee-shop proprietor, located in the Netherlands, could not rely on the freedom of movement or the principle of non-discrimination in relation to the marketing of cannabis. The ECJ relied on the fact that cannabis is among the substances and products referred to in the Single Convention on Narcotic Drugs.

23 The ECJ adopted a more nuanced approach in its decision in Kanavape, Case C-663/18, EU:C:2020:938. The matter had come before the ECJ by way of a reference for a preliminary ruling from a French court pursuant to Article 267 TFEU. The main proceedings concerned the criminal conviction of the directors of a company for infringements of domestic legislation on poisonous substances. The criminal convictions related to the importation of an oil based product which contained...