Lynch v The Minister for Health & Ors

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Anthony M. Collins
• Judgment Date: 31 October 2025
• Neutral Citation: [2025] IECA 216
• Docket Number: Court of Appeal Record Number: 2025 31

Between/

Denise Lynch

Applicant/Appellant

and

The Minister for Health, The Commissioner of An Garda Síochána, The Government of Ireland, Ireland, The Attorney General and The Director of Public Prosecutions

Respondents

[2025] IECA 216

Costello P.

Hyland J.

Collins J.

Court of Appeal Record Number: 2025 31

High Court Record Number: 2021/1092 JR

AN CHÚIRT ACHOMHAIRC

THE COURT OF APPEAL

Judicial review – Free movement of goods – Costs – Appellant seeking a declaration by way of judicial review – Whether the appellant advanced a ius tertii

Facts: The appellant, Ms Lynch, in her appeal against the judgments of the High Court delivered on 25 July 2024 ([2024] IEHC 463) (the first judgment) and on 19 December 2024 ([2024] IEHC 712) (the second judgment) respectively, and the order of the High Court made on the second of those dates, sought twelve reliefs by way of judicial review, the first of which was a declaration by way of judicial review that the outright and absolute prohibition of all products containing even minimum levels of Tetrahydrocannadabinol (THC) or tetrahydroderivatives of cannabinol, contained within inter alia the Schedule of the Misuse of Drugs Act 1977: breaches the principle as to the free movement of goods within the European Union; breaches the appellant’s rights under Articles 34 to 36 of the Treaties of the European Union; breaches the appellant’s rights under Regulation (EU) 1307/2013 of the European Parliament and Council; breaches the appellant’s rights under natural and constitutional justice; and breaches the appellant’s rights under the laws of the European Union and therefore of Irish constitutional law.

Held by the Court of Appeal that, regarding the appeal against the first judgment, insofar as it was contended on the appellant's behalf that Case C-663/18 B.S.& C.A. (EU:C:2020:938) (Kanavape) could be interpreted so as to confer a prima facie entitlement upon her, subject to the fourth respondent invoking Art. 36 of the Treaty on the Functioning of the European Union (TFEU), to market preparations that contain cannabidiol (CBD) derived from cannabis plants with a THC content no higher than 0.20%, she had adduced no evidence of the THC content of the cannabis plants from which the CBD oils that she exposed for sale had been extracted. The Court held that were it minded to make a declaration that reflected the Court of Justice’s reply in Kanavape, the appellant had adduced nothing to show how she might possibly benefit from the grant of that relief. In those circumstances, the Court held that the appellant appeared to advance a ius tertii, citing A. v Governor of Arbour Hill Prison [2006] 4 I.R. 88, at 185-6, by reason of which the grant of such relief would serve no useful purpose, and State (ex parte Abenglen Properties Ltd) v Dublin Cpn [1984] I.R. 381. Regarding the appeal against the second judgment, the Court of Appeal considered that the costs order that the High Court made was well within the range of the orders that it was entitled to make.

The Court of Appeal dismissed the appeal and affirmed both of the judgments delivered, and the order made, by the High Court.

Appeal dismissed.

Appearances:

For the Appellant: Derek Shortall SC and Stephen T. Faulkner, instructed by Mulholland Law, Solicitors

For the first to fifth named Respondents: William Abrahamson SC and Frank Kennedy, instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 31 ^st day of October 2025

I. Introduction

1 . In her appeal against the judgments of the High Court (Simons J.) delivered on 25 July 2024 ( [2024] IEHC 463, hereafter ‘the first judgment’) and on 19 December 2024 ( [2024] IEHC 712, hereafter ‘the second judgment’) respectively, and the order of the High Court made on the second of those dates, Ms. Denise Lynch (hereafter ‘the appellant’) seeks no less than twelve reliefs by way of judicial review, the first of which is:

A Declaration by way of Judicial Review that the outright and absolute prohibition of all products containing even minimum levels of Tetrahydrocannadabinol (THC) or tetrahydro derivatives of cannabinol, contained within inter alia the Schedule of the Misuse of Drugs Act 1977, breaches the principle as to the free movement of goods within the European Union; breaches the Applicant's rights under Articles 34 to 36 of the Treaties of the European Union (sic); breaches the Applicant's rights under Regulation (EU) 1307/2013 of the European Parliament and Council; breaches the Applicant's rights under natural and constitutional justice and breaches the Applicant's rights under the laws of the European Union and therefore of Irish constitutional law.

2 . In the course of the submissions addressed to this Court on behalf of the appellant and the first to fifth named respondents respectively, the appeal having been discontinued as against the sixth named respondent by agreement at the outset of the hearing of the appeal, it became clear that the appellant's case stands or falls on the interpretation of the judgment of the Court of Justice of the European Union (hereafter ‘the Court of Justice’) in Case C-663/18 B.S. & C.A. (EU:C:2020:938, hereafter ‘ Kanavape’). This judgment thus unfolds in the following way: first, a brief description of the factual background to the appeal and matters arising therefrom; second, an interpretation of Kanavape that considers both the findings made in the first judgment and the submissions advanced on the appellant's behalf in this appeal; third, my rulings upon both appeals.

3 . It will assist to explain some of the terms used in the Kanavape judgment, the first judgment and in the parties' submissions. Cannabis sativa L. (hereafter ‘cannabis’) is an annual herbaceous flowering plant that has been cultivated throughout recorded history. It is, inter alia, a source of industrial fibre, oil, food, and medicine. Cannabis contains up to 113 organic compounds, or cannabinoids. Amongst these are tetrahydrocannabinol (hereafter ‘THC’), usually in the form of delta-9-tetrahydrocannabinol, and cannabidiol (hereafter ‘CBD’). THC is psychoactive. It is classified as a “ narcotic drug” for the purposes of the United Nations 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 ( United Nations Treaty Series, vol. 520, No. 7515, hereafter ‘the Single Convention’) and a “ psychotropic substance” for the purpose of the Convention on Psychotropic Substances, 1971, concluded in Vienna on 21 February 1971 ( United Nations Treaty Series, vol. 1019, No. 14956). As a consequence, THC comes within the ambit of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances concluded in Vienna on 20 December 1988 ( United Nations Treaty Series, vol. 1582, No 27627). Ireland is a party to all three conventions: the European Union is a party to the third. As a cannabinol derivative within the meaning of s. 2(1) of the Misuse of Drugs Act 1977 (hereafter ‘the Act of 1977’), THC is a “ controlled drug” for the purposes of that Act and the regulations made thereunder. The parties agree that, in the current state of the law of Ireland, a preparation or compound that contains a trace of THC is a controlled drug. CBD is a non-psychoactive extract of cannabis. It is not a “ controlled drug” for the purposes of the Act of 1977.

II. Factual Background

4 . The appellant is the owner of D.Hemp Shop located in the State, with an online presence which she claims permits her to advertise and to sell her products to prospective customers located throughout the European Union. D.Hemp Shop exposed for sale a number of products that contain CBD, including hemp oils manufactured by Hempture, which styles itself as Ireland's oldest CBD producer. Hempture CBD oils are made in Ireland and approved by the Irish Industrial Hemp Association. Certificates of analysis provided by EirLab, on behalf of Hempture, exhibited at para. 12 of the affidavit that the appellant made on 24 November 2021, show that the CBD oils that it manufactures and which D.Hemp Shop purchased for sale may contain between 3% and 25% CBD. The same certificates also show that certain of those oils contained THC, but in a proportion that did not exceed 0.20%. At para. 7 of her affidavit, the appellant says that, with respect to the products sold by her business that may contain THC, the traces of that compound “ are lawfully permitted within the parameters specified under, inter alia, EU Regulation 1307/2013 … .”

5 . Paragraphs 7 to 11 of the first judgment state that, on 24 September 2021, members of An Garda Síochána executed, at the appellant's business premises and at her home, search warrants that the District Court had issued pursuant to s. 26 of the Act of 1977. The items seized during the course of the search of the business premises included CBD oils. The appellant does not contest that THC is a psychoactive substance and that some of the CBD oils she exposed for sale may contain traces of THC. The appellant was thereafter charged with a number of offences under the Act of 1977, the hearing of which has since been adjourned from time to time.

6 . Paragraph 6 of the first judgment states that “ [t]he 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.” Two issues arise from these facts.

7 . Notwithstanding the very thin evidential basis the appellant laid as to her engagement in trade between Member States as would entitle her to invoke Arts. 34 and 35 of the Treaty on the Functioning of the European Union (hereafter ‘TFEU’), which provisions guarantee...