Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court grants leave to the Defendants/Applicants to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. This determination concerns an appeal brought by the defendants/appellants (hereinafter referred to as “the State”) seeking leave to appeal from a decision of the Court of Appeal, wherein that court declared s.2(2) of the Misuse of Drugs Act, 1977, and the Misuse of Drugs Act, 1977 (Controlled Drugs) (Declaration) Order, S.I. No. 551/2011, repugnant to Article 15.2.1 of the Constitution and, therefore, invalid.

2. This Court has jurisdiction to hear an appeal from the Court of Appeal, in the circumstances described in Article 34.5.3° of the Constitution, which states:

“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal, if the Supreme Court is satisfied that:

(i) The decision involves a matter of general public importance, or

(ii) In the interests of justice it is necessary that there be an appeal to the Supreme Court.”

4. The constitutional framework established by the Thirty-third Amendment to the Constitution thus requires in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal it has to be demonstrated that either a “matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal to this Court.”

5. The statutory framework for the exercise of the right to appeal to this Court is to be found in the Court of Appeal Act, 2014, and, in particular, in the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.

6. The Constitution has retained the entitlement to have one appeal as a right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined, principally, to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there should be a further appeal to this Court.

7. The respondent herein, Stanislav Bederev, was charged on the 26th April, 2012 with offences under ss.3, 15, and 27 of the Misuse of Drugs Act, 1977 (“the Act”), relating to the possession, and possession with intention to sell, of certain controlled substances. On the 8th October, 2012 the charge sheets were amended, changing the controlled substance for which the charge was applied from mephedrone to methylmethcathinone. The latter substance was defined by the Misuse of Drugs Act, 1977 (Controlled Drugs) (Declaration) Order, 2011 “the Order”, S.I. No. 551 of 2011, as a controlled substance within the meaning of the Act. It had been, prior to the commencement of the Order, a legally available drug, usually sold in “head shops”.

8. The respondent to this application, Mr. Bederev, subsequently brought proceedings by way of plenary summons seeking a declaration that s.2(2) of the Act was invalid, having regard to Article 15 of the Constitution. In the alternative, he also sought a declaration that the Order of 2011 was invalid, having regard to Article 15 of the Constitution, and an injunction restraining the prosecution of the charges against him, in accordance with such declarations. The application was dismissed in the High Court. The respondent appealed, and, in a judgment delivered on the 10th March, 2015, the Court of Appeal held:

(i) That s.2(2) of the Act was framed in such a way as to give the government freedom to make an order under the sub-section, so that it was not constrained by the parameters of existing categories of controlled drugs specified in the Schedule;

(ii) That the fundamental difficulty was that the 1977 Act determined that only “certain” dangerous or harmful drugs would be controlled, thus leaving policy judgments to be made by the government rather than by the Oireachtas;

(iii) That the government was thereby left at large in determining which substances or products should be declared to be controlled drugs, given the breadth of s.2(2) of the 1977 Act; that there was almost no guidance given on which drugs were liable to misuse, such that they should be declared “controlled” by the provisions of the 1977 Act, and that the key words in the long title of the Act (“misuse”, “certain”, “harmful”, “dangerous”) were too general to be sufficient for this purpose.

(iv) That, while terms such as “misuse”, “dangerous” and “harmful”, which are contained in the long title of the Act, represented desirable objectives, they did not, in themselves, constitute a sufficient restriction on the more or less unlimited power of regulation vested in the government by s.2(2) of the 1977 Act, in relation to what “substances, products, or preparations” should be declared to be controlled drugs;

(v) While a power of annulment, such as that retained in s.38(3) of the Act, might be of assistance in considering whether the legislation under challenge violated Article 15.2.1, the presence of such a provision would rarely be decisive consideration. The fact that an order of this kind could subsequently be annulled, was not, in the court’s view, sufficient to save a statutory provision which offended Article 15.2.1.

(vi) That s.2(2) of the 1977 Act purported to vest the government with what, in the absence of appropriate principles and policies set out in the legislation in itself, were, effectively, law making powers.

(vii) That the appeal should be allowed, as a consequence of which that court granted a declaration that s.2(2) of the Misuse of Drugs Act, 1977 was repugnant to Article 15.2.1 of the Constitution, and is, therefore, invalid; and that;

(viii) Having regard to the said finding, the Misuse of Drugs Act, 1977 (Controlled Drugs) (Declaration) Order, 2011 (S.I. No. 551 of 2011, was therefore invalid.

Submissions on behalf of the Respondent

9. In the course of its written submission to oppose the application for leave to appeal, the respondent makes the following points:

(a) That the Court of Appeal delivered a unanimous decision in the case;

(b) That neither the Act, nor the Order, were sufficient to accord with the principles and policies test, identified in Pigs Marketing Board v. Donnelly [1939] I.R. 413; Cityview Press v. Anco [1980] I.R. 381, McGowan v. Labour Court [2013] IESC 21, and Collins v. Minister for Finance [2013] IEHC 530. (c) That there was no significant dispute between the parties in the appeal to the Court of Appeal, as to the correct test; indeed, both parties relied on the same authorities. Accordingly, this is not a case where there were two conflicting views of the law; rather, the law is well settled, and the decision of the Court of Appeal did not change or advance the jurisprudence in any way.

(d) A key issue in the case was whether substances, such as tobacco and alcohol, could be prohibited under s.2 of the Act, as they would be harmful or subject to misuse, and that, although the State sought to contend that these substances would not be the subject of delegated legislation under the section, there could be no distinction drawn, in principle, between those substances and other substances which were controlled substances. On this basis, the section, and the Order made thereunder, could not be otherwise than unconstitutional.

(f) That the Court of Appeal held, correctly, that factors or criteria to determine which type of substances could be controlled by government order should be set out in the primary legislation, if they are to delegate the power to set legislative policy.

(a) That the matter is now moot;

(b) It is not the function of the Supreme Court to give guidance as to how future legislation should be phrased.

(c) That the State’s case is internally contradictory, in that, the State argues that the Court of Appeal erred by finding that the section left important policies to the government, whereas the State also will seek to argue, in the event of an appeal to this Court, that the position of delegated legislation is unclear in law.

(d) That the State cannot argue that s.2 of the Misuse of Drugs Act, 1977 allowed the government to prohibit dangerous substances to meet a pressing social need, while, at the same time, suggesting that the legislation was unclear or did not set policy for the government.

(e) That, without having raised the issue in the High Court, or on appeal, the State now wishes to argue that this Court should set aside Laurentiu v. Minister for Justice [1999] 4 I.R. 26; McGowan v. Labour Court [2013] 2 I.L.R.M. 276; and DPP v. Quilligan (No. 2) [1986] I.R. 495.

(f) That no basis was advanced in the Notice of Application for suggesting why the aforementioned authorities had been incorrectly decided.

(g) That on that basis, the respondent will reserve its position, pending determination as to what matters are to be advanced and canvassed in the appeal.

(h) That it was undesirable that the Supreme Court should take up the matter; the prosecution was initiated in 2012; if successfully, the respondent may be recharged with an offence dating back to that date. The respondent has prosecuted his case on appeal, and it is contended he is entitled to finality.

12. On behalf of the State, it is submitted in the Notice of Application, that the Court of Appeal:

(1) Erred, in finding that the government was more or less at large in determining which substances or products could be declared to be controlled drugs, under s.2(2) of the Misuse of Drugs Act, 1977;

(2) Erred in law in finding that a United Nations Single Convention on Narcotic Drugs, 1961, and the United Nations Convention on Psychotropic Substances, 1971; were irrelevant to the interpretation of the power delegated to the government by s.2(2) of the Misuse of Drugs Act, 1977;

(3) Erred in finding that the Schedule to the Misuse of Drugs Act, 1977 could not be read ejusdem generis, so as to limit the scope of the power under s.2(2) of the Misuse of Drugs Act, 1977;

(4) That s.2(2) of the Misuse of Drugs Act, 1977 left important policy judgements to be made by the Government, rather than by the Oireachtas;

(5) In holding that the objectives of the Misuse of Drugs Act, 1977 were insufficient to restrict the power of regulation contained in s.2(2) of the Act, within the limits permitted by Article 15.2.1 of the Constitution;

(6) In the manner in which it gave consideration to the power of annulment contained in s.38(3) of the Misuse of Drugs Act, 1977, and thereby concluding that this did not save s.2(2) from a finding of unconstitutionality.

(7) The Act of 1977 enjoyed a presumption of constitutionality, and thus it was to be presumed that the power conferred by s.2(2) could only be exercised in a manner that is rational and proportionate;

(8) That it is a principle of statutory interpretation that a court should have regard to the legislative history of the enactment, vis. the Dangerous Drugs Act, 1934, the limitations of that Act in anticipating the evolution of drugs, of misuse, and the adoption internationally of the two United Nations Conventions, to which indirect reference was made in s.20 of the Misuse of Drugs Act, 1977;

(9) That it is a principle of law that words and phrases in statutes are coloured by the surrounding words. In s.2 of the Misuse of Drugs Act, 1977 the phrase “substance, product or preparation” is used in both sub-section 1 and sub-section 2. The Schedule sets out a list of such substances, products or preparations which thereby inform the meaning of “substance, product or preparation”, as used in s.2(2) of the Act.

(10) The policy of the Act of 1977 is to protect the public from dangerous or otherwise harmful drugs. There is no important policy judgement left to the government under s.2(2). The role of the government is to keep the legislation up to date by adding newly recognised drugs of misuse, as they emerge.

(11) That Article 15.2.1 of the Constitution does not preclude the Oireachtas from delegating a power to implement its laws by way of regulation, or from conferring a discretion on a subsidiary body in question, to determine what measures fit within the legislative scheme so enacted. The objectives of the Act of 1977 do not permit the government such a degree of discretion as amounts to a purported delegation of the exclusive law making power of the Oireachtas.

(12) That a power of annulment in an Act is a factor to take into account in determining whether delegated power infringes Article 15.2.1 of the Constitution, and not having first determined that there was a breach of Article 15.2.1. That, in the alternative, s.2(2) of the Misuse of Drugs Act, 1977 does not clearly offend Article 15.2.1.

(13) That the consequences of the Court of Appeal’s decision are far-reaching, that the judgment has impacted a number of pending criminal prosecutions, such that it is in the public interest that an appeal of the Court of Appeal’s judgment be brought and determined expeditiously, and that the judgment of the Court of Appeal has to date given rise to three applications for enquiries, pursuant to Article 40.4.1 of the Constitution into the legality of detention of persons convicted of drugs offences pertaining to substances declared to be controlled under the said mechanism, with consequent costs to the Exchequer. The rejection of these applications in the judgment of Kearns J., delivered on the 24th April, 2015, is now the subject of appeals by two of these applicants. It is thought there may be further such applications pursuant to Article 40.4.1.

Decision

13. The Court is of the view that issues raised herein are matters of general public importance. Inter alia, what is in question is an Act of the Oireachtas, the constitutional status of which is, itself, a matter of general public importance. This applies a fortiori in light of the submissions which are made by the State, not only in response to the particular arguments advanced by the respondent, but also in relation to the more general issue which is sought to be argued relating to the “principles and policies” doctrine.

14. The Court observed that, as a matter of justice, the respondent should be made aware, and should be in a position to address, precisely the nature of the arguments which will be placed before the Court. Accordingly, the Court heard oral submissions in relation to (a) precisely the nature of the case, which the State wishes to argue, in relation to the principles and policies test; (b) whether the State should be entitled to advance arguments, the effect of which might be to set aside previous authorities of this Court, in the absence of grounds being furnished as to why the said authorities were allegedly wrongly decided; (c) in the event that the State is permitted to advance the arguments, the precise basis upon which it will seek to advance its case in relation to the above. Having heard counsel for the parties, the Court is satisfied that the decision of the Court of Appeal involves a matter of general public importance and would grant leave to appeal to this Court. The precise issues, and an issue paper, will be addressed at a directions hearing in the matter.

And it is hereby so ordered accordingly.