Government decision in 2010 shut down ‘head shops’ overnight

In May 2010, after a series of incidents involving so-called legal highs, a Fianna Fáil-led coalition moved against the “head shops” that sold them. The government of the day made an order declaring a list of psychoactive drugs to be controlled substances under the 1977 Misuse of Drugs Act. With immediate effect, anyone possessing a range of named substances faced a penalty of up to seven years in prison.

The ban had an instant effect. As soon as the government order was issued, gardaí visited every head shop in the State and requested a list of the substances on sale. Within three weeks, the number of head shops around the country fell from 102 to 36.

Almost two years later, in April 2012, Lithuanian-born Stanislav Bederev was charged under the 1977 Act with the possession and possession with intention to sell a controlled drug. It had been banned by government order in 2011; before that it had been on sale in the shops.

Constitutionality

Mr Bederev, who denied the criminal charges, took a challenge to the constitutionality of a section of the 1977 Act on the grounds that it contravened Article 15.2.1 of the Constitution. That article states: “The sole and exclusive power of making laws for the State is hereby vested in the

Oireachtas

: no other legislative authority has powers to make laws for the State.” Put simply, he argued that the executive had overstepped the mark by banning the substance when that function should have fallen to the Oireachtas.

The High Court dismissed Mr Bederev's claim but he took his case to the Court of Appeal, which agreed with him. In a judgment written by Mr Justice Gerard Hogan (Ms Justice Mary Finlay Geoghegan and Mr Justice Michael Peart agreed), the court said the contested section of the 1977 Act was so broad as to leave the government "more or less at large in determining which substances or products should be declared controlled drugs."

So broad, it remarked, that it might be asked whether it would be open to the government to use the same law to ban other types of drugs that were in everyday use but were liable to be misused, such as alcohol and tobacco.

Laudable

Key terms in the Act – misuse, dangerous and harmful – conveyed desirable objectives, the court said. But they were also very general words. They do not in themselves, Mr Justice Hogan wrote, amount to a sufficient restriction on the more or less unlimited power of regulation invested in the Government by section 2(2) of the Act. It was therefore an unavoidable conclusion that the section purported to invest in the Government what were “in truth law making powers.” As a result, the court found it repugnant to the Constitution.

Now for the fallout. The Government had emergency legislation prepared in case this happened. Ministers believe anyone already convicted under the 1977 Act will not benefit from the Court of Appeal’s decision. They’re probably right. But that’s in all likelihood not true of anyone whose prosecution in relation to any of the substances banned under the relevant section of the Act is working its way through the system. Criminal lawyers believe the number of pending cases likely to be affected is small. But the Director of Public Prosecution’s workload just got a little bit lighter.