Loophole means ecstasy is now legal (but only until tonight)

rick_fantastic

http://www.thejournal.ie/tds-emergency-laws-drugs-1983239-Mar2015/

So, if one was caught years ago with some ecstasy (possession & intent) and got a suspended sentence and criminal record?

would this be grounds for appeal and overturn of conviction? given that at the time of sentencing the drug in question wasn't technically illegal?

nxbyveromdwjpg

Just reading the same thing. Information on this is proving very hard to find (on purpose I'm sure).

What law is it exactly that was deemed unconstitutional (can someone link), how did this come about, was it a case where someone challenged it?, and does this have any affect on past, present or pending cases I wonder?

nxbyveromdwjpg

To answer my own question, the indo article has more info

http://www.independent.ie/irish-news/politics/government-to-rush-through-emergency-legislation-tonight-after-court-strikes-down-law-on-legal-highs-31055110.html

Earlier, a Government regulation declaring illegal a psychoactive substance sold lawfully in “Head Shops” until 2011 was found to be unconstitutional.

In what the Court of Appeal said was a “constitutional issue of far-reach importance”, the three-judge court unanimously said a regulation making the possession of methylethcathinone illegal was invalid.

The court said Section 2(2) of the 1977 Misuse of Drugs Act, under which the regulation was brought in, was unconstitutional because it purports to vest in the Government with law making powers which are in the exclusive authority of the Oireachtas. The State indicated today it may seek to appeal the decision to the Supreme Court on a point of exceptional public importance.

However, on foot of the Court’s decision, the Dail agenda for today has been amended on foot of the judgement and will sit until 11.30pm this evening.

Health Minister Leo Varadkar is to bring the Misuse of Drugs Amendment Bill 2015 to the Dail this evening for a three hour debate. All stages of the bill are to be discussed before a vote is taken.

The bill will then go the Seanad tomorrow morning before being sent to President Michael D Higgins for his signature.

This morning’s case concerned a prosecution of a man for possession of methylethcathinone which was among a number of substances put on the controlled drugs list in 2010.

Stanislav Bederev, who is denying criminal charges of having the substance for supply in 2012, brought a High Court challenge seeking to stop his trial claiming the new regulations were unconstitutional.

Lawyers for Lithuanian-born Mr Bederev argued it was not lawful to put this substance on the controlled drug list because there are no principles and policies guiding the introduction of such rules.

In particular, it was argued by his counsel Sunniva McDonagh, the decision to ban a particular drug was a matter to be considered by the Oireachtas before the relevant government minister could formally initiate the ban.

conorh91

nm wrote: »

What law is it exactly that was deemed unconstitutional (can someone link),

s.2 Control of Drugs Act 1977

(2) 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.

how did this come about

Basically it purports to give unfettered decision making to the Government regarding the prohibition of substances, to the extent that it is an impermissible delegation of the law-making functions of the Oireachtas.

rick_fantastic wrote:

So, if one was caught years ago with some ecstasy (possession & intent) and got a suspended sentence and criminal record?

No effect on them. Their case has been finalized and the conviction stands.

Not sure if ecstasy is definitely a post-1977 addition, I trust the Journal are correct there...

MadYaker

Anyone got a list of all the drugs affected by this?

234

Look at the legislative directory entry here for all the orders made under s.2(2).

Most of the "classic" drugs that people take are covered by s.2(1) as Scheduled to the 1977 Act so these aren't affected. So despite what people tell you esctacy, etc. aren't suddenly legal. It's the more unusual drugs and a lot of the stuff that head shops were selling that are affected. So if you want to go ahead and start downing hydrochloric acid (MISUSE OF DRUGS ACT, 1977 (CONTROLLED DRUGS) (DECLARATION) ORDER, 1993) then go ahead!

Also, there will likely be retrospective effect to any of the legislation passed tonight, so to anybody who is reading, don't think this will be a free-for-all.

hullaballoo

conorh91 wrote: »

No effect on them. Their case has been finalized and the conviction standa.

I might be misunderstanding you but if someone has been convicted of possession of a substance that was scheduled as a result of a s. 2(2) amendment made by the government, are you saying that their convictions are sound?

conorh91

234 wrote: »

Also, there will likely be retrospective effect to any of the legislation passed tonight, so to anybody who is reading, don't think this will be a free-for-all.

Maybe not retrospective effect... but worth noting the Criminal Justice (Psychoactive Substances) Act 2010 still applies.

hullaballoo wrote: »

I might be misunderstanding you but if someone has been convicted of possession of a substance that was scheduled as a result of a s. 2(2) amendment made by the government, are you saying that their convictions are sound?

Provided there is no appeal pending, yes I believe so.

nxbyveromdwjpg

MadYaker wrote: »

Anyone got a list of all the drugs affected by this?

From what I can gather (and I'm no expect), it would relate to drugs NOT listed here:

http://www.irishstatutebook.ie/1977/en/act/pub/0012/sched1.html#sched1

234

nm wrote: »

From what I can gather (and I'm no expect), it would relate to drugs NOT listed here:

http://www.irishstatutebook.ie/1977/en/act/pub/0012/sched1.html#sched1

Exactly, section 2 defines controlled drugs. Section 2(1) does this by reference to the Schedule to the act which covers most of what we think of when we think of drugs.

It's section 2(2) which gives the government the power to enumerate new drugs which are then to be treated as controlled substances. And it is only this provision which seems to have been struck down.

So everything in the Schedule is still illegal.

Anyway, when the Dáil gets around to legislating they will likely just amend the Schedule by inserting all of the drugs that the government has made order for under section 2(2) to maintain the status quo and then create a new procedure for the addition of new drugs.

nxbyveromdwjpg

234 wrote: »

Exactly, section 2 defines controlled drugs. Section 2(1) does this by reference to the Schedule to the act which covers most of what we think of when we think of drugs.

It's section 2(2) which gives the government the power to enumerate new drugs which are then to be treated as controlled substances. And it is only this provision which seems to have been struck down.

So everything in the Schedule is still illegal.

Anyway, when the Dáil gets around to legislating they will likely just amend the Schedule by inserting all of the drugs that the government has made order for under section 2(2) to maintain the status quo and then create a new procedure for the addition of new drugs.

In relation to the OP's question, ecstasy isn't in the original Schedule (or at least I can't find it - methylenedioxy-methamphetamine) so that is affected by this (again, I'm no expert).

How will they work that with on-going accusations or past convictions?

MadYaker

MDMA / ecstasy / yokes / whatever you want to call it isn't on that list. So at the moment I can't be prosecuted for being in possession of it? That's my understanding.

hullaballoo

conorh91 wrote: »

Provided there is no appeal pending, yes I believe so.

Is there a decision I'm unaware of that makes this so?

234

nm wrote: »

In relation to the OP's question, ecstasy isn't in the original Schedule (or at least I can't find it - methylenedioxy-methamphetamine) so that is affected by this (again, I'm no expert).

How will they work that with on-going accusations or past convictions?

Well methamphetamine is included in paragraph 1 and the following is also found in the Schedule:

Any preparation or product containing any proportion of a substance or product specified in paragraph 1, 2, 3 or 4 of this Schedule.

Probably not worth risking it.

conorh91

nm wrote: »

In relation to the OP's question, ecstasy isn't in the original Schedule (or at least I can't find it - methylenedioxy-methamphetamine) so that is affected by this (again, I'm no expert).

Medical Preparations (Control of Amphetamines) Regulations 1970.

To the best of my knowledge Ecstasy is unaffected but some media are reporting otherwise (well, The Journal… for what it's worth)

hullaballoo wrote: »

Is there a decision I'm unaware of that makes this so?

I hope not…!

A v Governor of Arbour Hill Prison [2006] IESC 36 per Murray CJ in A at p 143

'The General Principle'
“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution on any ground that may in law be open to him, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.”

People (DPP) v Cunningham [2012] IECCA 64
In allowing the Appellant to avail of the impugned provision in Damache, Hardiman J said a major point of contrast between Mr A's case and the Appellant was that the Appellant's appeal was still live at the time of the decision in Damache.

People (DPP) v Kavanagh [2012] IECCA 65
Appellant in the instant case was entitled to rely on declaration of unconstitutionality in Damache, but applied tighter criteria; approved Hardiman J's comments in cunningham about cases that had not been finalized.

nxbyveromdwjpg

234 wrote: »

Well methamphetamine is included in paragraph 1 and the following is also found in the Schedule:

That's a different chemical though.

234 wrote: »

Probably not worth risking it.

Not risking anything! Just wondering what ramifications this will have, if any.

conorh91

nm wrote: »

That's a different chemical though.
.

Is the chemical you mention a salt of methamphetamine? if so it should be treated as the same compound.

hullaballoo

conorh91 wrote: »

I hope not…!

Thank you, I suppose it's just semantics but in my mind, a conviction that could be subject to an appeal on constitutionality grounds cannot be regarded as sound, even if it's never challenged.

syklops

But its still illegal for me to buy booze anywhere but a pub after 10pm....

A friend of mine just pointed out. Does this not need to be signed in by the Seanad before it is law? If so, its hardly going to be legal tonight, is it?

villa1979

I got caught with I xtc pill in 2001 got fined 500 pound by the judge 300 for solicitor fees, 6 months of piss samples I had to pay for also and 2 days off work to do a drug treatment course would love to appeal this

Robbo

Judgment is available now.

Rezident

On the day we've had all these winners at Cheltenham! Score.

I have a feeling . . . that tonight's gonna be a good night . . .

234

nm wrote: »

That's a different chemical though.



Not risking anything! Just wondering what ramifications this will have, if any.

MDNA isn't listed in any of the orders which were made under s.2(2) so I'd imagine that it is prosecuted as a derivative of methamphetamine under the Schedule.

So the claims that ecstasy is suddenly legal are false.

bajer101

villa1979 wrote: »

I got caught with I xtc pill in 2001 got fined 500 pound by the judge 300 for solicitor fees, 6 months of piss samples I had to pay for also and 2 days off work to do a drug treatment course would love to appeal this

You may have a case. Varadkar seems to think that some past convictions may be unsafe. I'm still not sure if Ecstasy is effected, even though it is being reported that it is.

http://www.breakingnews.ie/ireland/varadkar-dozens-of-convictions-in-question-after-drug-law-ruling-665896.html

Fred Swanson

This post has been deleted.

234

Robbo wrote: »

Judgment is available now.

Seems pretty watertight in its reasoning. Hard to disagree with Hogan J.

Odds on him filling the next Supreme Court vacancy?

conorh91

Misuse of Drugs (Amendment) Bill 2015
http://www.oireachtas.ie/documents/bills28/bills/2015/2115/b2115d.pdf

Inserts Government orders under s.2(2) of the 1977 Act into the Schedule and re-confirms SIs

Commencement is the day immediately following its passing.

234 wrote: »

Odds on him filling the next Supreme Court vacancy?

High.

Constitutional and admin law books are already bulging under his pen. And he must have a good 15 years or so left on the Bench.

234

conorh91 wrote: »

Misuse of Drugs (Amendment) Bill 2015
http://www.oireachtas.ie/documents/bills28/bills/2015/2115/b2115d.pdf

Inserts Government orders under s.2(2) of the 1977 Act into the Schedule and re-confirms SIs

Commencement is the day immediately following its passing.

High.

Constitutional and admin law books are already bulging under his pen. And he must have a good 15 years or so left on the Bench.

Though it wisely strays away from trying to criminalise acts done during this lacuna period retrospectively.

Robbo

Reading through it, a few observations.

Hogan's mission to make sure that he appears in every second paragraph of Constitutional texts in 25 years times continues unabated.

From a procedural point of view (and having read up on exactly none of the procedure), why did the SC kick it over to the Court of a Appeal when it has generally been fought entirely on Constitutional grounds?

I find the whole Cigs'n'booze reasoning at Paras 64-68 to be slightly specious since they've lived in their own particular legislative "eco-system" long before the MDA 1977 was ever thought of.

As usual, the reporting of this has been dire and the below the line commenting even worse.

234

Robbo wrote: »

I find the whole Cigs'n'booze reasoning at Paras 64-68 to be slightly specious since they've lived in their own particular legislative "eco-system" long before the MDA 1977 was ever thought of.

I was with him on that point.

The 1977 Act would allow their criminalisation. You don't have to interpret the entire corpus of our statutory law in a harmonious manner. The limitation was extraneous to the Act and therefore couldn't supply the necessary principles and policies.

It's not a question of whether criminalisation of alcohol and tobacco under s.2(2) would be in fact legal, but that there is nothing in the section to guide the executive in making the decision to determine whether they could or not. That is what makes the powers too wide.

Fred Swanson

This post has been deleted.

nxbyveromdwjpg

234 wrote: »

MDNA isn't listed in any of the orders which were made under s.2(2)

MDNA I'm talking about MDMA which is known as 'ecstasy'

234 wrote: »

so I'd imagine that it is prosecuted as a derivative of methamphetamine under the Schedule.

So the claims that ecstasy is suddenly legal are false.

In the schedule though it has "derivatives" listed specifically, eg: Cannabinol derivatives, derivatives of lysergamide, morphine derivatives, etc.

I don't see a blanket derivatives reference in the 1977 (can you link?).

I do see it here though in the Control of Amphetamine 1969 act. Does that mean ecstasy should be charged under this, instead of the MDA 77 act?

I presume it's in the 1977 somehow/somewhere but it's not clear to me.

nxbyveromdwjpg

Fred Swanson wrote: »

This post has been deleted.

From thejournal.ie article:

It’s understood that party whips were informed of the potential need for emergency legislation last week but were told it was “highly confidential” until the court ruling was handed down.

234

nm wrote: »

MDNA I'm talking about MDMA which is known as 'ecstasy'



In the schedule though it has "derivatives" listed specifically, eg: Cannabinol derivatives, derivatives of lysergamide, morphine derivatives, etc.

I don't see a blanket derivatives reference in the 1977 (can you link?).

I do see it here though in the Control of Amphetamine 1969 act. Does that mean ecstasy should be charged under this, instead of the MDA 77 act?

I presume it's in the 1977 somehow/somewhere but it's not clear to me.

Apologies on the acronym mix up.

The regulations that you have linked don't create any criminal offence of possession.

As I stated earlier, I would imagine, though I would welcome correction from a criminal practitioner on this, that ecstasy is charged as methamphetamine under the Schedule as it is listed in paragraph 1 and the Schedule is expressed to include:

Any preparation or product containing any proportion of a substance or product specified in paragraph 1, 2, 3 or 4 of this Schedule.

Either way, having read the orders made under s.2(2) and 3,4-methylenedioxy-methamphetamine isn't listed. So whatever legislation criminalises its possession, it hasn't been affected by the Court of Appeal's decision. Feel free to check this yourself as I may have missed it. The orders linked here which are listed a referring to s.2(2) are those affected by today's decision.

nxbyveromdwjpg

234 wrote: »

Apologies on the acronym mix up.

The regulations that you have linked don't create any criminal offence of possession.

As I stated earlier, I would imagine, though I would welcome correction from a criminal practitioner on this, that ecstasy is charged as methamphetamine under the Schedule as it is listed in paragraph 1 and the Schedule is expressed to include:



Either way, having read the orders made under s.2(2) and 3,4-methylenedioxy-methamphetamine isn't listed. So whatever legislation criminalises its possession, it hasn't been affected by the Court of Appeal's decision. Feel free to check this yourself as I may have missed it. The orders linked here which are listed a referring to s.2(2) are those affected by today's decision.

You are probably right as I can't find it listed anywhere else either. It doesn't add up to me though as methamphetamine is no more in MDMA than coca-leaves (which are also listed in 1977) are in Coca-Cola.

What the media are on about is anybodys guess.

234

nm wrote: »

You are probably right as I can't find it listed anywhere else either. It doesn't add up to me though as methamphetamine is no more in MDMA than coca-leaves (which are also listed in 1977) are in Coca-Cola.

What the media are on about is anybodys guess.

Well I'll defer to anybody who knows more about chemistry than me (which is practically everybody).

But re the media, it seems that somebody came up with the ecstasy headline and everybody has been republishing without checking any of the underlying facts.

jh79

MDMA and meth are both phenyl ethyl amines so are chemically related. They have quite similar chemical structures .

Labarbapostiza

jh79 wrote: »

MDMA and meth are both phenyl ethyl amines so are chemically related. They have quite similar chemical structures .

Where the problem is, is the 2011 order. And what that order does is list lots of head shoppy drugs, and also covers variants that are not listed.

What the head shops had been doing, to keep ahead of the law is just slightly changing the chemical composition of the drugs. The 2011 order was a catchall killjoy bill.

Meth-cat, which is what the guy in case had been caught with, was just made illegal under the 2011 order. It's chemically very close to methamphetamine

Meth-cat is legal tonight .....ecstasy isn't. But, I believe mephedrone is legal............which is something you shouldn't knock until you've tried.

jh79

Labarbapostiza wrote: »

Where the problem is, is the 2011 order. And what that order does is list lots of head shoppy drugs, and also covers variants that are not listed.

What the head shops had been doing, to keep ahead of the law is just slightly changing the chemical composition of the drugs. The 2011 order was a catchall killjoy bill.

Meth-cat, which is what the guy in case had been caught with, was just made illegal under the 2011 order. It's chemically very close to methamphetamine

Meth-cat is legal tonight .....ecstasy isn't. But, I believe mephedrone is legal............which is something you shouldn't knock until you've tried.

Ecstasy tablets generally contain MDMA and MDA and like speed and methamphetamine would contain the same core structure of phenylethylamine and would be chemically related.

Mephedrone comes from a different family, the cathinones. The ethyl group has a carbonly functional group attached, so the core structure is different to that of ampethamine type drugs.

BetterThanThou

So, if I'm correct, this bill was viewed as unconstitutional because of the blanket ban, so, in theory, could this mean the return of the headshops? Not that I'd use the majority of the stuff sold in those because it's incredibly dangerous, but would I be correct? As other countries have found out, without a blanket ban, you can't keep up with the head shops.

nxbyveromdwjpg

jh79 wrote: »

Ecstasy tablets generally contain MDMA and MDA and like speed and methamphetamine would contain the same core structure of phenylethylamine and would be chemically related.

Can you see where MDMA and MDA are catered for in this list?

I can't find it but it must be somewhere.

nxbyveromdwjpg

BetterThanThou wrote: »

So, if I'm correct, this bill was viewed as unconstitutional because of the blanket ban, so, in theory, could this mean the return of the headshops? Not that I'd use the majority of the stuff sold in those because it's incredibly dangerous, but would I be correct? As other countries have found out, without a blanket ban, you can't keep up with the head shops.

Probably yea, just like the UK. It's not exactly the end of the world though, the left over sh*t that headshops find they can still sell isn't very popular and it's always shortlived for them too so..

jh79

nm wrote: »

Can you see where MDMA and MDA are catered for in this list?

I can't find it but it must be somewhere.

Don't see MDMA or MDA myself, do they have to match exactly or is ampethamine considered a family in this list?

conorh91

BetterThanThou wrote: »

So, if I'm correct, this bill was viewed as unconstitutional because of the blanket ban

No, the Oireachtas is about to commence exactly the same ban as had been attempted heretofore. In effect, the same prohibitive regime will exist after 12am tonight as was being observed prior to 12am this morning.

I am sure the Government will still be given the authority to deem certain drugs prohibited, in a fashion similar to the impugned sub-section 2, except within tighter limits than previously.

In otther words:

-the bans will come back;
-the Government will still deem certain substances to be illegal;
-the Government may need to seek the approval of the Oireachtas regarding prohibition of certain subatances on a more regular basis in the future.

hullaballoo

BetterThanThou wrote: »

So, if I'm correct, this bill was viewed as unconstitutional because of the blanket ban, so, in theory, could this mean the return of the headshops? Not that I'd use the majority of the stuff sold in those because it's incredibly dangerous, but would I be correct? As other countries have found out, without a blanket ban, you can't keep up with the head shops.

You are incorrect, I'm afraid.

It isn't a bill. It's an Act that was enacted in 1977. The provision (s.2(2)) that was found to be unconstitutional was one allowing the Government to unconstitutionally interfere with the legislative authority of the Oireachtas.

The particular issue here is that the Government tried to rush "emergency" legislation through after there was outcry because Joe Duffy. Rushed law is bad law and all of that. Anyway, Mary Harney updated the Schedule to the 1977 Act under s.2(2) and s.2(2) was challenged by someone who was convicted for possession of one of the drugs Harney added to the schedule.

The reason it's unconstitutional is that the limb of the State that is empowered to make laws is the legislature - in Ireland, that's usually both houses of the Oireachtas. That's to prevent a seizure of power and maintain a democracy (which, in my view, we're doing a fine job of getting rid of at the moment.)

It has nothing to do with blanket bans and a whole lot to do with Joe Duffy.

Labarbapostiza

jh79 wrote: »

Ecstasy tablets generally contain MDMA and MDA and like speed and methamphetamine would contain the same core structure of phenylethylamine and would be chemically related.

Mephedrone comes from a different family, the cathinones. The ethyl group has a carbonly functional group attached, so the core structure is different to that of ampethamine type drugs.

Cat and Meth are similar in that a preparation of Methamphetamine is made through a reduction of Ephedrine, and Methcathinone through an oxidation of Ephedrine. Chemically they're quite close, when compared to MDMA, MDA. I'm not sure if you can synthise Mephedrone from Methcatinione. I don't really know that much about chemistry.

hullaballoo

Also, I'm not sure of this but I suspect s.2(2) has never before or since been used because the Schedule has always been amended by the normal legislative process rather than knee-jerking.

234

hullaballoo wrote: »

Also, I'm not sure of this but I suspect s.2(2) has never before or since been used because the Schedule has always been amended by the normal legislative process rather than knee-jerking.

If you look at the legislative directory entry you can see that there have been nine orders made under the sub-section. While a large proportion of the drugs added were in and around the "Oh God Joe! Isn't it dreadful! The young people! And the head shops! Ah Joe! Isn't it terrible!" period, it's been used relatively consistently since the 1980s and there are plenty of substances added that weren't in reaction to the head shops stuff.

hullaballoo

234 wrote: »

If you look at the legislative directory entry you can see that there have been nine orders made under the sub-section. While a large proportion of the drugs added were in and around the "Oh God Joe! Isn't it dreadful! The young people! And the head shops! Ah Joe! Isn't it terrible!" period, it's been used relatively consistently since the 1980s and there are plenty of substances added that weren't in reaction to the head shops stuff.

I probably should have fact checked first but it was actually quicker to make the point and have it shot down than to poke around in the legislative directory. As it is, I was already beaten to the post by conorh!

jh79

Labarbapostiza wrote: »

Cat and Meth are similar in that a preparation of Methamphetamine is made through a reduction of Ephedrine, and Methcathinone through an oxidation of Ephedrine. Chemically they're quite close, when compared to MDMA, MDA. I'm not sure if you can synthise Mephedrone from Methcatinione. I don't really know that much about chemistry.

I'm an ex- organic chemist so am familiar with the processes involved and have made ampethamines in the past.

MDMA and meth may have different synthetic routes but they both are of the same family .

Mephedrone and M cath come from a different family of drugs.

The chemical reactions used to produce a drug don't define it their structures do.

hullaballoo

Better call Saul.