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Scheduling of Cannabis Incorrect?

  • 11-12-2019 07:41PM
    #1
    dublinbando
    Registered Users, Registered Users 2 Posts: 185 ✭✭


    So cannabis has been legalized for medical use under a pilot program. Yet it remains a schedule 1 drug.

    The definition of schedule 1 from wikipedia:
    "The substances (and certain derivatives thereof) considered by the state to have no medicinal or scientific value with consideration given regarding their likelihood of their being abused and thus would be considered illegal drugs."

    So the fact that it is currently legal and being prescribed as a medicinal product, would this not contradict it's schedule 1 status? Would this not have legal ramifications for criminal proceedings involving cannabis?


«13

Comments

  • #2
    GM228
    Registered Users, Registered Users 2 Posts: 8,917 ✭✭✭GM228


    dublinbando wrote: »
    So cannabis has been legalized for medical use under a pilot program. Yet it remains a schedule 1 drug.

    The definition of schedule 1 from wikipedia:
    "The substances (and certain derivatives thereof) considered by the state to have no medicinal or scientific value with consideration given regarding their likelihood of their being abused and thus would be considered illegal drugs."

    So the fact that it is currently legal and being prescribed as a medicinal product, would this not contradict it's schedule 1 status? Would this not have legal ramifications for criminal proceedings involving cannabis?

    Canabis prescribed for medical purposes has not been a Schedule 1 drug since 24th June 2019 to coincide with the introduction of the Misuse Of Drugs (Prescription And Control Of Supply Of Cannabis For Medical Use) Regulations 2019 two days later.

    Also to note is that the "definition" provided for by Wikipedia is not a legal definition for the Schedule 1 drugs in Ireland, there is no such legal definition in the state. Rather we have "controlled drugs" and restrictions on their possession, canabis is a controlled drug, but the restrictions on possession does not apply when for authorised medical use.


  • #3
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    There was some news recently, last week, that the Italian Supreme Court had said that cannabis possesion in some circumstances is ok.

    In Ireland it's unlawful to drive if over a certain concentration of cannabis but not if the cannabis has been prescribed lawfully. That doesn't make sense as the the person is still impaired and they shouldn't be allowed to drive.


  • #4
    Victor
    Registered Users, Registered Users 2 Posts: 78,752 ✭✭✭✭Victor


    While perhaps that is something to be looked at, driving impaired is an offence anyway regarless of the mechanism of impairment, e.g. over-the-counter or prescription medication, overtiredness, distraction.


  • #5
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    There was some news recently, last week, that the Italian Supreme Court had said that cannabis possesion in some circumstances is ok.

    In Ireland it's unlawful to drive if over a certain concentration of cannabis but not if the cannabis has been prescribed lawfully. That doesn't make sense as the the person is still impaired and they shouldn't be allowed to drive.

    do you have a cite for that?


  • #6
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    This link
    w w w irishstatutebook ie/eli/2016/act/21/section/8/enacted/en/html

    gives the information and limits, and the driving exemption for medically prescribed cannabis.

    The schedule at the bottom shows the drugs and the limits.


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  • #7
    GM228
    Registered Users, Registered Users 2 Posts: 8,917 ✭✭✭GM228


    ghost of ireland past wrote: »
    There was some news recently, last week, that the Italian Supreme Court had said that cannabis possesion in some circumstances is ok.

    In Ireland it's unlawful to drive if over a certain concentration of cannabis but not if the cannabis has been prescribed lawfully. That doesn't make sense as the the person is still impaired and they shouldn't be allowed to drive.
    ghost of ireland past wrote: »
    This link
    w w w irishstatutebook ie/eli/2016/act/21/section/8/enacted/en/html

    gives the information and limits, and the driving exemption for medically prescribed cannabis.

    The schedule at the bottom shows the drugs and the limits.

    This area causes a lot of confusion for people.

    The first thing to note is that S4(1A) of the Road Traffic Act 2010 creates a prohibition on driving with drugs in your system over a certain limit within 3 hours after so driving or attempting to drive unless you hold a medical exemption certificate, however it is a prohibition simpliciter which has nothing to do with impairment.

    Impaired driving, or rather driving under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle under S4(1) is not subject to the same exemption.

    The exemption is qualified in that it will always be subject to not being mpaired due to S4(1). In other words you can have drugs in your system which are under the limit, or drugs in your system whilst exempt but still be prosecuted for impaired driving, the same applies (and always has to) alcohol for example.

    We had a good discussion on it previously here.


  • #8
    Fonny122
    Registered Users, Registered Users 2 Posts: 111 ✭✭Fonny122


    They really should just go about legalising it full stop. The only logical thing I can see stopping the government is cynically looking at older voters who might treat it as a single issue on an election front to be honest. Canada had had it legal for well over a year now, and some US states for several years, and from what I can tell they have not burned to the ground (but have had a noticeable economic bump in many instances).

    Our kids are going to look back at this the same way we look at prohibition in the USA.


  • #9
    meathstevie
    Registered Users, Registered Users 2 Posts: 4,777 ✭✭✭meathstevie


    ghost of ireland past wrote: »
    This link
    w w w irishstatutebook ie/eli/2016/act/21/section/8/enacted/en/html

    gives the information and limits, and the driving exemption for medically prescribed cannabis.

    The schedule at the bottom shows the drugs and the limits.

    It very simple, driving while unfit due to any intoxicants is illegal.

    Unfit has no defined limit, being physically unfit due to intoxicant use is the clue to the whole affair.

    If a driver is staggering, slurring speech, unable to concentrate etc etc the driver is unfit and committing an offence.

    Out of all the intoxicants available for misuse there’s only a few with prescribed limits for which there is the specific offence of driving while being above that limit.


  • #10
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    One relevant point is, does cannabis always cause impairment in all users and if not, should there be a limit at all?


    If a person has used cannabis, and is above the limit, (and has no prescription) then they are guilty of impaired driving, even if they are not impaired.

    That fact is enshrined in the law in that a person who has been lawfully prescribed the cannabis is allowed to drive whereas the person who hasn't been prescribed the cannabis is assumed to be impaired and therefore guilty.
    Having a prescription does not mean you are immune from impairment.


    A person is not exempt from drink driving if the alcohol has been prescribed by a doctor, why would they be, they would still be impaired.



    The dafualt position with cannabis should be that if you exceed a certain amount then everyone is banned from driving, unless the doctor has stated in writing that their client is not impaired by cannabis use.

    Why are the legislators so sure that prescribed cannabis does not cause impairment that they have provided an exemption in law for prescribed cannabis?


    I understand the point that impairment can still be proved in these cases but what is a practical method of proving impairment when objective methods like blood tests cannot be used?


  • #11
    GM228
    Registered Users, Registered Users 2 Posts: 8,917 ✭✭✭GM228


    ghost of ireland past wrote: »
    One relevant point is, does cannabis always cause impairment in all users and if not, should there be a limit at all?


    If a person has used cannabis, and is above the limit, (and has no prescription) then they are guilty of impaired driving, even if they are not impaired.

    That fact is enshrined in the law in that a person who has been lawfully prescribed the cannabis is allowed to drive whereas the person who hasn't been prescribed the cannabis is assumed to be impaired and therefore guilty.
    Having a prescription does not mean you are immune from impairment.


    A person is not exempt from drink driving if the alcohol has been prescribed by a doctor, why would they be, they would still be impaired.



    The dafualt position with cannabis should be that if you exceed a certain amount then everyone is banned from driving, unless the doctor has stated in writing that their client is not impaired by cannabis use.

    Why are the legislators so sure that prescribed cannabis does not cause impairment that they have provided an exemption in law for prescribed cannabis?


    I understand the point that impairment can still be proved in these cases but what is a practical method of proving impairment when objective methods like blood tests cannot be used?

    A person who drives with canabis above the limit is neither presumed to be impaired nor found guilty of such.

    And the comparison to alcohol is a non argument as alcohol is not prescribed for medicinal purposes.

    Legislators are not sure or even suggesting canabis does not cause impairment, that's why they have not made any exemption to the impairment provisions.

    The exemption for medical use is still qualified by being not impaired.


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  • #12
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    It is an offence as far as I can see, to drive with cannabis in your body above the limits, unless that cannabis has been prescribed.

    This link
    http://www.irishstatutebook.ie/eli/2016/act/21/section/8/enacted/en/html
    says that.


    Section 1A says '... a person shall not drive or attempt to drive ... [while using cannabis]'

    Section 1B exempts persons who have used cannabis from the above prohibition if the cannabis has been presribed by a doctor.

    The question is why is there an exemption for prescribed cannabis?
    The person is still under the influence and the prescrition does not help that.



    My comparision with alcohol is valid.
    Alcohol is prescribed by doctors in very limited circumstances.
    methanol poisioning.

    There are no exemptions in drunk driving legislation for lawfully prescribed alcohol but there is an explicit exemption for lawfully prescribed cannabis.


  • #13
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    It is an offence as far as I can see, to drive with cannabis in your body above the limits, unless that cannabis has been prescribed.

    This link
    http://www.irishstatutebook.ie/eli/2016/act/21/section/8/enacted/en/html
    says that.


    Section 1A says '... a person shall not drive or attempt to drive ... [while using cannabis]'

    Section 1B exempts persons who have used cannabis from the above prohibition if the cannabis has been presribed by a doctor.

    The question is why is there an exemption for prescribed cannabis?
    The person is still under the influence and the prescrition does not help that.



    My comparision with alcohol is valid.
    Alcohol is prescribed by doctors in very limited circumstances.
    methanol poisioning.

    There are no exemptions in drunk driving legislation for lawfully prescribed alcohol but there is an explicit exemption for lawfully prescribed cannabis.

    To be fair that has already been explained to you. There are two distinct offences. One is having an intoxicant above a prescribed limit. the other is driving while impaired due to an intoxicant. the exemption only applies to the first offence. If a person is above the prescribed limit for cannabis but has a medical exemption they have not committed an offence. If, however, their driving is impaired by cannabis then their exemption is irrelevant.


  • #14
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    People are not addressing the point I'm raising.

    If cannabis use impairs driving then why is there an exemption for prescribed cannabis?

    Does prescribed cannabis not cause impairment?

    Does the prescription prevent people from becoming impaired?
    If not, then it is reckless to provide an exemption.


    In practical terms, how can the gardai prove impairment in these cases, if the person is impaired, if the gardai cannot rely on the mere fact that the person has consumed drugs above a certain limit?

    The person can admit being under the influence of cannabis, but they can rely on their prescription and they can deny being impaired.

    I don't think that Gardai can prove impairment in those cases.

    If cannabis use impairs driving then there shoudln't be any exemptions.


  • #15
    [Deleted User]
    Posts: 8,350 ✭✭✭ [Deleted User]


    ghost of ireland past wrote: »
    People are not addressing the point I'm raising.

    If cannabis use impairs driving then why is there an exemption for prescribed cannabis?

    Does prescribed cannabis not cause impairment?

    Does the prescription prevent people from becoming impaired?
    If not, then it is reckless to provide an exemption.


    In practical terms, how can the gardai prove impairment in these cases, if the person is impaired, if the gardai cannot rely on the mere fact that the person has consumed drugs above a certain limit?

    The person can admit being under the influence of cannabis, but they can rely on their prescription and they can deny being impaired.

    I don't think that Gardai can prove impairment in those cases.

    If cannabis use impairs driving then there shoudln't be any exemptions.

    Only two products are available in Ireland, one has no THC and other has a ratio of CBD:THC of 20:1. Unlikely to cause impairment.


  • #16
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    People are not addressing the point I'm raising.

    If cannabis use impairs driving then why is there an exemption for prescribed cannabis?

    Does prescribed cannabis not cause impairment?

    Does the prescription prevent people from becoming impaired?
    If not, then it is reckless to provide an exemption.


    In practical terms, how can the gardai prove impairment in these cases, if the person is impaired, if the gardai cannot rely on the mere fact that the person has consumed drugs above a certain limit?

    The person can admit being under the influence of cannabis, but they can rely on their prescription and they can deny being impaired.

    I don't think that Gardai can prove impairment in those cases.

    If cannabis use impairs driving then there shoudln't be any exemptions.

    the section of the act you keep posting makes no mention of impairment. Impairment is irrelevant to this section.

    http://www.irishstatutebook.ie/eli/2016/act/21/section/12/enacted/en/html#sec12

    they can deny being impaired all they like. they dont get to decide if they are impaired. the garda makes that decision using the prescribed impairment test.


  • #17
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    If a person has used cannabis over certain limits that person can be arrested, with no proof of impairment required, under Section 4 (2) of RTA 2010.
    If the limits for cannabis are like alcohol (strict liability) then there is no defence possible. You cannot raise the defence that you were unimpaired. Being over the limit is sufficient for sucessful prosecution.

    There is an assumption in the law that you are impaired if you are over limits which is unfair. However, this presumption does not apply if you have a prescription.
    It seems that the government is content to allow potentially impaired drivers to drive if they have a prescription.


    OhnonotGmail's link is interesting.
    http://www.irishstatutebook.ie/eli/2016/act/21/section/12/enacted/en/html#sec12
    This legislation allows for impairment tests which sound like American style sobriety tests.


    Have the impairment tests been specified by the Minister?

    As per the link.
    (4) For the purposes of subsections (1) and (2) the Minister may prescribe—

    (a) the kinds of impairment tests that may be required to be performed,

    (b) the manner in which such a test may be administered,


    I have looked but I can't find these impairment tests themselves.


    What are these impairment tests?
    Have they been specified by the Minister?
    Are they like American tests?
    Are they fair?

    Can you say the alphabet backwards when sober?



    Impairment is complicated.
    A person could be impaired by lack of sleep and there is no objective test for that.
    A conviction for impairment due to lack of sleep would be very difficult to prove in court.
    Can it be done?
    Has it ever been done?


  • #18
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    If a person has used cannabis over certain limits that person can be arrested, with no proof of impairment required, under Section 4 (2) of RTA 2010.

    Correct
    ghost of ireland past wrote: »
    If the limits for cannabis are like alcohol (strict liability) then there is no defence possible. You cannot raise the defence that you were unimpaired. Being over the limit is sufficient for sucessful prosecution.

    The only defence available is that you were prescribed the cannabis by a doctor.
    ghost of ireland past wrote: »
    There is an assumption in the law that you are impaired if you are over limits which is unfair. However, this presumption does not apply if you have a prescription.
    It seems that the government is content to allow potentially impaired drivers to drive if they have a prescription.

    Can you tell me where that assumption is specified? i cannot see anything in the legislation that supports the existence of that assumption. Being over the limit and being impaired are two separate offences. It is possible to be guilty of one but not the other.


  • #19
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    My language was perhaps imprecise but when I said people were assumed to be impaired I meant that people could be convicted without any further evidence being required, and with no defence being possible.

    A more precise description might be that people wil be convicted of what appears to be impaired driving, but at no point is impairment proved, or assumed, .. the person is convicted based solely on being in excesss of certain limits, and they are convicted even if they are not impaired. Impairment doesn't come into it if you are over certain limits.


    Those convictions may well be unsafe.

    I accept there is no explicit assumption of impairment but why is the person being convicted if they are not impaired?
    It seems that there is in fact an assumption of impairment, even if that assumption is not explicitily stated.


    Impairment is a very difficult thing.
    Old age and infirmity also impairs driving but when should the Gardai step in there?


  • #20
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    My language was perhaps imprecise but when I said people were assumed to be impaired I meant that people could be convicted without any further evidence being required, and with no defence being possible.

    A more precise description might be that people wil be convicted of what appears to be impaired driving, but at no point is impairment proved, or assumed, .. the person is convicted based solely on being in excesss of certain limits, and they are convicted even if they are not impaired. Impairment doesn't come into it if you are over certain limits.


    Those convictions may well be unsafe.

    I accept there is no explicit assumption of impairment but why is the person being convicted if they are not impaired?
    It seems that there is in fact an assumption of impairment, even if that assumption is not explicitily stated.


    Impairment is a very difficult thing.
    Old age and infirmity also impairs driving but when should the Gardai step in there?

    you really haven't read any replies that others have written. this has all been explained to you.


  • #21
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    I also mentioned earlier that a senior court in Italy has ruled that personal possession of some cannabis plants in your private residence is not unlawful.

    They haven't explained their rationale but I think there will be a written explanation in a few weeks or months.

    There is very little info on this but one article I read said that in Italy small amounts of cannabis possesion is illegal but it is not enforced and you are not charged in most cases. However, if one or two plants are found at your house then you are assumed to be in possession for the purpose of sale or supply. I think it is that presumption which has been struck down.


    The ECHR guarantees people a right to a private life inside their own home and it is possible that a court would conclude that that right must include the right to cultivate and use cannabis. It doesn't affect anyone else and there are no victims.


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  • #22
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    I also mentioned earlier that a senior court in Italy has ruled that personal possession of some cannabis plants in your private residence is not unlawful.

    They haven't explained their rationale but I think there will be a written explanation in a few weeks or months.

    There is very little info on this but one article I read said that in Italy small amounts of cannabis possesion is illegal but it is not enforced and you are not charged in most cases. However, if one or two plants are found at your house then you are assumed to be in possession for the purpose of sale or supply. I think it is that presumption which has been struck down.


    The ECHR guarantees people a right to a private life inside their own home and it is possible that a court would conclude that that right must include the right to cultivate and use cannabis. It doesn't affect anyone else and there are no victims.
    none of this has any relevance to our road traffic legislation.


  • #23
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    This thread is in legal discussion and the opening post is about the incorrect scheduling of cannabis.


  • #24
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    ghost of ireland past wrote: »
    This thread is in legal discussion and the opening post is about the incorrect scheduling of cannabis.

    indeed it is. your OP quoted wikipedia which has no legal effect in ireland.


  • #25
    Victor
    Registered Users, Registered Users 2 Posts: 78,752 ✭✭✭✭Victor


    ghost of ireland past wrote: »
    A more precise description might be that people wil be convicted of what appears to be impaired driving, but at no point is impairment proved, or assumed, .. the person is convicted based solely on being in excesss of certain limits, and they are convicted even if they are not impaired.
    It's a strict liability offence https://en.wikipedia.org/wiki/Strict_liability_(criminal) the Oireachtas has decided that anyone with more than X of Y substance has committed an offence. There are many strict liability offences which are prosecuted every day.

    You may feel people are being caught on a technicality. Well the law is technical.


  • #26
    GM228
    Registered Users, Registered Users 2 Posts: 8,917 ✭✭✭GM228


    ghost of ireland past wrote: »
    Have the impairment tests been specified by the Minister?

    http://www.irishstatutebook.ie/eli/2014/si/534/made/en/print


  • #27
    ohnonotgmail
    Registered Users, Registered Users 2 Posts: 40,976 ✭✭✭✭ohnonotgmail


    GM228 wrote: »
    http://www.irishstatutebook.ie/eli/2014/si/534/made/en/print

    so basically the same as the tests you see on american police documentaries?


  • #28
    GM228
    Registered Users, Registered Users 2 Posts: 8,917 ✭✭✭GM228


    ghost of ireland past wrote: »
    The ECHR guarantees people a right to a private life inside their own home and it is possible that a court would conclude that that right must include the right to cultivate and use cannabis. It doesn't affect anyone else and there are no victims.

    Article 8 claims have previously been made to the ECtHR in relation to the use of cannabis at home (and for medical reasons), in the latest one, the A.M. and A.K.vs Hungary Cases 21320/15 and 35837/15 4th April 2017 case, the ECtHR dismissed it.


  • #29
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    GM228 wrote: »
    Article 8 claims have previously been made to the ECtHR in relation to the use of cannabis at home (and for medical reasons), in the latest one, the A.M. and A.K.vs Hungary Cases 21320/15 and 35837/15 4th April 2017 case, the ECtHR dismissed it.

    Thank you for the info.

    I could only find this document.
    https://www.echr.coe.int/Documents/FS_Health_ENG.pdf

    It says.
    Factsheet–Health
    Cannabis-based medication
    A.M. and A.K. c. Hongrie (nos. 21320/15 and 35837/15)
    4 April 2017 (decision on the admissibility)
    The applicants, who both had serious health conditions which they submitted could be alleviated by cannabis-based medication, complained under Article 8 of the Convention that domestic legislation providing a legal avenue for requesting individual permission to import such medication lacked legal certainty.



    That doesn't seem to be the same right that I am asserting. I am asserting that people have a right to a private life, as guaranteed by Article 8, ECHR, and that right must include a right to cultivate cannabis and to consume it.


    Those people in Hungary appear to have been asserting some other right.


  • #30
    GM228
    Registered Users, Registered Users 2 Posts: 8,917 ✭✭✭GM228


    ghost of ireland past wrote: »
    Thank you for the info.

    I could only find this document.
    https://www.echr.coe.int/Documents/FS_Health_ENG.pdf

    It says.
    Factsheet–Health
    Cannabis-based medication
    A.M. and A.K. c. Hongrie (nos. 21320/15 and 35837/15)
    4 April 2017 (decision on the admissibility)
    The applicants, who both had serious health conditions which they submitted could be alleviated by cannabis-based medication, complained under Article 8 of the Convention that domestic legislation providing a legal avenue for requesting individual permission to import such medication lacked legal certainty.



    That doesn't seem to be the same right that I am asserting. I am asserting that people have a right to a private life, as guaranteed by Article 8, ECHR, and that right must include a right to cultivate cannabis and to consume it.


    Those people in Hungary appear to have been asserting some other right.

    It's an Article 8 claim you are trying to raise, it's been made unsuccessfully many times in many countries.

    It is also recognised that drugs can be controlled in International Law under the United Nations Convention on psychotropic substances 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.

    You need to remember that "rights" under the ECHR are not absolute and subject to legitimate restrictions and the 1988 agreement actually specifically requires member states to make personal cultivation a criminal offence.


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  • #31
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    Have any cases made their way to the ECHR itself?

    Why is it necessary that cannabis be banned from people's private lives?

    Article 8 requires that any laws prohibiting or curtailing aspects of peoples private lives must be necessary in a democratic society, and banning cannabis is not necessary, as proven by some democracies around the world where cannabis is legal.


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