Home > Misuse of Drugs (Amendment) Act 2015.

Connolly, Johnny (2015) Misuse of Drugs (Amendment) Act 2015. Drugnet Ireland, Issue 55, Autumn 2015, pp. 11-12.

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The Misuse of Drugs (Amendment) Act 2015 had to be introduced as emergency legislation after a court struck down a series of regulations introduced over the past two decades banning certain drugs.1 In what the Court of Appeal said was a ‘constitutional issue of far-reaching importance’, the three-judge court unanimously said a regulation making the possession of methylethcathinone illegal was invalid.2 The substance is also known as 4-Mec or Snow Blow. The judgement raises a number of questions about the rationale behind the Misuse of Drugs Act 1977, the principal legislation that underlines drug prohibition in Ireland. In particular, it raises questions about the way in which concepts such as drug harm and drug misuse are defined and incorporated into the criminal law. This article presents an edited version of the judgement.


The State successfully defended the original case in a High Court hearing in March 2014. The matter was then appealed to the Court of Appeal. At issue in the case was the constitutionality of s. 2(2) of the Misuse of Drugs Act 1977. This provision states: ‘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.’ The court held that this section, under which regulations banning numerous substances have been introduced over the past two decades, was unconstitutional because it purported to vest in the Government law-making powers which are in the exclusive authority of the Oireachtas. In doing so, the court decided that this section of the Act failed the ‘principles and policies’ test.3 This test is designed to prevent a Minister or administrative agency from deciding matters that are properly the concern of the Oireachtas (Parliament). Under article 15.2.1 of the Irish Constitution, the sole power of making laws in the state is vested in the Oireachtas.


The original case concerned the 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 denied criminal charges of having the substance for supply in 2012, brought a High Court challenge, seeking to stop his trial by claiming the regulations were unconstitutional. Lawyers for Mr Bederev argued it was not lawful to put this substance on the controlled drug list because there were no principles and policies guiding the introduction of such rules. In particular, it was argued that 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. In May 2014 the High Court rejected this challenge.


On behalf of the Court of Appeal, Mr Justice Gerard Hogan said, given what had been done in relation to the substance in this case, it might also be asked whether it would be open to the Government to employ the same law to ban other types of drugs which are in everyday use and which are potentially harmful and liable to be misused such as alcohol and tobacco. The Court of Appeal considered the evidence of the then Chief Pharmacist at the Department of Health and Children before the High Court. She had explained that drug and pharmaceutical products were ever changing and new products were constantly coming on the market. In these circumstances, ‘it would be cumbrous to insist that any such new drugs or drug products which were dangerous or liable to misuse could only be banned by legislation subsequently enacted by the Oireachtas’ (p.13). While acknowledging this issue, Judge Hogan asked how decisions as to the dangers of drugs or misuse came to be decided. The central question in the appeal was whether the 1977 Act contained sufficient principles and policies to inform such questions (p. 23).


The Court of Appeal looked to the long title of the Act for guidance. This declares the purpose and object of the 1977 Act is ‘to prevent the misuse of certain dangerous or otherwise harmful drugs’ (p. 23). Judge Hogan then listed a series of key questions that he ultimately would conclude were not sufficiently addressed in the Act: 

  • How is it to be determined which of these dangerous or harmful drugs are to be controlled and which are not?
  • How can it be determined which drugs are ‘dangerous’, and to whom?
  • Is this standard to be measured by reference to the general public? Or would it suffice that the drug in question would be dangerous if consumed or used by certain sectors of society such as children or young adults?
  • By what standards are the questions of whether particular drugs are ‘harmful’ and liable to be ‘misused’ to be assessed and determined?
  • What levels of ‘harm’ and ‘misuse’ need to be established before an order could properly be made (p.24)?

Summing up for the Court of Appeal, Judge Hogan stated that the unavoidable conclusion was that s.2.2 purports to vest in the Government what, in the absence of appropriate principles and policies in the legislation itself, ‘are in truth law-making policies’ (p. 30). As a result of the judgement, all substances controlled by means of Government Orders made under s.2(2) of the Misuse of Drugs Act 1977 ceased to be controlled with immediate effect, and their possession ceased to be an offence. These substances included ecstasy, benzodiazepines and new psychoactive substances, so-called ‘headshop drugs’. Following an emergency sitting of the Oireachtas, new legislation was passed and then signed into law by the President within forty-eight hours. (Johnny Connolly)



  1. Misuse of Drugs (Amendment) Act 2015 (No 6 of 2015) Downloaded 6 October 2015 at http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2015/2115/document1.htm
  2. Hogan, Mr Justice Gerard, Court of Appeal (2015, 10 March) Bederev–v-Ireland, The Attorney General and the Director of Public Prosecutions. Dublin: Courts Service. https://www.drugsandalcohol.ie/24355/
  3. Maddox N (2004, 7 January) Legislation by delegation - the principles and policies test in Irish law Irish Law Times (22/293). Available at SSRN: http://ssrn.com/abstract=1532885
Item Type
Publication Type
Irish-related, Article
Drug Type
Substances (not alcohol/tobacco)
Intervention Type
Issue Title
Issue 55, Autumn 2015
October 2015
Page Range
pp. 11-12
Health Research Board
Issue 55, Autumn 2015

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