The High Court has dismissed a former Defence Forces private’s challenge to his discharge after positive tests for a cocaine metabolite, finding no basis to quash the decision.
In a judgment delivered on 3 February 2016, Mr Justice Noonan rejected the application for judicial review brought by Christopher Maher against the Minister for Defence, the Attorney General and Ireland. The challenge concerned a decision by the General Officer Commanding (GOC) on 6 January 2014 to discharge him. He was discharged on 1 April 2014.
Maher’s urine sample was divided into two parts after a compulsory random drug test on 25 March 2013. The first test reported benzoylecgonine at 150ng/ml, the threshold for a positive result; a second laboratory reported 179ng/ml. Maher denied knowingly taking cocaine and offered to undergo targeted drug testing. He said he had attended a house party the night before the test and later learned drugs were present.
An expert retained by Maher questioned aspects of the testing and raised possible explanations including accidental or malicious exposure. The court recounted that the expert later accepted that most of his concerns had been answered, while continuing to question the absence of creatinine testing. The Defence Forces’ laboratory contact said creatinine results were normal and disputed the expert’s analysis. The judge also noted that the expert’s later concern about possible over-reporting appeared inconsistent with his earlier comments, and that no affidavit from the expert supported the allegations made in the proceedings.
Maher argued that decision-makers had failed to consider his offer of targeted testing, that he had not had a fair opportunity to respond to laboratory comments shortly before the Appeals Officer made a recommendation, and that a technical concern about the test results remained unanswered.
The judge found that the commanding officer, Appeals Officer and GOC had considered targeted testing as one of the available options. He also rejected the complaint about the response period, noting that Maher’s solicitors did not seek more time and that he did not raise the alleged lack of time in later representations to the Defence Forces authorities.
The court concluded that the positive tests established the disciplinary breach and that the decision-makers were entitled to reject Maher’s account of accidental or malicious exposure as not credible. It found no irrationality, failure to consider relevant matters or procedural unfairness. The court dismissed the judicial review application; it did not quash the discharge decision.