The High Court ruled that a prosecution over alleged Botox supply and marketing offences could seek to prove its case using an analysis report from manufacturer Ipsen and a statement given voluntarily under caution to an authorised officer. It answered “yes” to both questions referred by the Dublin Metropolitan District Court, but did not decide whether the evidence would ultimately be admitted or whether the defendant was guilty.
The case concerns allegations that Anne Rossi, a state-registered nurse who ran a beauty clinic in Clontarf, supplied Dysport, a prescription-only product containing Botulinum Toxin A, without the required prescriptions. The alleged offences took place between November 2014 and February 2015. The Authority seized a box and three vials, one empty, during a search of the clinic on 19 February 2015.
The District Court stated a case asking whether the alleged offences could be proved without the certificate of analysis provided for by the Irish Medicines Board Act, and whether Rossi’s interview admissions were admissible when no statutory questioning power had been invoked. The High Court was told that the Ipsen report described testing carried out at the manufacturer’s laboratory. The District Court’s findings also recorded that the seized material was opened and repackaged before being sent to Ipsen, rather than forwarded in a sealed container as the statutory procedure envisaged.
Mr Justice MacGrath held that the Act’s certificate procedure gives specified analysis evidence a statutory evidential status, but its absence does not necessarily prevent the prosecution from relying on other evidence. He said the Act did not make a certificate the only means of proving an offence, nor did it establish that only the listed analysts could give evidence about testing where the prosecution did not rely on a certificate.
The judge also held that the statement was not automatically inadmissible because the authorised officers had not used the Act’s power to require information. That power, if invoked, would have made a resulting statement inadmissible. The District Court had found that Rossi was cautioned, interviewed voluntarily and free to leave. The High Court said the trial judge must assess whether evidence was voluntary and could be excluded if the circumstances warranted it. It was not satisfied that a person who was not in custody had a right to have a solicitor present.
The ruling leaves important questions for the District Court. The trial judge must decide whether the prosecution proves its case beyond reasonable doubt, including the chain of custody, integrity and analysis of the samples. Any issue about a breach of legal or constitutional rights, and the admissibility of evidence in light of such a breach, remains for that court.