The High Court has refused applications by three prisoners for immediate release after a Court of Appeal ruling invalidated the legal basis for certain drug classifications. President of the High Court Kearns held that the applicants had not shown exceptional circumstances allowing them to avoid the effect of their concluded criminal cases.
The applications were brought under Article 40.4.2 of the Constitution, which permits the High Court to order release where detention is unlawful. The applicants had pleaded guilty to drug offences and were serving sentences for possession or supply of substances classified as controlled drugs under regulations made using section 2(2) of the Misuse of Drugs Act 1977.
In March 2015, the Court of Appeal in *Bederev v Ireland* declared section 2(2) unconstitutional because it allowed the Government to make law without sufficient principles and policies set by the Oireachtas. The decision invalidated regulations made under that section, including orders covering substances involved in the three cases.
The applicants argued that the ruling meant the substances were not legally controlled when they were convicted and sentenced, so there was no lawful basis for their continued detention. They said their cases were exceptional because the offences concerned substances whose prohibition depended on government orders, rather than conduct inherently criminal.
The respondents relied on the Supreme Court’s decision in *A v Governor of Arbour Hill Prison*. Under the general rule set out in that case, a final conviction remains lawful despite a later declaration that the relevant legislation was unconstitutional, subject to possible exceptions in wholly exceptional circumstances. The respondents also pointed to the applicants’ guilty pleas and the absence of evidence that they had suffered actual injustice or oppression.
Kearns held that the first and second applicants, Keith Willis and Anthony Murphy, did not come within an exception and refused their applications. Willis was serving a sentence for an offence involving MDMA; Murphy’s case concerned a synthetic cannabinoid.
The court also rejected Joseph Carberry’s application. He argued that his appeal remained outstanding because he had lodged a notice of appeal and sought an extension of time. The court found that no valid appeal was in existence: the application to extend time had not brought an appeal into being, and no further step had been taken. It therefore refused to treat his case as unconcluded.
The court’s decision concerned the legality of continued detention under Article 40. It did not quash the applicants’ convictions or reopen their sentences. Kearns noted that the effects of declarations of unconstitutionality on Article 40 applications would benefit from further appellate clarification.