Saturday 22 October 2016

Court dismisses application to release three men jailed for drugs offences

Tim Healy

Published 24/04/2015 | 18:51

Mr Justice Nicholas Kearns
Mr Justice Nicholas Kearns

A BID to secure the release of three men jailed for drugs offences arising out of a recent landmark court decision has failed.

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The President of the High Court, Mr Justice Nicholas Kearns, dismissed applications for the release of the three, serving sentences for possession of certain drugs,  because they claimed the substances they were found with were not legally prohibited at the time they were arrested.

The actions were brought by: Keith Willis,(aged 25), Rossmore Avenue, Ballyfermot, Dublin, jailed for three years for having more than 5,000 ecstasy tablets; Anthony Murphy (43) of Galtymore Road, Drimnagh, Dublin, jailed for five years for possessing €560,000 worth of a synthetic cannabis; and Joseph Carberry (54), Lonsdale Terrace, Ballymun, Dublin, jailed for ten years for possessing the stimulant pentedrone.

All three pleaded guilty in cases dealt with in 2012 and 2013.

Last month, they challenged the validity of their detention arising from a March 10 Court of Appeal decision to strike down as unconstitutional a provision of the Misuse of Drugs Act which made possession of some 100

types of drugs an offence.

The Government rushed in a new law to deal with the decision.

In his judgment on the three men's cases, Mr Justice Kearns dismissed their actions which were brought following the Court of Appeal ruling.

They argued the sections of the Misuse of Drugs Act, which made an offence possession of the drugs they were found with at the time of their arrest, was invalid.

The State argued all three are validly detained.

The Court of Appeal's finding did not operate retrospectively in respect of the legality of their convictions, nor did it render their detention unlawful, it was argued.

Mr Justice Kearns said he was bound by a Supreme Court finding in 2006, known as the A case, which overturned a previous decision by the High Court to order the release of a man who admitted unlawful carnal knowledge of an underage girl after finding the offence was unconstitutional.

That ruling established a number of points including there is neither an expressed or implied principle of retrospective application of unconstitutionality in the constitution.

Cases that have been finally determined on laws later found to be unconstitutional do not have to be set aside, he said.

Once finality has been reached the judicial decision must be deemed valid and lawful, he said.

The judge was satisfied neither Murphy or Willis had shown they come within "the category of exceptions which would render their continues detention unjust."

He rejected an argument on behalf of Carberry that he had an appeal against his conviction in existence.

The judge said it would "an invidious distinction on the flimsiest of pretexts" to hold  Carberry was entitled to different treatment from the other two.

It was relevant all three had pleaded guilty before the criminal courts, he said.

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