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Saturday 16 December 2017

Airman wins case over 'passive' cannabis smoke

Tim Healy

AN airman has won an appeal over his discharge from the Defence Forces after he tested positive for cannabis use, which he said was the result of passive smoking while travelling in a car with friends.

The Supreme Court yesterday granted the appeal by airman David Rawson (25) against the order for his discharge made in 2007. The discharge has been on hold pending the outcome and he has been on administrative duties in the interim.

In allowing the appeal, the Supreme Court said it was for the Defence Forces authorities to decide whether the issues raised by Mr Rawson's positive drug tests "could, or should, be considered again".

Mr Rawson, of Carrow Road, Drimnagh, Dublin, had sought to quash the discharge in judicial review proceedings. When the High Court rejected his case in 2008, he appealed to the Supreme Court.

He had denied smoking cannabis and also argued he was given no opportunity, prior to his discharge being recommended, to call evidence in relation to the possibility of a false-positive test from passive smoking.

The court heard compulsory random drug testing was introduced in the Defence Forces in 2002. Mr Rawson joined as a recruit on September 4, 2006, and underwent training at the Military Training School, Casement Aerodrome, Baldonnel.

He was subject to a random compulsory test in November 2006 and tested positive. He was notified he had tested positive on December 11 and subsequently advised he was liable for discharge.

On January 26, 2007, the general officer commanding decided he should be discharged.

In dismissing his High Court challenge, Mr Justice John Hedigan said the Army correctly allows a low-level cut-off to provide for passive smoking.

In Mr Rawson's case, the test reading was more than double that cut-off point, he noted, but Mr Rawson said this was due to the presence in his car of friends smoking cannabis.

The judge said he believed there were ample grounds for the decision to discharge Mr Rawson. Giving the Supreme Court's judgment yesterday overturning that decision, Mr Justice Frank Clarke said the real issue was whether, when deciding if Mr Rawson should be discharged, the ultimate decision maker asked himself the right question as he was required to do under army regulations on drug testing.

Because Mr Rawson had raised the possibility of innocent or inadvertent inhalation of cannabis, he had created a situation where the army authorities had to determine whether there was a reasonable doubt.

Proof

The issue of the standard of proof was of great importance, the judge said. Once the issue of innocent/inadvertent inhalation was raised, the matter must be determined on the basis of proof beyond reasonable doubt.

Nothing in the evidence before the court provided any indication as to the basis for the decision to discharge.

It was possible the decision maker did not believe Mr Rawson or considered his defence did not bring him within the innocent or inadvertent category but the problem was there was no evidence to that effect.

The High Court judge had erred in engaging in a hypothesis about the basis on which the relevant army superior officers approached this matter, Mr Justice Clarke said.

Irish Independent

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