Wednesday 13 November 2019

Soldier who tested positive for cocaine challenging dismissal

Tim Healy

A SOLDIER who tested positive for cocaine has brought a legal challenge to prevent his discharge from the Defence Forces.

The High Court action is being brought by Private Christopher Maher, from Co Tipperary, who is stationed in Kilkenny. He tested positive for cocaine following a compulsory random drug test in March 2013.

Pte Maher denies ever taking the drug and says he ingested it accidentally. He says he was at a party, the night before undergoing the drug test, where illegal substances were taken by others.

A urine sample he provided indicated the presence of cocaine as it had a reading of 150ng/ml of benzoylecgonine . Under the Defence Forces regulations, the cut off point for a positive test is 150ng/ml.

Last May, his commanding officer said the only credible reason for the positive test was voluntary consumption of a controlled drug and recommended his discharge from the defence forces.

That decision was appealed. However, last November the officer hearing the appeal  determined that Pte Maher had failed to produce any evidence to substantiate his claim that he had ingested the drug passively or accidentally. He is due to be discharged tomorrow.

Yesterday, his counsel Ross Maguire said it was his his client's case that the appeals officer who heard Pte Mahers case had not taken proper account of a medical report submitted on his behalf.

That report raised issues of concern about the testing process used by the Defence Forces.

The positive test could have resulted from passive  exposure to crack cocaine smoke, and the levels of the controlled substance found in Pte Maher's sample could have been over reported, it was argued.

In proceedings against the Minister for Defence, Ireland and the Attorney General, Pte Maher is seeking an order quashing the decision, taken last January, to discharge him from the army.

He also seeks declarations that the officer who heard his appeal failed to have regard for Maher's submissions, failed to provide him with copies of scientific opinion relied upon, and had regards for matters which he ought not to.

Permission to bring the action was granted yesterday by Mr Justice Michael Peart who also put a stay on his discharged pending the hearing of the case.

It comes back to court in June.

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