NI: NI: PSNI not obligated to return legal highs seized before enactment of Psychoactive Substances Act 2016
The Court of Appeal in Northern Ireland has ruled against a man who had a quantity of 63 tablets known as legal highs seized by the police in 2014 and sought their return under the Police (Northern Ireland) Act 1998.
About this case:
- Judgment:
Delivering the judgment of the three-judge Court of Appeal, Lord Justice Weatherup stated that although the High Court was incorrect to refuse the man’s application on general public policy grounds, returning the tablets would now result in their seizure and disposal by the police under the powers in the Psychoactive Substances Act 2016 and therefore there was no need to interfere with the refusal.
Background
Mr Cain McCarthy sought to appeal the decisions of Judge Smyth in the High Court, and District Judge McNally to refuse his application under section 31 of the Police (Northern Ireland) Act 1998 for the return of a quantity of tablets known as legal highs, lawfully seized by the Police Service of Northern Ireland in January 2014.
In January 2014 Mr McCarthy was stopped and searched pursuant to section 23 of the Misuse of Drugs Act 1971 – he was found to be in possession of 63 tablets and was arrested on suspicion of possession of drugs.
Further analysis of the tablets revealed that they included so-called legal highs not prohibited under the Misuse of Drugs Act and the PPS directed no prosecution.
The issue on appeal was whether on the hearing of applications under section 31 of the Police (Northern Ireland) Act 1998 “for the return of property lawfully seized by police, there are public policy grounds on which the return of the property may be refused and if so what is the scope of such public policy grounds”.
Public policy grounds for refusing the return of the goods
Lord Justice Weatherup stated that the issue for the Court was “whether the return of the goods may be refused under any of the public policy grounds referred to above, namely that it would be unlawful to be in possession or to give up possession or that the return would directly or indirectly assist or encourage the commission of a crime or that the return of the goods would be contrary to the policy of Parliament”.
In relation to goods lawfully seized by police, the Court was satisfied that:
Psychoactive Substances Act 2016
The Court rejected the broad public policy grounds stated by Judge Smyth but noted that when the matter was under consideration by Judge Smyth, the Psychoactive Substances Act 2016 was not on the statute book.
Lord Justice Weatherup stated that the Court has a discretion to refuse the return of seized property in the circumstances set out in paragraph of the judgment, but in Mr McCarthy’s case the Court did not have a discretion to refuse the return of his property on the general public policy grounds relied upon.
That being said, the Court was satisfied that, on the basis of the findings already made by Judge Smyth, the return of the items to Mr McCarthy would result in their seizure and disposal by the police under the powers in the Psychoactive Substances Act 2016.
While recognising that there were no general public policy grounds for refusing the return of the items; in the circumstances where the items would now be liable to seizure and disposal by the police, the Court did not interfere with the Order made by Judge Smyth.