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northern ireland

NI: NI: PSNI not obligated to return legal highs seized before enactment of Psychoactive Substances Act 2016

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Article Tags:
northern ireland

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.

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About this case:

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:

  1. Applications under article 31 of the Police Property (NI) Order 1998 entitle the District Judge to order delivery of the goods to the owner or, where no owner can be ascertained, to make such order as the District Judge thinks fit. Such proceedings are concerned first of all to establish the ‘ownershipʼ of the goods.

  2. In the alternative the claimant may take civil proceedings against the police in conversion and the Torts (Interference with Goods) Act 1977. Such proceedings are concerned with the right to “possession” of the goods and any such right of the claimant may be defeated by the superior right of another.

  3. There is no general public conscience defence to applications for recovery of goods lawfully seized by police, whether under the statutory claim or the civil claim.

  4. There is a public policy defence to the claims to the extent that –

    1. It would be unlawful for the claimant to be in possession of the goods or it would be unlawful for the police to give up possession of the goods to the claimant (e.g. drugs or weapons without a required prescription or permit),

    2. The return of the goods would directly or indirectly assist or encourage the commission of a crime (e.g. directly, by the goods being the instrument of crime, or indirectly, by facilitating the crime, such as the use of a video to identify a person for criminal purposes),

    3. The return of the goods would be contrary to the policy of Parliament as contained in legislation (e.g. in relation to restrictions on items).

    4. In each case it would be necessary for the police to establish the public policy ground on the balance of probabilities.

    5. Accordingly, the District Judge has a discretion in relation to both limbs of article 31 of the Police (Northern Ireland) Act 1998, namely as to the return of the goods both when the owner has been ascertained and when the owner has not been ascertained.

      6. 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.

      • by Seosamh Gráinséir for Irish Legal News

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