Scheduling of Cannabis Incorrect?

dublinbando

So cannabis has been legalized for medical use under a pilot program. Yet it remains a schedule 1 drug.

The definition of schedule 1 from wikipedia:
"The substances (and certain derivatives thereof) considered by the state to have no medicinal or scientific value with consideration given regarding their likelihood of their being abused and thus would be considered illegal drugs."

So the fact that it is currently legal and being prescribed as a medicinal product, would this not contradict it's schedule 1 status? Would this not have legal ramifications for criminal proceedings involving cannabis?

GM228

dublinbando wrote: »

So cannabis has been legalized for medical use under a pilot program. Yet it remains a schedule 1 drug.

The definition of schedule 1 from wikipedia:
"The substances (and certain derivatives thereof) considered by the state to have no medicinal or scientific value with consideration given regarding their likelihood of their being abused and thus would be considered illegal drugs."

So the fact that it is currently legal and being prescribed as a medicinal product, would this not contradict it's schedule 1 status? Would this not have legal ramifications for criminal proceedings involving cannabis?

Canabis prescribed for medical purposes has not been a Schedule 1 drug since 24th June 2019 to coincide with the introduction of the Misuse Of Drugs (Prescription And Control Of Supply Of Cannabis For Medical Use) Regulations 2019 two days later.

Also to note is that the "definition" provided for by Wikipedia is not a legal definition for the Schedule 1 drugs in Ireland, there is no such legal definition in the state. Rather we have "controlled drugs" and restrictions on their possession, canabis is a controlled drug, but the restrictions on possession does not apply when for authorised medical use.

ghost of ireland past

There was some news recently, last week, that the Italian Supreme Court had said that cannabis possesion in some circumstances is ok.

In Ireland it's unlawful to drive if over a certain concentration of cannabis but not if the cannabis has been prescribed lawfully. That doesn't make sense as the the person is still impaired and they shouldn't be allowed to drive.

Victor

While perhaps that is something to be looked at, driving impaired is an offence anyway regarless of the mechanism of impairment, e.g. over-the-counter or prescription medication, overtiredness, distraction.

ohnonotgmail

ghost of ireland past wrote: »

There was some news recently, last week, that the Italian Supreme Court had said that cannabis possesion in some circumstances is ok.

In Ireland it's unlawful to drive if over a certain concentration of cannabis but not if the cannabis has been prescribed lawfully. That doesn't make sense as the the person is still impaired and they shouldn't be allowed to drive.

do you have a cite for that?

ghost of ireland past

This link
w w w irishstatutebook ie/eli/2016/act/21/section/8/enacted/en/html

gives the information and limits, and the driving exemption for medically prescribed cannabis.

The schedule at the bottom shows the drugs and the limits.

GM228

ghost of ireland past wrote: »

There was some news recently, last week, that the Italian Supreme Court had said that cannabis possesion in some circumstances is ok.

In Ireland it's unlawful to drive if over a certain concentration of cannabis but not if the cannabis has been prescribed lawfully. That doesn't make sense as the the person is still impaired and they shouldn't be allowed to drive.

ghost of ireland past wrote: »

This link
w w w irishstatutebook ie/eli/2016/act/21/section/8/enacted/en/html

gives the information and limits, and the driving exemption for medically prescribed cannabis.

The schedule at the bottom shows the drugs and the limits.

This area causes a lot of confusion for people.

The first thing to note is that S4(1A) of the Road Traffic Act 2010 creates a prohibition on driving with drugs in your system over a certain limit within 3 hours after so driving or attempting to drive unless you hold a medical exemption certificate, however it is a prohibition simpliciter which has nothing to do with impairment.

Impaired driving, or rather driving under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle under S4(1) is not subject to the same exemption.

The exemption is qualified in that it will always be subject to not being mpaired due to S4(1). In other words you can have drugs in your system which are under the limit, or drugs in your system whilst exempt but still be prosecuted for impaired driving, the same applies (and always has to) alcohol for example.

We had a good discussion on it previously here.

Fonny122

They really should just go about legalising it full stop. The only logical thing I can see stopping the government is cynically looking at older voters who might treat it as a single issue on an election front to be honest. Canada had had it legal for well over a year now, and some US states for several years, and from what I can tell they have not burned to the ground (but have had a noticeable economic bump in many instances).

Our kids are going to look back at this the same way we look at prohibition in the USA.

meathstevie

ghost of ireland past wrote: »

This link
w w w irishstatutebook ie/eli/2016/act/21/section/8/enacted/en/html

gives the information and limits, and the driving exemption for medically prescribed cannabis.

The schedule at the bottom shows the drugs and the limits.

It very simple, driving while unfit due to any intoxicants is illegal.

Unfit has no defined limit, being physically unfit due to intoxicant use is the clue to the whole affair.

If a driver is staggering, slurring speech, unable to concentrate etc etc the driver is unfit and committing an offence.

Out of all the intoxicants available for misuse there’s only a few with prescribed limits for which there is the specific offence of driving while being above that limit.

ghost of ireland past

One relevant point is, does cannabis always cause impairment in all users and if not, should there be a limit at all?


If a person has used cannabis, and is above the limit, (and has no prescription) then they are guilty of impaired driving, even if they are not impaired.

That fact is enshrined in the law in that a person who has been lawfully prescribed the cannabis is allowed to drive whereas the person who hasn't been prescribed the cannabis is assumed to be impaired and therefore guilty.
Having a prescription does not mean you are immune from impairment.


A person is not exempt from drink driving if the alcohol has been prescribed by a doctor, why would they be, they would still be impaired.



The dafualt position with cannabis should be that if you exceed a certain amount then everyone is banned from driving, unless the doctor has stated in writing that their client is not impaired by cannabis use.

Why are the legislators so sure that prescribed cannabis does not cause impairment that they have provided an exemption in law for prescribed cannabis?


I understand the point that impairment can still be proved in these cases but what is a practical method of proving impairment when objective methods like blood tests cannot be used?

GM228

ghost of ireland past wrote: »

One relevant point is, does cannabis always cause impairment in all users and if not, should there be a limit at all?


If a person has used cannabis, and is above the limit, (and has no prescription) then they are guilty of impaired driving, even if they are not impaired.

That fact is enshrined in the law in that a person who has been lawfully prescribed the cannabis is allowed to drive whereas the person who hasn't been prescribed the cannabis is assumed to be impaired and therefore guilty.
Having a prescription does not mean you are immune from impairment.


A person is not exempt from drink driving if the alcohol has been prescribed by a doctor, why would they be, they would still be impaired.



The dafualt position with cannabis should be that if you exceed a certain amount then everyone is banned from driving, unless the doctor has stated in writing that their client is not impaired by cannabis use.

Why are the legislators so sure that prescribed cannabis does not cause impairment that they have provided an exemption in law for prescribed cannabis?


I understand the point that impairment can still be proved in these cases but what is a practical method of proving impairment when objective methods like blood tests cannot be used?

A person who drives with canabis above the limit is neither presumed to be impaired nor found guilty of such.

And the comparison to alcohol is a non argument as alcohol is not prescribed for medicinal purposes.

Legislators are not sure or even suggesting canabis does not cause impairment, that's why they have not made any exemption to the impairment provisions.

The exemption for medical use is still qualified by being not impaired.

ghost of ireland past

It is an offence as far as I can see, to drive with cannabis in your body above the limits, unless that cannabis has been prescribed.

This link
http://www.irishstatutebook.ie/eli/2016/act/21/section/8/enacted/en/html
says that.


Section 1A says '... a person shall not drive or attempt to drive ... [while using cannabis]'

Section 1B exempts persons who have used cannabis from the above prohibition if the cannabis has been presribed by a doctor.

The question is why is there an exemption for prescribed cannabis?
The person is still under the influence and the prescrition does not help that.



My comparision with alcohol is valid.
Alcohol is prescribed by doctors in very limited circumstances.

methanol poisioning.

There are no exemptions in drunk driving legislation for lawfully prescribed alcohol but there is an explicit exemption for lawfully prescribed cannabis.

ohnonotgmail

ghost of ireland past wrote: »

It is an offence as far as I can see, to drive with cannabis in your body above the limits, unless that cannabis has been prescribed.

This link
http://www.irishstatutebook.ie/eli/2016/act/21/section/8/enacted/en/html
says that.


Section 1A says '... a person shall not drive or attempt to drive ... [while using cannabis]'

Section 1B exempts persons who have used cannabis from the above prohibition if the cannabis has been presribed by a doctor.

The question is why is there an exemption for prescribed cannabis?
The person is still under the influence and the prescrition does not help that.



My comparision with alcohol is valid.
Alcohol is prescribed by doctors in very limited circumstances.

methanol poisioning.

There are no exemptions in drunk driving legislation for lawfully prescribed alcohol but there is an explicit exemption for lawfully prescribed cannabis.

To be fair that has already been explained to you. There are two distinct offences. One is having an intoxicant above a prescribed limit. the other is driving while impaired due to an intoxicant. the exemption only applies to the first offence. If a person is above the prescribed limit for cannabis but has a medical exemption they have not committed an offence. If, however, their driving is impaired by cannabis then their exemption is irrelevant.

ghost of ireland past

People are not addressing the point I'm raising.

If cannabis use impairs driving then why is there an exemption for prescribed cannabis?

Does prescribed cannabis not cause impairment?

Does the prescription prevent people from becoming impaired?
If not, then it is reckless to provide an exemption.


In practical terms, how can the gardai prove impairment in these cases, if the person is impaired, if the gardai cannot rely on the mere fact that the person has consumed drugs above a certain limit?

The person can admit being under the influence of cannabis, but they can rely on their prescription and they can deny being impaired.

I don't think that Gardai can prove impairment in those cases.

If cannabis use impairs driving then there shoudln't be any exemptions.

jh79

ghost of ireland past wrote: »

People are not addressing the point I'm raising.

If cannabis use impairs driving then why is there an exemption for prescribed cannabis?

Does prescribed cannabis not cause impairment?

Does the prescription prevent people from becoming impaired?
If not, then it is reckless to provide an exemption.


In practical terms, how can the gardai prove impairment in these cases, if the person is impaired, if the gardai cannot rely on the mere fact that the person has consumed drugs above a certain limit?

The person can admit being under the influence of cannabis, but they can rely on their prescription and they can deny being impaired.

I don't think that Gardai can prove impairment in those cases.

If cannabis use impairs driving then there shoudln't be any exemptions.

Only two products are available in Ireland, one has no THC and other has a ratio of CBD:THC of 20:1. Unlikely to cause impairment.

ohnonotgmail

ghost of ireland past wrote: »

People are not addressing the point I'm raising.

If cannabis use impairs driving then why is there an exemption for prescribed cannabis?

Does prescribed cannabis not cause impairment?

Does the prescription prevent people from becoming impaired?
If not, then it is reckless to provide an exemption.


In practical terms, how can the gardai prove impairment in these cases, if the person is impaired, if the gardai cannot rely on the mere fact that the person has consumed drugs above a certain limit?

The person can admit being under the influence of cannabis, but they can rely on their prescription and they can deny being impaired.

I don't think that Gardai can prove impairment in those cases.

If cannabis use impairs driving then there shoudln't be any exemptions.

the section of the act you keep posting makes no mention of impairment. Impairment is irrelevant to this section.

http://www.irishstatutebook.ie/eli/2016/act/21/section/12/enacted/en/html#sec12

they can deny being impaired all they like. they dont get to decide if they are impaired. the garda makes that decision using the prescribed impairment test.

ghost of ireland past

If a person has used cannabis over certain limits that person can be arrested, with no proof of impairment required, under Section 4 (2) of RTA 2010.
If the limits for cannabis are like alcohol (strict liability) then there is no defence possible. You cannot raise the defence that you were unimpaired. Being over the limit is sufficient for sucessful prosecution.

There is an assumption in the law that you are impaired if you are over limits which is unfair. However, this presumption does not apply if you have a prescription.
It seems that the government is content to allow potentially impaired drivers to drive if they have a prescription.


OhnonotGmail's link is interesting.
http://www.irishstatutebook.ie/eli/2016/act/21/section/12/enacted/en/html#sec12
This legislation allows for impairment tests which sound like American style sobriety tests.


Have the impairment tests been specified by the Minister?

As per the link.
(4) For the purposes of subsections (1) and (2) the Minister may prescribe—

(a) the kinds of impairment tests that may be required to be performed,

(b) the manner in which such a test may be administered,


I have looked but I can't find these impairment tests themselves.


What are these impairment tests?
Have they been specified by the Minister?
Are they like American tests?
Are they fair?

Can you say the alphabet backwards when sober?



Impairment is complicated.
A person could be impaired by lack of sleep and there is no objective test for that.
A conviction for impairment due to lack of sleep would be very difficult to prove in court.
Can it be done?
Has it ever been done?

ohnonotgmail

ghost of ireland past wrote: »

If a person has used cannabis over certain limits that person can be arrested, with no proof of impairment required, under Section 4 (2) of RTA 2010.

Correct

ghost of ireland past wrote: »

If the limits for cannabis are like alcohol (strict liability) then there is no defence possible. You cannot raise the defence that you were unimpaired. Being over the limit is sufficient for sucessful prosecution.

The only defence available is that you were prescribed the cannabis by a doctor.

ghost of ireland past wrote: »

There is an assumption in the law that you are impaired if you are over limits which is unfair. However, this presumption does not apply if you have a prescription.
It seems that the government is content to allow potentially impaired drivers to drive if they have a prescription.

Can you tell me where that assumption is specified? i cannot see anything in the legislation that supports the existence of that assumption. Being over the limit and being impaired are two separate offences. It is possible to be guilty of one but not the other.

ghost of ireland past

My language was perhaps imprecise but when I said people were assumed to be impaired I meant that people could be convicted without any further evidence being required, and with no defence being possible.

A more precise description might be that people wil be convicted of what appears to be impaired driving, but at no point is impairment proved, or assumed, .. the person is convicted based solely on being in excesss of certain limits, and they are convicted even if they are not impaired. Impairment doesn't come into it if you are over certain limits.


Those convictions may well be unsafe.

I accept there is no explicit assumption of impairment but why is the person being convicted if they are not impaired?
It seems that there is in fact an assumption of impairment, even if that assumption is not explicitily stated.


Impairment is a very difficult thing.
Old age and infirmity also impairs driving but when should the Gardai step in there?

ohnonotgmail

ghost of ireland past wrote: »

My language was perhaps imprecise but when I said people were assumed to be impaired I meant that people could be convicted without any further evidence being required, and with no defence being possible.

A more precise description might be that people wil be convicted of what appears to be impaired driving, but at no point is impairment proved, or assumed, .. the person is convicted based solely on being in excesss of certain limits, and they are convicted even if they are not impaired. Impairment doesn't come into it if you are over certain limits.


Those convictions may well be unsafe.

I accept there is no explicit assumption of impairment but why is the person being convicted if they are not impaired?
It seems that there is in fact an assumption of impairment, even if that assumption is not explicitily stated.


Impairment is a very difficult thing.
Old age and infirmity also impairs driving but when should the Gardai step in there?

you really haven't read any replies that others have written. this has all been explained to you.

ghost of ireland past

I also mentioned earlier that a senior court in Italy has ruled that personal possession of some cannabis plants in your private residence is not unlawful.

They haven't explained their rationale but I think there will be a written explanation in a few weeks or months.

There is very little info on this but one article I read said that in Italy small amounts of cannabis possesion is illegal but it is not enforced and you are not charged in most cases. However, if one or two plants are found at your house then you are assumed to be in possession for the purpose of sale or supply. I think it is that presumption which has been struck down.


The ECHR guarantees people a right to a private life inside their own home and it is possible that a court would conclude that that right must include the right to cultivate and use cannabis. It doesn't affect anyone else and there are no victims.

ohnonotgmail

ghost of ireland past wrote: »

I also mentioned earlier that a senior court in Italy has ruled that personal possession of some cannabis plants in your private residence is not unlawful.

They haven't explained their rationale but I think there will be a written explanation in a few weeks or months.

There is very little info on this but one article I read said that in Italy small amounts of cannabis possesion is illegal but it is not enforced and you are not charged in most cases. However, if one or two plants are found at your house then you are assumed to be in possession for the purpose of sale or supply. I think it is that presumption which has been struck down.


The ECHR guarantees people a right to a private life inside their own home and it is possible that a court would conclude that that right must include the right to cultivate and use cannabis. It doesn't affect anyone else and there are no victims.

none of this has any relevance to our road traffic legislation.

ghost of ireland past

This thread is in legal discussion and the opening post is about the incorrect scheduling of cannabis.

ohnonotgmail

ghost of ireland past wrote: »

This thread is in legal discussion and the opening post is about the incorrect scheduling of cannabis.

indeed it is. your OP quoted wikipedia which has no legal effect in ireland.

Victor

ghost of ireland past wrote: »

A more precise description might be that people wil be convicted of what appears to be impaired driving, but at no point is impairment proved, or assumed, .. the person is convicted based solely on being in excesss of certain limits, and they are convicted even if they are not impaired.

It's a strict liability offence https://en.wikipedia.org/wiki/Strict_liability_(criminal) the Oireachtas has decided that anyone with more than X of Y substance has committed an offence. There are many strict liability offences which are prosecuted every day.

You may feel people are being caught on a technicality. Well the law is technical.

GM228

ghost of ireland past wrote: »

Have the impairment tests been specified by the Minister?

http://www.irishstatutebook.ie/eli/2014/si/534/made/en/print

ohnonotgmail

GM228 wrote: »

http://www.irishstatutebook.ie/eli/2014/si/534/made/en/print

so basically the same as the tests you see on american police documentaries?

GM228

ghost of ireland past wrote: »

The ECHR guarantees people a right to a private life inside their own home and it is possible that a court would conclude that that right must include the right to cultivate and use cannabis. It doesn't affect anyone else and there are no victims.

Article 8 claims have previously been made to the ECtHR in relation to the use of cannabis at home (and for medical reasons), in the latest one, the A.M. and A.K.vs Hungary Cases 21320/15 and 35837/15 4th April 2017 case, the ECtHR dismissed it.

ghost of ireland past

GM228 wrote: »

Article 8 claims have previously been made to the ECtHR in relation to the use of cannabis at home (and for medical reasons), in the latest one, the A.M. and A.K.vs Hungary Cases 21320/15 and 35837/15 4th April 2017 case, the ECtHR dismissed it.

Thank you for the info.

I could only find this document.
https://www.echr.coe.int/Documents/FS_Health_ENG.pdf

It says.
Factsheet–Health
Cannabis-based medication
A.M. and A.K. c. Hongrie (nos. 21320/15 and 35837/15)
4 April 2017 (decision on the admissibility)
The applicants, who both had serious health conditions which they submitted could be alleviated by cannabis-based medication, complained under Article 8 of the Convention that domestic legislation providing a legal avenue for requesting individual permission to import such medication lacked legal certainty.



That doesn't seem to be the same right that I am asserting. I am asserting that people have a right to a private life, as guaranteed by Article 8, ECHR, and that right must include a right to cultivate cannabis and to consume it.


Those people in Hungary appear to have been asserting some other right.

GM228

ghost of ireland past wrote: »

Thank you for the info.

I could only find this document.
https://www.echr.coe.int/Documents/FS_Health_ENG.pdf

It says.
Factsheet–Health
Cannabis-based medication
A.M. and A.K. c. Hongrie (nos. 21320/15 and 35837/15)
4 April 2017 (decision on the admissibility)
The applicants, who both had serious health conditions which they submitted could be alleviated by cannabis-based medication, complained under Article 8 of the Convention that domestic legislation providing a legal avenue for requesting individual permission to import such medication lacked legal certainty.



That doesn't seem to be the same right that I am asserting. I am asserting that people have a right to a private life, as guaranteed by Article 8, ECHR, and that right must include a right to cultivate cannabis and to consume it.


Those people in Hungary appear to have been asserting some other right.

It's an Article 8 claim you are trying to raise, it's been made unsuccessfully many times in many countries.

It is also recognised that drugs can be controlled in International Law under the United Nations Convention on psychotropic substances 1971 and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.

You need to remember that "rights" under the ECHR are not absolute and subject to legitimate restrictions and the 1988 agreement actually specifically requires member states to make personal cultivation a criminal offence.

ghost of ireland past

Have any cases made their way to the ECHR itself?

Why is it necessary that cannabis be banned from people's private lives?

Article 8 requires that any laws prohibiting or curtailing aspects of peoples private lives must be necessary in a democratic society, and banning cannabis is not necessary, as proven by some democracies around the world where cannabis is legal.

GM228

ghost of ireland past wrote: »

Have any cases made their way to the ECHR itself?

Why is it necessary that cannabis be banned from people's private lives?

Yes I believe so, I have read them before during legal studies, I would have to go digging for them, but it has also been tested in member state courts based on an Article 8 ECHR claim.

It is necessary because it is a requirement under International Law.

ghost of ireland past wrote: »

Article 8 requires that any laws prohibiting or curtailing aspects of peoples private lives must be necessary in a democratic society, and banning cannabis is not necessary, as proven by some democracies around the world where cannabis is legal.

The Council of Europe has signed up to and is bound by the 1988 agreement, it specifically requires member states to make it an offence (only subject to members Constitutions and legal systems).

The CoE declared no incompatibility with the ECHR when it signed to the agreement, they and other member states are bound by it, do you think they would sign up to an international agreement requiring such measures if it was incompatible with the ECHR?

ghost of ireland past

Article 8 of the ECHR grants particular rights to people. These rights should only be infringed if it is neccessary in a democratic society, as per Article 8 itself.

I am arguing that people should have a right to use cannabis because it is not necessary that cannabis be banned. This right only extends inside your own private home and not outside.

You are arguing that the government is obliged to ban cannabis because of treaties and agreements. I would argue and say the government cannot infringe my ECHR rights simply because it wants to comply with treaties.

GM228

ghost of ireland past wrote: »

Article 8 of the ECHR grants particular rights to people. These rights should only be infringed if it is neccessary in a democratic society, as per Article 8 itself.

And which part of Article 8 grants right to grow and keep drugs in your home?

ghost of ireland past wrote: »

I am arguing that people should have a right to use cannabis because it is not necessary that cannabis be banned. This right only extends inside your own private home and not outside.

International law requires that you can't have possession, purchase or cultivation of the drug for private use.

ghost of ireland past wrote: »

You are arguing that the government is obliged to ban cannabis because of treaties and agreements. I would argue and say the government cannot infringe my ECHR rights simply because it wants to comply with treaties.

Oh dear, you do realise that you are making the exact same argument don't you, the ECHR is also an international treaty you know.

You are essentially arguing that an international treaty should allow you have drugs in the home and reading in a non existent right despite the fact that international treaties specifically forbids cultivation or possession for private use.

ghost of ireland past

Article 8 grants me a right to a private life. That is a positive right. I don't have to justify any aspect of my private life, nor do I have to explain why my behaviour is permissible.

The dafault position is that I can do anything within my own home, and if the government want to restrict my behaviour within my own home then the onus is on the government to justify the restriction or ban.

The government can only restrict my Article 8 rights for the reasons listed in Article 8, and not for other reasons.

Wiki, Article 8 wrote:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Why is it necessary that there must be a ban on the private use of cannabis within a private home as an aspect of a person's private life?

The allowable reasons to ban aspects of private life, as listed in Article 8, are...
1. national security
2. public safety
3. economic well-being of the country
4. for the prevention of disorder or crime
5. for the protection of health or morals
6. for the protection of the rights and freedoms of others.


1,3 and 6 don't apply.
2 may apply but public safety could be ensured in another way without a complete ban and so 2 doesn't apply as it fails the 'necessary' test.

4 is circular.
It isn't clear to me what 4 means but it definitely doesn't mean that the government can ban anything they want, once they pass a law.
For example, consider if the government passed a law purporting to ban cheese. That law would be struck down in private homes on the basis of Article 8. It wouldn't matter that there is apparently a law banning cheese. It would not be necessary that cheese be banned and the law would be struck down for that reason.

5, for the protection of health or morals, is the strongest ground for banning cannabis from private homes. This ground is however not strong enough in the modern world, where democracies exist where cannabis is legal for recreational use, like Canada for example.


Therefore, the ban on the private use of cannabis within a private home will not stand scrutiny in the ECHR, as it is not necessary that it be banned, and a ban being necessary is a requirement of Article 8.

GM228

ghost of ireland past wrote: »

Article 8 grants me a right to a private life. That is a positive right. I don't have to justify any aspect of my private life, nor do I have to explain why my behaviour is permissible.

The dafault position is that I can do anything within my own home, and if the government want to restrict my behaviour within my own home then the onus is on the government to justify the restriction or ban.

The government can only restrict my Article 8 rights for the reasons listed in Article 8, and not for other reasons.




Why is it necessary that there must be a ban on the private use of cannabis within a private home as an aspect of a person's private life?

The allowable reasons to ban aspects of private life, as listed in Article 8, are...
1. national security
2. public safety
3. economic well-being of the country
4. for the prevention of disorder or crime
5. for the protection of health or morals
6. for the protection of the rights and freedoms of others.


1,3 and 6 don't apply.
2 may apply but public safety could be ensured in another way without a complete ban and so 2 doesn't apply as it fails the 'necessary' test.

4 is circular.
It isn't clear to me what 4 means but it definitely doesn't mean that the government can ban anything they want, once they pass a law.
For example, consider if the government passed a law purporting to ban cheese. That law would be struck down in private homes on the basis of Article 8. It wouldn't matter that there is apparently a law banning cheese. It would not be necessary that cheese be banned and the law would be struck down for that reason.

5, for the protection of health or morals, is the strongest ground for banning cannabis from private homes. This ground is however not strong enough in the modern world, where democracies exist where cannabis is legal for recreational use, like Canada for example.


Therefore, the ban on the private use of cannabis within a private home will not stand scrutiny in the ECHR, as it is not necessary that it be banned, and a ban being necessary is a requirement of Article 8.

You do realise that a ban on cultivation for personal use has been recognised as a legitimate ban for public health and morals by 190 states and institutions including the EU and the CoE and enshrined into international law don't you?

Sates are required to ban such under international law only subject to states constitutions and legal systems, it would be contrary to international law including agreements dating back to 1951 between the UN and CoE for such to happen.

ghost of ireland past

The public understanding of cannabis can change, and it has changed.

Cannabis is no longer considered to be a extremely dangerous drug which must be banned.


How do you think the ECHR court should determine if a cannabis ban is necessary?
After all, Article 8 clearly requires that a ban be necessary otherwise the ban is unlawful.

What test should the court use to determine if banning cannabis is necessary?
I can point to the existence of successful democracies in which cannabis is not banned, for example, Canada. That proves that it is not necessary in a democracy to ban cannabis. Therefore, it can't be banned under Article 8.

Impeccable logic yes?

I suspect you won't like the 'necessary' test I'm suggesting we use above.

What test do you think the court should use?
A test which concludes that banning cannabis is necessary in a democracy, despite the existence of functioning democracies in which cannabis is not banned?

Why should your test be used and not mine?
My suggested test is not wrong but it does give a result which many people won't like.


The world has moved on from cannabis prohibition. Europe needs to catch up.

GM228

ghost of ireland past wrote: »

The allowable reasons to ban aspects of private life, as listed in Article 8, are...
1. national security
2. public safety
3. economic well-being of the country
4. for the prevention of disorder or crime
5. for the protection of health or morals
6. for the protection of the rights and freedoms of others.

You forget to mention the "in accordance with law" exception for Article 8, weather you like it or agree with it or not, the ECtHR can not interpret the ECHR and its Protocols in a vacuum, it must be interpreted in harmony with the general principles of international law of which they form part of!

ghost of ireland past wrote: »

The public understanding of cannabis can change, and it has changed.

Cannabis is no longer considered to be a extremely dangerous drug which must be banned.

But the laws have not changed so the public perception is not really of importance, the ECtHR deals with facts and laws.

ghost of ireland past wrote: »

How do you think the ECHR court should determine if a cannabis ban is necessary?
After all, Article 8 clearly requires that a ban be necessary otherwise the ban is unlawful.

It is not up to the ECtHR to determine when a ban is necessary or not, that has nothing to do with the court, all it will do is apply it's test to see if there is a breach of Article 8, and if so if it is a legitimate breach, it would determine if a breach of any rights was necessary (not if a ban was necessary), under the scope of morals or being in accordance with the law.

ghost of ireland past wrote: »

What test should the court use to determine if banning cannabis is necessary?
I can point to the existence of successful democracies in which cannabis is not banned, for example, Canada. That proves that it is not necessary in a democracy to ban cannabis. Therefore, it can't be banned under Article 8.

Impeccable logic yes?

I suspect you won't like the 'necessary' test I'm suggesting we use above.

You can suggest any necessary test you like, but the ECtHR already has a long established necessity test in place.

ghost of ireland past wrote: »

What test do you think the court should use?
A test which concludes that banning cannabis is necessary in a democracy, despite the existence of functioning democracies in which cannabis is not banned?

The test it always uses which has absolutely nothing to do with that.

ghost of ireland past wrote: »

Why should your test be used and not mine?
My suggested test is not wrong but it does give a result which many people won't like.

I have not suggested "my" own test unlike you, you do realize the ECtHR have their own test, one part of that test examines if any legitimate restriction is to protect public morals or in accordance with the law, that includes obligations under international law, and if the state has made a restriction in accordance with it's obligations under international law (which once again are recognized all over the world), then the ECtHR will hold it as a legitimate restriction.

ghost of ireland past wrote: »

The world has moved on from cannabis prohibition. Europe needs to catch up.

I know of only 5 states which have allowed it, at least 4 have done it for constitutional reasons and I wouldn't be surprised if the Court of Cassation in Italy also made it's ruling based on their Costituzione della Repubblica Italiana which is entirely permissible in international law.

Oh, and those states hardly represents the "world".

ghost of ireland past

The phrase in Article 8 'in accordance with the law' is of no significance here.
The phrase has the following effect.
If your private life was interfered with, and there was no law which allowed for the interference, then the interference is automatically unlawful.
However, if there is a law which purports to allow for the interference in your private life then that is not sufficient by itself to make the interference with your private life lawful. For the interference to be lawful all of the other conditions must also be met. One of those other conditions is that any interference must be necessary in a democratic society.
Necessary means essential.



It's interesting what you say about the State's need to ensure it complies with it's treaty obligations, for example, under some UN treaty etc. I'm not sure if this correctly represents your position but you are saying that the State has previously committed, in previous treaties and agreements, that the State would ban cannabis. Therefore, the State has to ban cannabis, and your Article 8 rights can go and sing for their troubles.
But Article 8 doesn't allow the State to interfere with your private life for the reason that the State has previous commitments it wants to adhere to.

There were 6 reasons by which your rights could be infringed.
Which of those reasons are you arguing for here?
It could be
4. for the prevention of disorder or crime.
The reason that would be the one is that the argument would be that cannabis use represents a crime under some treaty or other and therefore it must be banned.

I'm not sure about that argument but I don't find it completely compelling.

GM228

ghost of ireland past wrote: »

The phrase in Article 8 'in accordance with the law' is of no significance here.

It absolutely does!

The ECtHR has specifically stated that the ECHR must be read with international law taken into account.

ghost of ireland past wrote: »

The phrase has the following effect.
If your private life was interfered with, and there was no law which allowed for the interference, then the interference is automatically unlawful.
However, if there is a law which purports to allow for the interference in your private life then that is not sufficient by itself to make the interference with your private life lawful. For the interference to be lawful all of the other conditions must also be met. One of those other conditions is that any interference must be necessary in a democratic society.
Necessary means essential.

You need to brush up on your understanding of how it is determined, only one of the protections must be met, not all. Once they establish a prohibition is allowed under the law, they then establish one and only one reason such as for protecting public morals.

ghost of ireland past wrote: »

It's interesting what you say about the State's need to ensure it complies with it's treaty obligations, for example, under some UN treaty etc. I'm not sure if this correctly represents your position but you are saying that the State has previously committed, in previous treaties and agreements, that the State would ban cannabis. Therefore, the State has to ban cannabis, and your Article 8 rights can go and sing for their troubles.
But Article 8 doesn't allow the State to interfere with your private life for the reason that the State has previous commitments it wants to adhere to.

It does, in 2014 the ECtHR reaffirmed that the ECHR must be interpreted in harmony with a states obligations under international law.

Oh and by the way the CoE also supports the ban under international law, it has mutual legal agreements with the UN going back to the 1950s to support and agree with their protocols.

ghost of ireland past

In my view, all arguments on this issue must be grounded in the text of Article 8 itself. It's interesting what you say about the ECHR court needing to take international law and treaty obligations into account. I don't fully understand it but I'll give it a go.

When you say only one of the protections must be met, that would be true if the protections were joined by the word 'or', but they are joined by the word 'and', so all of the conditions must be met.

Article 8 &#8211 wrote: »

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The six reasons...
1. national security
2. public safety
3. economic well-being of the country
4. for the prevention of disorder or crime
5. for the protection of health or morals
6. for the protection of the rights and freedoms of others.


I think this argument about treaty obligations must be grounded in the text of Article 8.

Either it is ground 4.
4. for the prevention of disorder or crime
based on the idea that cannabis use or possession has been defined in a treaty to be a crime.

or it could be ground 5
5. for the protection of health or morals
based on the idea that cannabis would have been defined or declared in a treaty to be a threat to health.


The argument based on ground 4 is fairly circular, and it should be possible to revisit the issue of whether or not cannabis possession must be a crime. But, if cannabis is declared in a treaty to be a crime and that can't be argued with, then the 'in accordance with the law' part is satisfied but the argument would still fail the 'necessary in a democracy' test in my view. Both of those parts must be satisfied.


The argument based on ground 5 is interesting. A treaty cannot declare a certain fact to be true, and say that that is the case for all time. If new information comes to light then the facts change. The ECHR court cannot rely on a declaration or a definition about cannabis from a 50 year old document. The court must take modern knowledge into account. The court must conclude that it is not necessary that cannabis be banned for health reasons, even if cannabis is described or declared to be a threat to health in some dusty treaty.

GM228

ghost of ireland past wrote: »

In my view, all arguments on this issue must be grounded in the text of Article 8 itself. It's interesting what you say about the ECHR court needing to take international law and treaty obligations into account. I don't fully understand it but I'll give it a go.

When you say only one of the protections must be met, that would be true if the protections were joined by the word 'or', but they are joined by the word 'and', so all of the conditions must be met.

It is long established from day one that only one must be met, you need to take account of the use of commas.

Anyway, if still in doubt - from the ECtHR themselves:-

https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf

Conditions upon which a State may interfere with the enjoyment of a protected right are set out in paragraph 2 of Article 8, namely in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Limitations are allowed if they are “in accordance with the law” or “prescribed by law” and are “necessary in a democratic society” for the protection of one of the objectives set out above

The state only need to show it was in accordance with law, and necessary in a democratic society for one of the reasons.

In determining the the necessity the ECtHR will balance the states interests between yours.

ghost of ireland past wrote: »

The six reasons...
1. national security
2. public safety
3. economic well-being of the country
4. for the prevention of disorder or crime
5. for the protection of health or morals
6. for the protection of the rights and freedoms of others.

As confirmed in the Nnyanzi vs United Kingdom Case 21878/06 2008 the exemptions list is not always a closed list, exemptions not stated in Article 8 can be valid too.

ghost of ireland past wrote: »

I think this argument about treaty obligations must be grounded in the text of Article 8.

Either it is ground 4.
4. for the prevention of disorder or crime
based on the idea that cannabis use or possession has been defined in a treaty to be a crime.

or it could be ground 5
5. for the protection of health or morals
based on the idea that cannabis would have been defined or declared in a treaty to be a threat to health.


The argument based on ground 4 is fairly circular, and it should be possible to revisit the issue of whether or not cannabis possession must be a crime. But, if cannabis is declared in a treaty to be a crime and that can't be argued with, then the 'in accordance with the law' part is satisfied but the argument would still fail the 'necessary in a democracy' test in my view. Both of those parts must be satisfied.

But 190 states including the EU and CoE agree such measures are necessary in a democracy.

ghost of ireland past wrote: »

The argument based on ground 5 is interesting. A treaty cannot declare a certain fact to be true, and say that that is the case for all time. If new information comes to light then the facts change. The ECHR court cannot rely on a declaration or a definition about cannabis from a 50 year old document. The court must take modern knowledge into account. The court must conclude that it is not necessary that cannabis be banned for health reasons, even if cannabis is described or declared to be a threat to health in some dusty treaty.

Until the treaty is amended it still stands (also you should look up the legal definition of enactments always speaking if you think old documents don't apply), and the agreement regarding the drugs is from 1988, not 50 years ago.


The argument is going around in circles, if you are not satisfied take an ECtHR case, but it will be up to you to establish first of all that you actually have the right to take drugs under Article 8, before the state even then have to establish why they interfered with that right, and then in the unlikely event you win remember that decisions of the ECtHR are actually non binding on member states.

ghost of ireland past

I admit that I don't fully understand the argument about treaty obligations.

However, my position remains that Article 8 requires that a restriction or a ban on aspects of your private life must be necessary otherwise the restriction or the ban is unlawful.

If something is necessary then it is essential. If something is essential then there can be no counter examples. If a single counter example exists then it is not essential that that something should be done, and that is incontrovertible.


Canada continues to exist as a democracy despite the fact that cannabis is not banned.

Therefore, it is now proved, beyond contradiction or doubt, that it is not necessary that cannabis be banned in order to have a functioning democracy.

Therefore, cannabis use within your own home cannot be banned within the EU under Article 8, as it is not necessary.

That is my position and I would go to court on it.


My position is stated in quite simple terms and is easy to understand. The objections are complex and are difficult to understand.

GM228

Just because your opinions are simple and the objections are complicated does not mean you are correct and they must be followed, you have also forget the essential part of any Article 8 test weather it be in a national court or the ECtHR, before any question of a legitimate interference comes into play you must first off show that Article 8 specifically creates a right to cultivate and take drugs in your home, not that it creates a general right, you must establish that specific right which you claim has been interfered with.

You admit you have not got a proper understanding of how treaties and obligations work, the same can also be said for your understanding of the necessity tests, the ECHR, the ECtHR and your belief that just because something is legislated for in one country that it MUST be allowed under a charter, that is very far from reality and a very naive way of thinking, it simply does not work that way.

Canada has legalized canabis in certain circumstances due to constitutional reasons (stemming initially from a case in 2000), which is recognised and permitted under international law, you can bang on about it all you like but it's in accordance with the norms, unless you can find a reason under the Irish Constitution and then somehow successfully manage to lobby TDs to change the law or take a judicial review it's not going to change here any time soon.

ghost of ireland past wrote: »

Therefore, cannabis use within your own home cannot be banned within the EU under Article 8

Just on this point, as a matter of clarity, the ECHR and ECtHR has nothing to do with the EU, and the requirement to ban under international law applies to the majority of the world.

ghost of ireland past

You could argue that Canada is doomed by virtue of having legalised cannabis.
That would also defeat my argument. You could say that it only appears that Canada is still a functioning democracy but that really Canada is now doomed, by virtue of having legalised cannabis, that Canada is now holed below the waterline and just like the Titanic it will eventually sink and cease to exist.


I don't think my argument has total and universal applicability.

For example, home distillation of alcohol is legal in New Zealand but I wouldn't use the same argument there, that the example of New Zealand means that home distillation of alcohol cannot be banned in EU countries. I think there are differences between New Zealand and Canada, and that might sway the argument.
If I had to I would use the argument but I don't think the example of New Zealand is as strong as the example of Canada.


There is also the 'margin of appreciation' which allows for different countries to interpret provisions differently.
I don't think that applies here to the cannabis ban. The margin of appreciation might allow for different ages of consent for example, or different ages of legal alcohol drinking, but not an outright ban in one country as opposed to legalisation in a second country, in my view.


Finally, my reasoning is very logical or strict, and it might appear as if I'm saying that all democracies must think with a single mind. I'm not saying that because I accept that the margin of appreciation allows for some differences but that margin of appreciation isn't sufficient to allow for a complete ban of cannabis. I'm also concediing that some democracies, like New Zealand, may not serve as good examples for the EU.



In the end, I'm still of the opinion that cannabis can't be banned in private homes, because of the example of Canada.

GM228

You need to get a better understanding on the "margin of appreciation", in fact the application of the doctrine to Article 8 claims has previousoy shown that the ECHR is inferior to the national states measures, it is held to be the lowest common denominator by the ECtHR.

The ECtHR has often held that national states know better than they do when it comes to protection of morals for example.

Anyway once again I'll point out you need to establish you have a specific right to cultivate and take drugs in your home before any issues of a legitimate interference becomes a live issue, mentioning Canada etc does not establish that you also have the same ability as a right under Article 8.

ghost of ireland past

In fairness I don't have to establish an explicit or a specific right to use cannabis in order for my argument to be successful.

As an example of the applicability of Article 8 I will give the example of a Maltese or a Cypriot law which purported to ban homosexual acts between consenting partners, and which was struck down by the ECHR under Article 8. This is mentioned on the Wikipedia page.

I would suggest that homosexual sex is more likely to offend public morality than cannabis use, and homesexual sex is more likely to lead to negative health outcomes than cannabis use. Despite these concerns, the ECHR still struck down the law which purported to ban homesexual sex between consenting adult males.


Why is the court going to refuse to allow people to use cannabis?

meathstevie

I’m waiting for the freeman nonsense to be spouted.

You can’t read bits and pieces of law selectively and then apply your wishful thinking and proclaim it to be fact.

1. Until further notice possession of non prescription cannabis products is an offence.

2. Your right to privacy under ECHR art.8 does not grant you protection from intrusive criminal investigation done in accordance with national law by lawfully established law enforcement agencies.

3. Driving while intoxicated is illegal. Sometimes this is defined by certain scientifically verifiable limits of certain substances in your blood, urine, breath or saliva. It is always illegal to drive when seven sheets to the wind aka unfit to drive, limits don’t come into it.

4. Italian courts have no jurisdiction in Ireland nor do they set legal precedent.

5. Your reasoning is a bit warped to be honest; alcohol is legally availed as well, as a consequence drink driving should be legal following the train of thought demonstrated.

ghost of ireland past

The only concern I have is this reason in Article 8, 'for the prevention of disorder or crime'.


I now think that maybe that refers to previous treaty obligations, as GM228 might be suggesting, and that the court might reason as follows.

Ireland has committed itself to ban cannabis by virtue of having signed up to some UN treaty, or to some other agreement. Therefore, it is necessary under Article 8 that cannabis be banned, for the reason of 'for the prevention of disorder or crime', based on the idea that Ireland has previously committed itself legally to ban cannabis.


If that is the case I still think a challenge is possible, it's just that the challenge must now be changed.

I have two issues.
1. The exact meaning of 'for the prevention of disorder or crime' in Article 8? Does it refer to treaty obligations?

2. How the court determines if something is necessary, in other words, what is the test for necessarity, and can that test be challenged, and can alternative tests be offered by plantiffs?

GM228

ghost of ireland past wrote: »

In fairness I don't have to establish an explicit or a specific right to use cannabis in order for my argument to be successful.

Yes you do, you have to show you have a right to do X in order to show your right to do X has been infringed, how do you think your argument would be successful if you don't establish the core element of your argument?

A person taking a claim has always had to establish their claim falls under the Article, it's part 1 of the ECtHR two-stage test for any claim, if they don't succeed in establishing a valid right then the claim is marked as inadmissible and it does not even proceed to part 2.

ghost of ireland past wrote: »

As an example of the applicability of Article 8 I will give the example of a Maltese or a Cypriot law which purported to ban homosexual acts between consenting partners, and which was struck down by the ECHR under Article 8. This is mentioned on the Wikipedia page.

I would suggest that homosexual sex is more likely to offend public morality than cannabis use, and homesexual sex is more likely to lead to negative health outcomes than cannabis use. Despite these concerns, the ECHR still struck down the law which purported to ban homesexual sex between consenting adult males.

They are not comparable and 190 countries and institutions did not agree on legal issues surrounding homosexuality.

Also - Rule 101: Don't refer to Wikipedia for legal argument

ghost of ireland past wrote: »

Why is the court going to refuse to allow people to use cannabis?

That is not the role of the court to refuse or otherwise the use of cannabis, that is a national competence issue.

ghost of ireland past wrote: »

Ireland has committed itself to ban cannabis by virtue of having signed up to some UN treaty, or to some other agreement. Therefore, it is necessary under Article 8 that cannabis be banned, for the reason of 'for the prevention of disorder or crime', based on the idea that Ireland has previously committed itself legally to ban cannabis.

It's not just Ireland, it's most of the world including the EU and the CoE and it's not simply for prevention of order or crime, it is a much more complicated piece of law which deals with multiple factors including health issues.

ghost of ireland past wrote: »

If that is the case I still think a challenge is possible, it's just that the challenge must now be changed.

Go and try a challenge so, you'll have to go through the High and Supreme Courts before you even get to the ECtHR.

ghost of ireland past wrote: »

I have two issues.
1. The exact meaning of 'for the prevention of disorder or crime' in Article 8? Does it refer to treaty obligations?

The entire convention must be read in light of international law, not just a single part, in the words of the ECtHR themselves, it is not read in a "vacuum".

ghost of ireland past wrote: »

2. How the court determines if something is necessary, in other words, what is the test for necessarity, and can that test be challenged, and can alternative tests be offered by plantiffs?

The test is complicated depending on the legitimate interference area raised and no you can't offer your own test, it is set by many years of jurisprudence of the ECtHR.

marieholmfan

In 1953 when we signed up to the convention on human rights it couldn't have been foreseen that this would create a right to engage in consensual homosexual behaviour.


I don't see how the finding of a right to consume recreational cannabis is any more retrospective than the right to engage in consensual homosexual behaviour.


Also the prosecution of people for possession of cannabis has more in common with Dudgeon than with Norris as people are in fact routinely prosecuted for the simple possession of cannabis.


However in Dudgeon the ECtHR accepted the existence of a natural predisposition to homosexuality (something that is now a normative opinion).


Surely there is no natural predisposition to consume cannabis?