Introduction

Jenkins v Director of Public Prosecutions & Ors (Approved) ([2022] IEHC 291) is a landmark case adjudicated by the High Court of Ireland on May 18, 2022. The plaintiff, Mark Jenkins, sought a judicial stay of three separate criminal prosecutions related to the possession and supply of hemp and cannabis products. These prosecutions were initiated under Ireland's Misuse of Drugs Act, 1977. The core issue revolves around the compatibility of Irish legislation with European Union (EU) law concerning the regulation and free movement of hemp and cannabis derivatives, particularly Cannabidiol (CBD) with a THC content below 0.2%.

Summary of the Judgment

Justice Emily Egan delivered an ex tempore judgment granting a stay for the first prosecution initiated on February 11, 2020, against Mark Jenkins. The prosecution pertained to the possession of raw true hemp, which allegedly violated Section 3 and Section 15 of the Misuse of Drugs Act, 1977. The court found that Jenkins had presented a viable case challenging the applicability of Irish law under EU regulations, specifically Regulation 1308/2013 and Regulation 1307/2013, concerning the free movement of goods and agricultural products.

The judgment emphasized that the seized hemp complied with EU standards for THC content and was lawfully imported under Article 189 of Regulation 1308/2013. Consequently, the prohibition under Irish law could potentially hinder intra-EU trade, necessitating justification under Article 36 of the Treaty on the Functioning of the European Union (TFEU). Given the absence of evidence from the Director of Public Prosecutions (DPP) to counter these claims, the court found sufficient grounds to grant the stay pending resolution of the constitutional and EU law challenges. However, the court did not extend the stay to the second and third prosecutions due to insufficient evidence regarding the nature and THC content of the seized materials.

Analysis

Precedents Cited

The judgment extensively referenced several key cases and legal principles, notably:

• Kanavape Case (C-663/13): Clarified that CBD extracted from the entire Cannabis Sativa plant does not fall under the definition of 'drugs' as per the Single Convention, provided it lacks psychoactive properties.
• Okunade v Minister for Justice: Established the foundational principles for granting interlocutory injunctions, emphasizing the necessity of an arguable case and the balance of convenience.
• Dowling v Minister for Finance: Enhanced the Okunade principles by integrating considerations regarding effective remedies and the strength of the applicant's case.
• Friends of the Irish Environment v Minister for Communication & Ors: Reinforced the application of interlocutory relief principles in the context of EU law challenges.
• MD v Ireland: Provided a stringent framework for staying criminal proceedings pending constitutional challenges, highlighting the presumption of legislative constitutionality.

These precedents collectively influenced the court’s approach to balancing the enforcement of domestic legislation with the obligations under EU law, particularly concerning the free movement of goods and the classification of hemp products.

Legal Reasoning

The court's legal reasoning hinged on the interpretation of both domestic and EU laws concerning hemp and CBD products. Central to this was:

• Definition and Classification: The court scrutinized whether the seized hemp fell within the scope of EU regulations as an agricultural product and whether it qualified for exemptions based on THC content.
• Free Movement of Goods: Articles 34 and 36 of the TFEU were pivotal in assessing whether Irish prohibitions unjustifiably restricted intra-EU trade.
• Regulation Compliance: The court examined Regulation 1308/2013 and Regulation 1307/2013, focusing on Article 189 which governs the importation of hemp from non-EU countries, ensuring compliance with THC content and certification standards.
• Balance of Conveniences: Applying the principles from Okunade and Dowling, the court weighed the potential harm to Jenkins against the State's interest in enforcing drug regulations.
• Absence of Justification: The lack of evidence from the DPP regarding the necessity and proportionality of the prohibitions under Article 36 rendered the State unable to justify the restrictions imposed on Jenkins.

Ultimately, the court found that Jenkins’ importation of raw true hemp with THC content below 0.2% did not constitute a hindrance to intra-EU trade, and the State failed to provide adequate justification for its prohibitions under EU law.

Impact

This judgment sets a significant precedent in the alignment of national drug laws with EU regulations, particularly in the burgeoning market of hemp and CBD products. Key impacts include:

• Legal Certainty: Establishes clearer guidelines for businesses dealing with hemp and CBD, ensuring compliance with both domestic and EU laws.
• Judicial Review Practices: Reinforces the High Court's role in balancing national legislation with supranational obligations, especially concerning the free movement of goods.
• Regulatory Adjustments: May prompt legislative bodies to revisit and potentially harmonize drug regulations to align with EU standards, reducing legal ambiguities for stakeholders.
• Strategic Litigation: Encourages similar challenges against restrictive domestic laws that conflict with EU regulations, fostering a more integrated legal framework across member states.

Furthermore, by granting the stay on the first prosecution, the judgment underscores the necessity for the State to substantiate its legislative restrictions with robust scientific and legal justifications, thereby promoting transparency and fairness in the enforcement of drug laws.

Complex Concepts Simplified

1. Free Movement of Goods (Articles 34 & 36 TFEU)

These provisions prohibit member states from imposing unnecessary restrictions on the import and export of goods within the EU. Article 34 bans both quantitative restrictions and measures with equivalent effect, while Article 36 provides exceptions, allowing restrictions if justified by reasons such as public health.

2. THCA Content in Hemp

THC (tetrahydrocannabinol) is the psychoactive component in cannabis. EU regulations permit the import and cultivation of hemp with THC levels below 0.2%, as these are considered non-psychoactive and less harmful.

3. Interlocutory Injunction

A temporary court order granted during the course of a legal proceeding to preserve the status quo or prevent imminent harm until a final decision is made.

4. Precautionary Principle

This principle allows authorities to take protective measures when there is scientific uncertainty about potential risks to public health or the environment.

5. Article 189 Regulation 1308/2013

Governs the importation of hemp into the EU from non-member countries. It specifies that hemp can be imported if it meets certain criteria, including THC content limitations and certification standards.

6. Single Convention on Narcotic Drugs

An international treaty aimed at combating drug abuse by coordinated international action. It classifies and regulates various substances, including cannabis and its derivatives.

Conclusion

The High Court's decision in Jenkins v Director of Public Prosecutions & Ors marks a pivotal moment in the intersection of national drug laws and EU regulatory frameworks. By granting a stay on the prosecution, the court recognized the insufficiency of Irish legislation to align with EU standards for hemp and CBD products, especially concerning products with THC content below 0.2%. This judgment not only empowers businesses operating within the EU to challenge restrictive national laws but also urges legislative bodies to harmonize domestic laws with EU regulations, fostering a more coherent and fair legal environment for emerging markets such as hemp and CBD.

Moving forward, legislators and regulatory authorities in Ireland and other EU member states will need to reassess and potentially revise their drug laws to ensure compliance with EU directives and treaties. Additionally, this case serves as a beacon for future litigants seeking to reconcile national prohibitions with EU freedoms, thereby strengthening the supremacy of EU law in areas pertaining to the internal market and free movement of goods.