Judges ban return of legal highs to Coleraine man

Senior judges identified no general public policy grounds for a previous decision that 63 tablets seized from Cain McCarthy should be retained.

However, they held that any return would result in further confiscation and disposal of the batch under new legislative powers.

McCarthy, a 20-year-old regarded by the PSNI as a “priority offender”, had issued proceedings aimed at regaining pills taken from him when he was stopped and searched in January 2014.

At least 38 of the tablets were analysed as being so-called legal highs, while others are believed to have been placebos.

McCarthy’s lawyers argued that he is the undisputed owner of substances that are lawful to possess.

With no prosecution brought over the incident which led to the seizure, they also contended that police can no longer justify retaining his property.

McCarthy, who has a number of convictions, was seeking to overturn decisions by two lower courts that the batch should remain withheld from him.

He insists the police refusal, based on concerns for his health and behaviour, breaches his human rights.

Counsel for the chief constable argued that police should have a discretion, claiming there could be consequences if McCarthy obtained the drugs and took them.

He was said to have been under their influence during a separate incident where an armed police response team was sent to his mother’s house amid claims he had smashed up furniture and armed himself with a knife.

He is also believed to have taken similar substances when he twice breached bail conditions.

A County Court judge previously said it would be “utterly repugnant” to compel police to return dangerous products which have caused harm to McCarthy, his family and the community.

Her decision led to the case going before the Court of Appeal.

Ruling on the challenge, Lord Justice Weatherup noted that the Psychoactive Substances Act 2016 – not in force when the lower courts dealt with the case – did not make it an offence to simply be in possession of such a substance.

But the legislation contains powers of seizure and retention of legal highs if a police officer reasonably believes they are to be taken for their psychoactive effects.

“The return of the legal highs would be contrary to the statutory purpose of the 2016 Act as it is clear the appellant is likely to consume these items for their psychoactive effects,” he said.

“Accordingly, while recognising that there were no general public policy grounds for refusing the return of the items, as relied on by Her Honour, in the circumstances where the items are now liable to seizure and disposal by the police, we do not propose to take any step that would interfere with the order made by Her Honour.”

After setting out reasons for their verdict, the appeal judges awarded McCarthy his legal costs in bringing the challenge.