An offender seeking to force police to hand back a batch of so-called legal highs should not have to justify his own property, the Court of Appeal heard on Tuesday.
Cain McCarthy is locked in a legal battle over the PSNI’s refusal to return just over 60 pills seized from him nearly two and a half years ago.
The Coleraine man’s lawyers argued that he is the undisputed owner of substances that are lawful to possess.
With 20-year-old McCarthy facing no prosecution over the incident which led to the confiscation, they also contended that police can no longer justify retaining his property.
But counsel for the Chief Constable claimed he has a discretion to keep hold of drugs which, if returned and taken, could result in further offences.
McCarthy, who has a number of convictions, is 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.
The tablets were seized when he was stopped and searched during an incident in January 2014.
At least 38 of the pills were analysed as being so-called legal highs, while others are believed to have been placebos.
Senior judges were told today that McCarthy was under their influence in a separate incident where an armed police response team was sent to his mother’s house amid claims he had smashed up furniture.
He is also believed to have taken similar substances when he twice breached bail conditions.
During a previous hearing a County Court judge ruled that it would be “utterly repugnant to compel police to return dangerous products which have caused harm” to McCarthy, his family and the community.
But his barrister, Donal Sayers, contended yesterday: “It’s not unlawful for the appellant to possess the property at issue.”
Mr Sayers likened the situation to those who smoke cigarettes knowing the health risks involved.
“That just points up the fact that benefit is not a consideration here,” he said.
“It’s not for the appellant to have to justify possession of his own property.”
During proceedings Lord Justice Weir drew a hypothetical comparison with a man known to cause trouble after drinking whiskey.
He questioned whether police should return a bottle seized from him on the wrongful suspicion that it was stolen - even though they know what could happen when he drinks.
But Mark Lennon, for the Chief Constable, insisted police should have a discretion.
“The reality here is that if he (McCarthy) gets these drugs he will take them,” the barrister argued.
“When he takes them things happen.”
Following submissions the three-judge panel confirmed they were reserving their decision.
Lord Justice Weatherup said: “This is a simple situation but a complicated issue.” ends