Discharged airman wins drugs challenge

A YOUNG Defence Forces airman who claimed a positive drugs test in his case was due not to smoking cannabis himself but because he was in a car with two friends who were smoking it has won a challenge to his discharge from the Air Corps.

The Supreme Court yesterday granted the appeal by Airman David Rawson (25) against the order for his discharge made in 2007. The discharge has been on hold pending the outcome of his court action and he has been on administrative duties in the interim.

In allowing the appeal the Supreme Court said it was for the Defence Force authorities to decide whether the issues raised by Airman Rawson’s positive drug tests “could, or should, be considered again”.

Airman Rawson, of Carrow Road, Drimnagh, Dublin, had sought to quash the discharge in judicial review proceedings against the Minister for Defence. When the High Court rejected his case in 2008, he appealed to the Supreme Court.

Airman Rawson had denied smoking cannabis and also argued he was given no opportunity, prior to his discharge being recommended, to call evidence in relation to the possibility of a false positive test from passive smoking.

The court heard compulsory random drug testing was introduced in the Defence Forces in January 2002.

Airman Rawson joined as a recruit on September 4th 2006 and underwent training at the Military Training School, Casement Aerodrome, Baldonnel, which included an awareness programme on drugs.

He was subject to a random compulsory test at Casement Aerodrome in November 2006 and tested positive. He was notified he had tested positive on December 11th and subsequently advised he was liable for discharge. On January 26th, 2007, the general officer commanding decided he should be discharged.

In dismissing his High Court challenge, Mr Justice John Hedigan said the Army correctly allows a low-level cut-off to provide for the possibility of some level of passive smoking.

In Airman Rawson’s case, the test reading was more than double that cut-off point, he noted, but Airman Rawson said this was due to the presence in his car of friends smoking cannabis.

The judge said he believed there were ample grounds for the decision to discharge Airman Rawson.

Giving the Supreme Court’s judgment yesterday overturning that decision, Mr Justice Frank Clarke said the real issue in the case was whether, when deciding if Airman Rawson should be discharged, the ultimate decision-maker asked himself the right question.

Because Airman Rawson had raised the possibility of innocent or inadvertent inhalation of cannabis in opposing discharge, he had created a situation where the Army authorities had to determine whether there was a reasonable doubt on that issue.

The army decision-maker had to ask himself whether there was a reasonable doubt whether the positive sample arose out of circumstances that could be considered innocent or inadvertent. If there was a reasonable doubt, Airman Rawson had to remain in the Defence Forces.

The issue of the standard of proof was of great importance, the judge said. The regulations were clear – once the issue of innocent or inadvertent inhalation was raised, the matter must be determined on the basis of proof beyond reasonable doubt.

The lawfulness of the discharge depended on whether the decision-maker asked and rationally answered the reasonable doubt question, the judge said. The court had to be satisfied the correct question was asked but, in this case, there was no evidence it had.

Nothing in the evidence before the court provided any indication as to the basis for the decision to discharge.

It was possible the decision maker did not believe Airman Rawson or considered his defence did not bring him within the innocent or inadvertent category but the problem was there was no evidence to that effect.

The High Court judge had erred in engaging in a hypothesis about the basis on which the relevant Army superior officers approached this matter, Mr Justice Clarke said.