Magistrate highlights conflicting drug-related laws as doctor was charged with trafficking cannabis
A classic case of a conflict in the current laws that relate to regulating asset freezing in cannabis-related cases. This was pointed out, late last week in court, as police arraigned Paola’s Pain Clinic’s medical director.
Marshal Mallia, Drugs Squad Inspector arraigned Dr. Andrew Agius before magistrate Victor Axiaq on Thursday 10th Match. He was charged with offenses relating to trafficking and importation of cannabis grass. The doctor was charged with importing, selling and the aggravated possession of cannabis grass, under the Dangerous Drugs Act.
The prosecution also requested the court to impose a freezing order over Agius’ assets and to order the revocation of his medical license. Pain Clinic’s medical director pleaded not guilty to the charges.
Was Cannabis the issue, behind the arrest?
What led to his arrest was the issue of whether the cannabis buds in questions could be defined as cannabis products. Agius’ defense lawyers, Gianella De Marco, Stephen Tonna Lowell, and Alexander Scerri Herrera argued that the cannabis allegedly imported by Agius had less than 0.2% THC content which means that they cannot be considered as a psychotropic substance. While the doctor is claiming that it is a product, the inspector refuses to believe that it is anything by a prohibited drug.
However, the main issue here, as lawyers De Marco and Tonna Lowell rightly pointed out, lies in the fact that the law does not clearly define what a product is. They explained to the court that the substance in question consisted of only processed cannabis buds.
Tonna Lowell requested bail for Agius but this request was opposed by the inspector. Dr. Andrew Agius has strong ties to Malta and has a clean criminal record. De Marco claimed that there was no reason for the court not to trust him.
The prosecution continued to call for a freezing order over Agius’ assets and to take away his license. The police also requested that Agius not be granted bail and that he should be kept under police custody.
‘We are accusing him of importing and trafficking cannabis. If the Attorney General says that this is cannabis, and the man is selling it in his clinic, then the earnings of this clinic are part of the proceeds of the crime,’ claims inspector Mallia in court.
However, the magistrate upheld the request for bail against a deposit of €120 and a personal guarantee of €5,000. The court did not set a curfew or a request for Agius to sign at the police station, telling him he should not go abroad or requesting him not to speak to other witnesses.
The issue of the freezing of assets showed the confusion surrounding drug laws in Malta.
Tonna Lowell remarks that, ‘today we have decrees which have established that the onus is on the prosecution to justify the freezing order. It is intended to seize the proceeds of crime and I don’t think that because we disagree on the definition of a product, we should stop a person’s entire life.’
In this case, the freezing order would in fact impact employees’ salaries. Inspector Mallia said that he was fine with the freezing order. However, the magistrate claimed that this order was not mandatory since the court noted that there were low levels of THC in the products. The inspector insisted that the law didn’t consider THC levels and that the assets should be frozen irregardless.
The magistrate then claimed that there were three different chapters of the law to justify the freezing order. Agius was being charged under Chapter 101 (the Dangerous Drugs Ordinance) not under Chapter 621 (the Proceeds of Crime Act).
‘We are saying that the bud is a cannabis product,’ Arnaud said. ‘And we are saying that it isn’t. We are disagreeing on this,’ Tonna Lowell claimed.
Under these confusing circumstances, the magistrate refused a freezing order and instead issued a temporary freezing on Agius’ assets.
While Malta legalised medicinal cannabis in 2018 and revised its cannabis laws for recreational use late last year, this recent raid brought about confusion and many loopholes in the country’s drug laws. The difference of what may be normal medicinal cannabis and not high THC cannabis may indicate that there is a lack of training and understanding of these laws, both by the police force as well as the office of the Attorney General.
ReLeaf, a community-based NGO that seeks the regulation of Cannabis in Malta through safe and sensible policies, was appalled to read that a family doctor with over 15 years of medical practice has been arrested and charged for trafficking cannabis with less than 0.2% THC.
‘This is a worrying development and clearly reflects a disjointed approach between what the law aims to achieve and realities on the ground. This is especially important when considering that the law, for the first time, established that it is THC the cannabinoid which is under restriction, whereas other cannabinoids, such as CBD, are outside the objectives of the law, hence outside police jurisdiction.
One has to point out that this act is modelled on the UN drug control conventions, specifically prohibiting substances with a mind-altering effect and therefore having a potential for abuse. Nonetheless, a product, be it in the form of flowers, oil or hash, with a THC content of less than 0.2%, and therefore producing NO mind-altering effects, is outside the scope of the control conventions. This has been established by the European Court of Justice back in 2020.
We remain baffled, saddened, yet not broken by these heinous and draconian tactics. ReLeaf Malta will continue to follow this case closely, and expresses solidarity with Dr Andrew Agius and his family during these testing, and unjust times.’
Conclusion
The results of this court case may well set the bar to be used in the coming years over similar cases and how the courts will approach low THC and medicinal cannabis importation and how it will treat doctors in the field.
What are your thoughts on the current law reforms? Do you think that the laws are proving to be confusing in cases such as this one? We would love to know what you think! Voice your opinion in the comments below!