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Angela Watkinson (Upminster) (Con): The clause relates to the supply of a controlled substance by a person who has attained the age of 18. However, it does not cover the supply of such a substance by someone who has not attained that age. We know that when pupils in schools have been tempted into drug use, it is common for them to sell on their surplus to their friends, thereby creating more and more people with a drug habit. Will the Minister tell us how the provision relates to people under the age of 18?
Caroline Flint: With the indulgence of the House, I will deal with that point, but I do not want to lose sight of the Opposition amendments. As the hon. Lady is aware, we had a discussion in Committee on that issue. We have to decide whether we accept that the law contains procedures that recognise how we might deal with under-18s in terms of sentencing, and how they are dealt with by different agencies, compared with over-18s.
There are enough examples of how we try to deal with young offenders, but that does not mean that we excuse for one moment the activity of someone under 18 who might be supplying drugs. That will be an offence for whichif they are caught and there is evidencethey can be charged. We had a discussion on this in Committee, and I do not think that applying to someone who is himself identified in law as a vulnerable person the aggravating factor of supplying to a vulnerable person is the right approach to take.
Do not forget that that is an aggravating factor linked to a charge for an offence. In dealing with under-18s, it is important that we charge them for the offence, but we should also consider what their involvement is and how they got involved. We should consider them as we do in other areas of lawin a way that understands that their actions are wrong, but at the same time they are young people, and perhaps even children. We need to deal with
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that appropriately. We have had that discussion, and although we may disagree, I think this is the right approach. So we are talking here about people over the age of 18 in respect of whom we believe such issues should be taken into account when they are involved in dealing activity.
A dealing site may be close to a school as the crow flies, but might be separated from it by a railway line that is not bridged for some distance from the school, and may therefore, for practical purposes, not be in its vicinity. Conversely, a dealing site may be some distance from the school using conventional footpaths or roads, but be easily accessible by less conventional means. In my constituency, young people going to school do not necessarily follow the paved route. They cut across fields and parks, and that becomes their normal route to school. If someone wanted to be involved in dealing activity, they might choose such an area for that.
Amendment No. 3, in attempting to define "in the vicinity", illustrates the dangers of doing so. As I have said, distance may not always be the only determining factor. If we were to go for a fixed distance, from what point on the school premises would a mile be measured, and who would have the authority to carry out that measurement? How would passengers on a bus know when they were within 5 miles of a school? Furthermore, the amendment would catch only buses provided by an education authority, but not public transport used by pupils on their way to or from school.
In addition, if there were active dealing on a school buswe might presume that, apart from the driver, most of the people on it were under 18, and it might be the driver who was dealingthat would be caught by the aggravating factor of dealing to vulnerable people, which means those under 18. We also know that young people use other forms of public transport, such as trains or buses, and children could be exposed to dealing activity from which we need to protect them near a local train station, which is the dropping-off point for those making their way to school, or on buses.
We are talking about situations in which the young person is not directly engaged, but is exposed to the risk. We all want to try to deal with those situations, when young people experience those things around them. We need to consider how to ensure that they are seen as not acceptable and not a normal part of everyday life.
Paul Flynn (Newport, West) (Lab): I am following my hon. Friend's argument carefully. We would all agree that we do not want our children or grandchildren to be exposed to drug pushing, but as she is referring to the vicinity of schools and colleges, the route to school for all children and the means of transport to school, it seems to me that this measure will cover an enormous area. Has she calculated the percentage of urban areas that the ban will cover? It strikes me that a very small area would be excluded from it.
Caroline Flint:
Well, some Members might be quite happy about that. The facility will be linked to the issue of risk to young people and children. Rather than having carte blanche, the risk of young people being exposed would have to be set against the activity and where it was located. Because those issues are complex, we feel that that is a matter for the courts to decide. I will
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refer later to some other pieces of legislation in which "in the vicinity" is also used to provide coverage in a certain area.
The way forward is to allow the courts discretion to decide what constitutes "in the vicinity", not to remove that discretion as the amendment tabled by the hon. Member for Chesham and Amersham suggests. Following the Committee stage, I sought further legal advice on the matter, and I am 100 per cent. certain that it is not sensible to provide further definition of the term in the Bill.
As I said, there is legal precedent for that approach elsewhere. For example, the term is used in section 42 of the Criminal Justice and Police Act 2001, under which a constable may give a direction to a person who is present outside or "in the vicinity" of someone's home if he reasonably believes that the person is there to represent something to the resident or another person or to persuade such a person to do or not to do something. I have experience of that in relation to animal rights extremists setting up a vigil outside someone's home. The police have used that direction widely, even when someone is not in the particular street or outside the person's home but has been there and in that vicinity previously.
The term "in the vicinity" is also used in section 60AA of the Criminal Justice and Public Order Act 1994 as inserted by section 94 of the Anti-terrorism, Crime and Security Act 2001. Section 60AA provides police with the power to require persons to remove disguises in certain places and under certain circumstances. Section 60AA(8) provides that a member of the British Transport police has those same powers in any locality "in or in the vicinity" of any police premises and in police premises themselves. We have done a search of case law to show that the term "in the vicinity" was used.
It is right that we should indicate the intention behind the clause, and the Home Office will draw up, consult on and issue guidance indicating particular concerns in that regard. I would like guidance to indicate that distance from the school is the key but not necessarily the determinative factor, and that the practical accessibility of a location to young people is an important factor. The risk posed by drug dealing to young people when attending schools is a primary concern, premises such as cafés and private dwellings that are in the vicinity of schools could be covered, and other points in the vicinity of a school at which young people gather regularly, such as a bus stop on the way to or from school, are also a concern. As for whether a place is one at which young people gather, we should also consider informal routes that they may take to the school premises, which would include public footpaths and roads and, dare I say it, trespassing across private land. Transport used by schoolchildren should also be caught within the definition when such transport is in the vicinity of a school.
Lady Hermon:
May I clarify, for my peace of mind, one point that bothers me? We are considering clause 1 on aggravated supply of controlled drugs. Is my interpretation of that clause correct that if a defendant is able to argue successfully that a location is not "in the vicinity" of school premises, that affects sentencing only? In view of the wide interpretation that the Minister has given, and her confirmation that it applies to
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Northern Ireland, for which I thank her, will she confirm that even if that argument is successful and a court does not hold that such a location is in the vicinity of school premises, it is still an offence for a defendant to supply controlled drugs?
Caroline Flint: Certainly it is still an offence for someone to supply controlled drugs. Such a person would be arrested and, I hope, charged with a drug offence, and it would be for the courts to take that into consideration as an aggravating factor, along the same lines as the aggravating factor of using children as couriers. The purpose is to focus the minds of those in our legal system on the importance of these issues, which should be reflected in sentencing. In Committee, the hon. Member for Orkney and Shetland (Mr. Carmichael) raised the issue of transparency, and I have agreed to write to the Sentencing Guidelines Council about how aggravating factors apply to sentencing. I felt that he had made a fair point.
Before issuing guidance my officials have already begun to consult Adfam, Turning Point, DrugScope, the Association of Chief Police Officers and the Youth Justice Board. During initial discussions with a number of those bodies, none of them supported a definition of "vicinity" in the Bill; they felt that that should be covered by the guidance.
As for amendment No. 4, I understand the desire to protect young people from dealers operating in the vicinity of places other than schools, but feel that there are real practical difficulties in establishing what constitutes such a place. What constitutes a congregation of young peoplethree or 30? Moreover, as I have said, the current sentencing guidelines list, among other aggravating factors, "deliberately targeting vulnerable victims". I believe that that gives courts discretion to deal with young people appropriately.
Unfortunately, as I said earlier, we live in a time when drug dealing can take place in any location where there are young people. The aim is to come up with a focused practical measure that can be enforced in a way that does not dilute what we are trying to do. That is why we have singled out schools for the purposes of this offence.
Amendments Nos. 5 and 6 would require a court to identify an aggravating factor increasing the seriousness of an offence of supplying drugs when a person commits the offence in the vicinity of a school at any time. As we have acknowledged, schools are not the same as they were in our time, when the school day lasted from 9 am until 3.30 or 4 pm. I think we are all pleased that schools are now live buildings that operate outside the normal school day and are open to the wider community, and we have covered that in the Bill.
Again, however, we do not want to dilute the aggravating factor. On occasion a school may be closed, with no one on the premises. To apply the aggravating factor when young people are not exposed would, in my view, undermine the clause. We should not forget that someone dealing in drugs outside a school at any time is liable to arrest and prosecution, but we do not think it appropriate for a court to apply the aggravating factor to those dealing at 2 am, when children are not using the premises. There must be a link with the risk of exposure.
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Amendments Nos. 5 and 6 go beyond the intention of the clause. Because the clause catches all who deal in the vicinity of schools, the amendments would establish an aggravating factor when an adult dealer supplied drugs to another adult in the vicinity of a school, even if he did so when the school was shut and no young persons were present and exposed to risk. We must not lose the focus of the clauses.
As for Government amendment No. 12, clause 1 makes it an aggravating factorwhich a court must take into account when deciding the seriousness of a drug supply offenceto use a person under 18 as a courier. I know from what people have told me that there is concern about the use of children by adults wishing to avoid prosecution, and I think that that is terrible. We had a productive discussion in Committee, and I agreed with a number of points that were made.
New section 4A(6) of the Misuse of Drugs Act 1971, which clause 1 inserts, provides that a person uses a courier in connection with an offence
In Committee the hon. Member for Orkney and Shetland tabled an amendment that sought to strengthen the word "requests", to make it clear that all acts of both commission and omission that a dealer might undertake in order for a young person to act as a courier were considered to be an aggravating factor. I acknowledged the merit of what the amendment was intended to achieve, and I hope that our amendment will achieve the same objective. It would replace "requests" with "causes or permits", so that the clause would catch not just any positive act that a dealer might commit to force or persuade a young person to act as a courier, but a dealer who accepted an offer from a young person to act as a courier. In Committee, we discussed circumstances in which young people might wish to ingratiate themselves with, say, someone with a fast car, and might offer to be used in that way. This provision would capture that possibility, and I pay tribute to the hon. Gentleman for raising the matter in Committee.
On Government amendments Nos. 13, 14, 15, 16 and 18, again, the Bill deals with young people under the age of 18 who are used as couriers. New section 4A, which is inserted by clause 1, provides that for this purpose, drug-related cash is cash obtained in connection with the supply of a controlled drug or intended to be used to obtain a controlled drug. New section 4A(8) defines cash as including inter alia notes and coins and any monetary instruments specified by order made by the Secretary of State.
I pay tribute to the hon. Member for Chesham and Amersham, who tabled an amendment designed to have the effect of broadening the definition of cash to ensure that all possible forms of payment or reward for drugs received was caught. She argued that the definition in the Bill may not recognise the reality of the situation, because payments may be made, for example, in the form of consumer goods, CDs or clothes, as well as cash and monetary instruments. I acknowledged her argument and I hope that she will agree that we have
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come back with a suitable amendment to replace the term "drug related cash" with the term "a drug related consideration". That is further defined by amendment No. 14 as
We had a discussion about "a consideration" in Committee as well, and I have sought and obtained definitive legal advice. We are clear that it would not be appropriate to define the term "consideration" in the Bill. I understandas a lawyer, the hon. Member for Orkney and Shetland will probably know better than methat it is a standard legal term that should properly be interpreted by the courts. It is used without definition in much other legislation, such as the Criminal Law Act 1967, the Customs and Excise Management Act 1979 and the Criminal Attempts Act 1981. To attempt to define "consideration" would call into question some of those other pieces of primary legislation.
Amendment No. 15 widens the definition of "a drug related consideration" to cover that which is intended to be used in connection with obtaining a controlled drug as well as that to be used to obtain a controlled drug. The detailed definition of cash in new section 4A(8) is therefore no longer required, and amendment No. 16 deletes it. The new section contains a power for the Secretary of State to make an order specifying monetary instruments that fall within the definition of cash. That is no longer needed, and amendment No. 18 deletes it.
Amendment No. 13 and consequential amendments Nos. 14 and 15, 16 and 18 taken together have the effect of ensuring that all forms of payment or reward in exchange for drugs are covered by the clause. I commend the Government amendments to the House and I hope that on the basis of my explanation, Opposition Members will not press their amendments.
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