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Mr. Carmichael: The hon. Lady speaks about approaches taken by the CPS and the police in different parts of the country. What response did she
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get from the Lord Advocate and the Solicitor-General, who were presumably consulted on that matter as it relates to Scotland?
Caroline Flint: I will seek the information that the hon. Gentleman needs.
I come to my next point. We sought advice on the issues surrounding the burden of proof. I will explain why we cannot accept the amendment tabled by the hon. Member for Chesham and Amersham and why the measures we provide offer greater scope for conviction for supply offences, while working within a framework that recognises that in some cases there could be a reasonable offence.
The purpose of the clause is to achieve greater consistency throughout the country when a defendant is charged with possession with intent to supply and clarify the point at which the quantity of drugs in a person's possession becomes above and beyond that reasonably held for personal use. We hope that there will be increased success in convicting dealers and that the proposals will contribute to disrupting their activities. As well as arrests and convictions, part of what we trying to achieve through looking at different ways of law enforcement is disrupting criminal activity. Anything that we can do to make street dealing harder is to be welcomed, whether it is done through the use of CCTV or other measures. We are trying to tighten the net around these individuals.
The amendment would prevent a defendant from being able to rebut a presumption that he intended to supply the drugs in question where evidence is adduced that raises an issue or argument in the case whether or not he intended to do so—for example, if the person is a known drug user. The amendment would require a court to do so, irrespective of considerable evidence raised to the contrary.
A person from a rural area who comes into a city area to buy their drugs might want to purchase larger quantities than we might consider normal for their own consumption. When we were working this matter through, we considered whether we should go down the route suggested by the hon. Lady or use our preferred option in the Bill. We felt that there could be circumstances where there needed to be an opportunity for a defence.
Mr. Carmichael: I am grateful to the Minister for giving way. She has been generous with her time. When she says that it is for the accused or the defendant to raise an issue or arguable case—the latter words to do not appear in the Bill—is that the same as raising a reasonable doubt on the charge outlined in section (5)(3), the question of intent to supply, or is it different?
Caroline Flint: I will look into that question and get back to the hon. Gentleman. If I cannot answer him this afternoon I will write to him with clarification.
The effect of the amendment would be to require a court, irrespective of considerable evidence raised to the contrary, to assume that a person intended to supply the drugs in his possession solely on the basis of the amount of drugs in question. The intention may be
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to create a reverse legal burden of proof, which would mean that the defendant would have to prove beyond reasonable doubt that he did not possess the drugs with intent to supply. We have taken advice on the matter and while we believe that we need to deal with loopholes that have been brought to our attention, the amendment would not be compatible with article 6(2) of the European convention on human rights, which enshrines the presumption of innocence.
Mrs. Gillan: I tabled the amendment because a fear was triggered in my mind by a briefing sent to us by Transform. That organisation felt that much of the debate was theoretical because its legal advisers had advised that the ability of prosecutors to activate a presumption of guilt for intention to supply is severely limited by the wording and technical detail in the Bill, and specifically by new subsection (4B), which I am seeking to delete as the vehicle for this debate. The advisers said that the caveat in new subsection (4B) means that if evidence is adduced—they have gone to a dictionary for the meaning of adduced, which is:
''To mention a fact as a supporting reason, piece of evidence etc.''—
the presumption of guilt of intent to supply will not be triggered.
Defence lawyers will inevitably use the caveat, which was included to make the Bill compliant with human rights legislation, as the Minister confirmed, to avoid the presumption by producing evidence that could even be in the form of a simple testimony from the defendant. The effect will be that the measure, which appears to be tough and which I support, will rarely if ever be deployed. Will the Minister answer that specific point, because it was the point of anxiety raised in my mind when I originally read the briefing?
Caroline Flint: My understanding is that although the clause will allow a defence for an individual against presumption of guilt, it goes further than we have ever gone in that the person will have to give good reason as to why the presumption should not apply. The prosecution will still have to make a case against the person in court. I would hope that, in most cases, the amount of drugs on a person would not be the only piece of evidence. Many such individuals are charged with possession, so other information and intelligence would form the case against them.
I shall look into what the hon. Lady said in more detail. She is quoting from the Transform briefing, which I do not have in front of me, but I will have a look at it and compare notes. I do not accept her amendment for the reasons that I have outlined. The measure strengthens the opportunities to charge people with intent to supply. That loophole has been brought to our attention, but when we have shared concerns with the police and others, they have been happy.
The Lord Advocate and Solicitor General for Scotland are also happy with the clause. The hon. Member for Orkney and Shetland raised an issue about what ''raises an issue'' actually means. I
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understand that the term was used in the House of Lords this year in the case Sheldrake v. the Director of Public Prosecutions, Attorney-General's reference No. 4 of 2002—I shall look that up in whatever reference book is necessary. Apparently, the House of Lords refers to it in terms of raising an arguable case. That sounds like a lot of legal information to me, which the hon. Gentleman may be more aware of.
Mr. Carmichael: Does the hon. Lady believe that it is appropriate to import into Scots law, through a United Kingdom statute, a term that is a term of art in England only?
Caroline Flint: I will take some advice and come back to the hon. Gentleman on that one so that I am absolutely clear about exactly what I may or may not be agreeing to.
The measure has a number of advantages. Not all defendants will be able successfully to raise the issue. It will send out a clear message to dealers, whose current dealing methods may be disrupted. While helping to understand the issues around setting thresholds, I hope that it might also improve consistency as to when those in possession of drugs are charged with intent to supply. We know that the police see the approach as being worth while; in some areas, as I said, the police have agreed informal thresholds with the CPS. We are seeing if we can give a bit more formality to that, to get more forces working to tackle individuals in this way. Therefore I call upon the hon. Lady not to press her amendment.
Mrs. Gillan: There is no doubt that this proposed reversal of the evidential burden raises some legal problems. In article 6 of the Human Rights Act 1998 it is stated clearly:
''Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.''
If the clause is enacted, I need to make sure that its apparent reversal of the burden of proof—meaning that individuals are presumed guilty until they prove themselves innocent—does not fall foul of that in any way.
I return to the term ''adduced'', which I know the hon. Member for Orkney and Shetland is particularly hung up on, as well as the phrase ''to raise an issue''. Again, we seem to be coming back to language. Yet that is, after all, what scrutiny of legislation is all about—to examine the language and to examine carefully whether it may work in the way we intend, or against us. I am not entirely unconvinced that the brief I have received from Transform is correct. I will withdraw this amendment on the understanding that, once again, the Minister will look at this area, as I still have worries about it despite what I heard her say. It is a very tough measure, which I approve of—and I want to ensure that it bites.
Mr. Carmichael: On this question of workability, it is perhaps appropriate that I explain a little further my concern about the importing of this English term from the Sheldrake case into Scots law. The decision in Sheldrake, albeit a decision of the House of Lords, will not be binding in a Scots court. It is still open, then, to
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Scots courts to come up with their own construction of what would be meant by this term—which may be different. That, of course, is always open to the courts, but where we already have an established body of case law on terms that are not novel to Scotland—and when this part of the Bill is to apply UK-wide—why not use it? Why not just say ''led'' instead of ''adduced'', and say ''establish a doubt'' instead of ''raise an issue''?
Mrs. Gillan: That is a good intervention with which I can agree. This just reinforces that we would like the Minister to reconsider the subsection and, if possible, write to us during the course of the passage of the Bill—before Report and Third Reading. I know that will put a burden on her and her office at a time when the legislative burden is huge, but it is important as we have some severe doubts about the efficacy of the clause. We would like to see it work and therefore would particularly appreciate the Minister giving us that undertaking. I will give way, if she is willing to give it.
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