Joint Committee On Human Rights Seventh Report


3 Drugs Bill

Date introduced to the House of Commons

Current Bill Number

Previous Reports

16 December 2004

House of Commons 55

None

Background

3.1 This is a Government Bill, introduced in the House of Commons on 16 December 2004. The Prime Minister has made a statement of compatibility with Convention rights under s. 19(1)(a) of the Human Rights Act 1998. Explanatory Notes to the Bill have been published, but merely recite the fact that a statement of compatibility has been made.[51] The Bill received its Second Reading on 18 January and completed its committee stage on 3 February 2005. Its remaining stages in the Commons are scheduled for 22 February 2005.

The effect of the Bill

3.2 The Bill contains miscellaneous provisions in relation to drugs.

3.3 Part 1 provides for certain circumstances[52] to be treated as aggravating factors in respect of the offence of supply of a controlled drug,[53] and creates a presumption of intent to supply where a person is found to be in possession of an amount of controlled drugs to be prescribed by the Secretary of State by regulations.[54]

3.4 Part 2 extends police powers in relation to drugs, for example by providing that adverse inferences may be drawn where a person refuses without good cause to consent to an intimate search,[55] that a police officer may authorise an X-ray or ultrasound scan of a person suspected of swallowing a Class A drug, and that adverse inferences may be drawn from a refusal to consent to such an x-ray or scan. It also provides for drug testing of persons after arrest, and for the extended police detention of suspected drug offenders.[56]

3.5 Part 3 of the Bill provides the police with a new power to require persons who have tested positive for Class A drugs to attend both an initial and a follow-up assessment of their drug misuse.

3.6 Part 4 provides for a new order, an Intervention Order, which can be made alongside an ASBO when drug misuse has been a cause of the behaviour that led to the ASBO being made.

The human rights implications of the Bill

3.7 The main human rights implications of the Bill are—

(1) whether the statutory assumption[57] that possession of controlled drugs above a certain quantity is possession with intent to supply it, is compatible with the presumption of innocence in Article 6(2) ECHR;

(2) whether providing for adverse inferences to be drawn where a person refuses without good cause to consent to an intimate search or an X-ray or ultrasound[58] is compatible with the right to a fair trial in Article 6(1) ECHR;

(3) whether compulsory drug testing on arrest, the power to require a person to attend an initial and follow-up assessment of their drug misuse and intervention orders requiring people to participate in specified activities to address their drug misuse are compatible with the right to respect for physical integrity and private life in Article 8 ECHR.

Explanatory Notes

3.8 Once again we regret the need to have to point out the inadequacy of the Explanatory Notes in relation to the Bill's implications for human rights. The Notes merely recite the fact that a statement of compatibility has been given. They do not identify the Convention rights engaged nor provide any reasoning in support of the bald statement of compatibility. This does not inspire confidence that human rights compatibility has been a matter of central concern in the formulation of the policy and the drafting of the legislation.

Statutory assumption of intent to supply (clause 2)

3.9 Clause 2 of the Bill introduces a reverse burden provision, i.e. a statutory assumption that one of the ingredients of an offence is proved, in relation to the offence of possessing a controlled drug with intent to supply it to another.[59]

3.10 In proceedings for the offence of possession with intent to supply, if it is proved that the accused was in possession of an amount of a controlled drug that is greater than the amount prescribed in regulations made by the Secretary of State, the court or jury must assume that he had the drug in his possession with intent to supply.[60] The statutory assumption does not apply if evidence is adduced which is sufficient to raise an issue that the accused may not have had the drug in his possession with intent to supply it.[61]

3.11 Reverse burden provisions such as this engage the presumption of innocence in Article 6(2) ECHR. Reverse burdens are of two types: legal, which is where the burden is placed on the accused to prove that a particular defence applies to him on a balance of probabilities; or evidential, which is where the accused must adduce enough evidence for the defence to be an issue, but it remains for the prosecution to disprove the defence.

3.12 In R v Lambert the House of Lords held that, in order to be compatible with Article 6(2) ECHR, the burden of disproving knowledge on a charge of possessing a controlled drug with intent to supply[62] is required by s. 3 of the Human Rights Act 1998 to be read as imposing only an evidential burden on the accused.[63]

3.13 The new provision inserted into the Misuse of Drugs Act casts an evidential and not a legal burden of proof on the accused: it does not require the accused to prove that the defence applies to him on the balance of probabilities, but requires him or her to adduce evidence sufficient to raise an issue that he or she may not have had the necessary intent.

3.14 We are unable to reach a definitive view on compatibility because the prescribed amount which triggers the applicability of the statutory assumption is not on the face of the Bill but will be contained in regulations to be made by the Secretary of State.[64] Bearing in mind the seriousness of the offence of possession with intent to supply, it will be important that there is a sense of proportion in the amounts which are prescribed by regulation as triggering the statutory assumption.

3.15 Assuming that the regulations prescribe amounts which are proportionate to the seriousness of the offence, we are satisfied that the reverse burden provision in clause 2(2) is compatible in principle with the presumption of innocence in Article 6(2) ECHR because it imposes only an evidential burden on the accused.

Drug offence intimate searches (clauses 3-6)

3.16 Clause 3 of the Bill amends the provisions of the Police and Criminal Evidence Act 1984 ("PACE") relating to intimate searches in relation to drug offences. Section 55 of PACE provides for an intimate search of a person where it is suspected that the person may have a Class A drug concealed on his person. Intimate searches of body orifices can be carried out without the need for the person's consent. Such intimate searches for drugs offences must be conducted by doctor or nurse in a hospital or clinic.

3.17 The Bill provides that such intimate searches for drug offences can only be carried out where the person concerned has given their consent in writing. It also provides for the person who is to be the subject of the search to be informed of the giving of the authorisation for such a search and the grounds for such authorisation, and requires that the authorisation, the reasons for the authorisation and the fact that the person concerned consented be recorded in the custody record. Clause 5 also amends PACE to make new provision enabling a police officer to authorise an X-ray or ultrasound scan of a person in police detention who is suspected of swallowing a Class A drug. Both clauses provide that, where the appropriate consent to an intimate search or an X-ray or ultrasound is refused without good cause, a court or jury may draw such inferences from the refusal as appear proper.

3.18 We welcome the introduction of the requirement that intimate searches for drugs may only be undertaken when the person to be searched has consented. Carrying out such searches without consent, as provided for under the present law, carries a very considerable risk of violation of the right not to be subjected to inhuman or degrading treatment under Article 3 ECHR, as well as an unjustified interference with the right to physical integrity under Article 8 ECHR.[65] Introducing a consent requirement therefore enhances compatibility with human rights.

3.19 Providing for the drawing of adverse inferences from a refusal to consent to an intimate search or an X-ray or ultrasound scan, however, raises a separate question of compatibility with the right to a fair trial in Article 6(1) ECHR. Permitting adverse inferences to be drawn in criminal proceedings from a refusal to consent to an intimate search, or to an intrusive procedure such as an X-ray or ultrasound scan, in our view engages the privilege against self-incrimination which has been recognised by the European Court of Human Rights as lying at the heart of the right to a fair trial.[66]

3.20 According to the Court's case-law, the drawing of adverse inferences from an accused's silence, or refusal to answer questions or to give evidence himself is not per se incompatible with the right to a fair trial in Article 6(1). The Court has clearly stated that an accused's silence, in situations which clearly call for an explanation from him, can be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution. To determine whether there has been a breach of Article 6, the Court will look at all the circumstances of the particular case, including the safeguards that are in place to ensure both that the person is fully aware of the consequences of staying silent and that excessive weight is not placed on the silence by the court or the jury. The need for safeguards is particularly acute where the question of guilt is determined by a jury.[67]

3.21 Whether the provisions in the Bill providing for the drawing of adverse inferences are likely to give rise in practice to breaches of Article 6(1) ECHR will therefore depend on the adequacy of these safeguards. None are set out on the face of the Bill. We therefore draw to the attention of each House the need for safeguards to be put in place to ensure that excessive weight is not placed on a refusal to consent to an intimate search or an X-ray or ultrasound scan, and in particular for the police to be required to ensure that individuals are aware of the consequences of refusing such consent, and that adequate guidance will be given by judges to juries.

Compulsory drug testing on arrest, compulsory assessments of misuse of drugs and intervention orders (clauses 7, 9-10 and 20)

3.22 A number of the remaining provisions of the Bill are avowedly designed to coerce drug users into drug treatment programmes. These include the power in clause 7 to carry out compulsory drug tests on arrest (on pain of criminal penalty) where a person has been arrested for a trigger offence, or any offence where a police officer of the rank of Inspector or above has reason to believe that drugs contributed to the offence; the power in clauses 9 and 10 to require people who test positive on such a test to attend both an initial and a follow-up assessment of their drug misuse, also on pain of criminal penalty; and the power to make "intervention orders" alongside ASBOs, requiring participation in drug treatment programmes or other activities.

3.23 All of these provisions engage the right to respect for private life in Article 8 ECHR. That right includes the right of a person with capacity to refuse treatment, regardless of whether that refusal is in their best interests. We accept the necessity for the criminal justice system to interfere with this right in certain circumstances in the wider interests of the public, for example by imposing bail conditions requiring treatment. On the information currently available to us, however, we have some concerns that these clauses have the potential to interfere with the Article 8 right to refuse treatment even before a person has even been charged with a criminal offence, let alone had the circumstances of their case considered by a court. Our concern is that people who have been compulsorily drug tested on arrest, are then effectively coerced, by threat of criminal sanction, into agreeing to treatment, before being charged with any criminal offence and without any prior judicial authorisation. We draw these matters to the attention of each House.


51   Bill 17-EN, para. 67. Clause and paragraph numbers in this report refer to the Bill and Explanatory Notes as Introduced to the House of Commons (Bill 17). Back

52   Supplying controlled drugs in the vicinity of a school when it is being used by children and young people, and requesting a child or young person to deliver controlled drugs or drug related cash in connection with the offence of supply. Back

53   Clause 1(1), inserting new s. 4A Misuse of Drugs Act 1971.Clause 1(2) provides that new s. 4A does not apply to an offence committed before it comes into force, as required by Article 7 ECHR. Back

54   Clause 2 Back

55   Clause 3(5) Back

56   Clause 7 Back

57   Clause 2(2) Back

58   Clauses 3(5) and 5(9) Back

59   Section 5(3) Misuse of Drugs Act 1971. Clause 2(2) of the Bill inserts new s. 5(4A)-(4C) into the 1971 Act Back

60   New s. 5(4A) Back

61   New s. 5(4B) Back

62   In ss. 5(4) and 28(2) and (3) of the Misuse of Drugs Act 1971 Back

63   [2001] UKHL 37, [2002] 2 AC 545 Back

64   New s.5(4C). Such regulations are to be made by affirmative resolution procedure: clause 2(3) Back

65   We note that the Court of Appeal in R v Secretary of State for the Home Department, ex p. Carroll, Al-Hasan and Greenfield [2001] EWCA Civ 1224 held that "squat searches" in prison, to search for items concealed in the genital area or the anus, although adversely affecting the dignity of a prisoner, are nevertheless lawful if conducted "for good reason". We doubt that this conclusion is correct as a matter of Convention law, and agree with commentators who regard the carrying out of intimate searches without consent as likely to involve breaches of Article 3 ECHR: see for example, Feldman, Civil Liberties and Human Rights, (2nd edn., 2002) at 412-416. Back

66   See for example John Murray v UK (1996) 22 EHRR 29 Back

67   See Condron v UK (2001) 31 EHRR 1 Back


 
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