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Lord Hodgson of Astley Abbotts: My Lords, I accept that there is a wide range of mental health conditions, not all of which would permit the person to escape from the provisions of the clause. It is not a complete let-off. As the noble and learned Lord kindly remarked, the amendment was drafted to give the court discretion in such cases.

I am grateful for the emphasis that the noble and learned Lord placed on the phrase "reasonably practicable" and for the explanation that he gave of the construction that is placed on those words. In the light of his comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Appeal by prosecution]:

[Amendment No. 21 not moved.]

Clause 18 [Drug users: restriction on bail]:

Lord Goldsmith moved Amendment No. 22:

On Question, amendment agreed to.

Baroness Walmsley moved Amendment No. 23:

    Leave out Clause 18.

The noble Baroness said: My Lords, I think that we can assume that the Government's purpose is not simply to extend the grounds for refusing bail—although clearly Clause 18 does that—but to encourage class A drug users to undergo treatment. We all recognise that a large proportion of property crime is attributable to misuse of class A drugs, such as heroin, cocaine and crack. We fully support the policy that underpins Clause 18; that is, to encourage drug misusers to undergo treatment. However, we want such treatment to lead these people out of crime and not into further crime by breaching an order.

We know that a large percentage of those who test positive for class A drugs do not comply with drug treatment orders, thus sending them back into court for re-sentencing. Therefore, it would be more fruitful to look at why that is, rather than to force more people into treatment on pain of failing to obtain bail. The House of Commons Home Affairs Select Committee expressed concern about the practicality of enforcing such conditions against drug misusers who consent to the bail conditions, but then fail to comply with the treatment.

In Committee, the Minister assured us that the provisions under Clause 18 will apply only in areas within which such treatment is available. Your Lordships may recall that we were informed that in one police area there is an eight-month waiting list for detainees willing to submit to such treatment. I continue to have concerns about that. The noble and learned Lord the Attorney-General promised to write to me about any improvement in the availability of

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high-quality drug treatment. I do not believe that I have received such information. I therefore remain sceptical about the practicality of the provisions.

The problem is that there is little confidence among drug users in the efficacy of many of the treatments available. Only 7 per cent of those who tested positive in a pilot in north-east London agreed voluntarily to any form of referral for assessment or treatment. In view of the lack of confidence in the treatment, it is not right to make it a condition of bail that people subject themselves to it.

Secondly, according to Liberty, there are human rights issues here as well as practicalities. Your Lordships may recall that in Committee, the noble Lord, Lord Maginnis of Drumglass, reminded us of the human rights of the victim, whom drug addicts might mug, steal from and perhaps injure while seeking property to sell in order to buy drugs. But we do not do any favours to those potential victims if we flagrantly forget the human rights of those accused of such crimes.

According to Liberty, issues are raised under Article 5 of the Human Rights Act 1998; that is, the right to liberty and security of person. It does not fit into one of the permitted exemptions under Article 5.1.c, although detention of drug addicts is permitted under Article 5.1.e. We would dispute that that justification applies to a person detained pending trial. The Government's presumption seems to be that drug users commit offences, therefore anyone who refuses treatment would be likely to commit offences while on bail and, therefore, should be refused bail. But, every bail application should be considered on a case-by-case basis.

In Clause 18, the introduction of a presumption against bail places the burden of establishing an entitlement to bail on the detained person rather than on the state. That has been considered by the Law Commission in its publication, Bail and the Human Rights Act, which concluded that such a reverse burden could breach Article 5.3. Liberty also argues that Clause 18 may raise issues under Article 8 of the Convention on Human Rights—that is, the right to respect for privacy and family life. There will be an obligation on a person, who has not been convicted of any offence, to undertake drug treatment to avoid remand in custody.

I appreciate that the Government are concerned that there is a link between crime and drug use, which I accept, and that they are promoting drug rehabilitation. However, I do not accept that applying a sanction that will involve the loss of liberty is an acceptable way of promoting such a policy, particularly in view of the climate of availability and quality of drug treatment services in this country at present. I beg to move.

Lord Renton: My Lords, it would be impossible for the Government to accept the proposal that this clause should be omitted from the Bill. It is a rather long clause, with very important amendments to previous legislation. In passing, perhaps I may say that a very large proportion of the Bill consists of amending

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legislation that has been passed before. I hope that one day there will be some consolidation of this Bill and all the previous legislation dealing with criminal justice. That is necessary for the achievement of justice. If our law is in a state of continuous cross-reference, with all the confusion that that can cause, it will be difficult for justice to be achieved. I have some sympathy with what the noble Baroness said in moving that Clause 18 be omitted, but, quite frankly, that would be chaotic.

7.30 p.m.

Lord Goldsmith: My Lords, the noble Baroness, Lady Walmsley, recognises that the Government have a concern about the link between offending and drug use. The Government do not just have a concern about it; they are absolutely confident that there is a very strong link between drug use and offending. I mention again what I mentioned in Committee: research demonstrates that the use of heroin or crack cocaine is associated with higher levels of offending than offending by non-drug users—nearly 10 times as much.

Anyone involved in law enforcement—for example, the police and others involved in the criminal justice system—is well aware that time and again people charged with offences have a drug problem. Furthermore, the drug problem often leads them to further crime in order to feed that habit. Therefore, sadly, there is every chance that many offenders, if released on bail, would do exactly that.

The Government propose that where an adult who has tested positive for a specified class A drug but has refused to have his dependency assessed—or, having been assessed, refuses to undergo relevant follow-up action—is charged with an imprisonable offence, that would have a very significant consequence for bail. It does not mandate that there would be no bail. New paragraph 6A, inserted by subsection (4) of the clause, makes it clear that the court should not grant bail,

    "unless the court is satisfied that there is no significant risk of his committing an offence".

If there is no such significant risk of committing an offence, the fact of the drug dependency or the failure to undergo treatment will not count against the person for bail.

This is a very serious issue. The noble Baroness is right, too, to indicate that the Government do not want just to say that the consequence is that bail would be refused, but also to give encouragement to people to undertake testing and appropriate treatment. We would much rather see people who are suffering from drug abuse being helped to get rid of that abuse by helping themselves and helping society as a result.

So there is a benefit in the provision: it will divert drug-misusing defendants into assessment and the appropriate follow-up assistance. It is important to take the opportunity to encourage drug-using offenders into treatment where their drug use can be addressed. I would hope that all noble Lords agree that that is an important and proper objective.

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I should like to deal with the two issues raised by the noble Baroness. First, I must apologise for the fact that she has not received the letter that I promised her on the last occasion. There is nothing to say other than that I am very sorry this has happened. Only today did I learn that she has not had it. Perhaps I may set out now what will be in the letter, which will be sent very shortly. In that way I can deal with the particular points raised in relation to the availability of treatment.

The noble Baroness generously recognised that, on the last occasion we discussed this, I had said that the provision can apply only in areas where the court has been notified that arrangements for conducting assessments and providing suitable follow-up have been made. Further, they must not have been withdrawn in the area in which the person would have been resident if granted bail. That is made clear on the face of the Bill. The provision will not be brought into force in a given area unless the relevant assessment and follow-up is available. It is likely to be piloted in selected court areas, which will enable us to see how it is working.

We recognise that more treatment capacity is needed. We have already reduced waiting times and increased the numbers in treatment. The target is to double the number of people in treatment by 2008 to 200,000 per year, which is over the 1998 baseline. Direct annual expenditure on drug treatment services, including within prisons, will rise from £503 million in the financial year 2003–04 to £573 million from April 2005. That includes mainstream spending, prison treatment and pooled budgets.

We also need to ensure that additional investment in drug treatment is translated into additional capacity at the local level. Capacity is being strengthened in the communities most affected by drug misuse, drawing drug misusers into treatment through frontline health services, community outreach and using every opportunity presented by the criminal justice system.

The National Treatment Agency is working with drug action teams to ensure that drug misusers in all areas have access to the full range of treatment. We are also working to further reduce waiting times for treatment. The National Treatment Agency's programme to reduce waiting times is yielding significant improvements in access to services across the country. Waiting times for drug treatment services are being reduced in line with NTA targets. The average waiting time is currently 4.2 weeks for in-patient detoxification services and 4.5 weeks for residential rehabilitation services.

The NTA is also undertaking significant work to plug gaps around the country, thus ensuring that everyone, irrespective of their route of referral, has access to treatment where required, and that the treatment is available quickly and consistently. I can also say to noble Lords that Ministers at the highest level in the Government are concerned to ensure that we are in a position to provide the treatment that the noble Baroness rightly says should be made available as widely as possible around the country.

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With my apology for not having given the noble Baroness that information before, I hope that at the least it provides some reassurance that the Government are serious about this matter. Perhaps I may repeat that these provisions will not apply except in areas where the treatment and assessment services are available.

I turn now to the human rights issues, which comprise the second point made by the noble Baroness. I am aware of the two points raised by Liberty. I do not accept them. First, I address the proposition that the clause does not fit into one of the permitted exceptions under Article 5(1)(c) of the ECHR. The exception under Article 5 to which this does relate is that which refers to detention considered reasonably necessary to prevent a person committing an offence. We have in fact amended this approach in line with the report of the Law Commission, to which the noble Baroness referred, in order to make it clear that it focuses on the likelihood of further offences being committed, which is a permitted exception. The issue is not simply the fact of drug use; it is the fact of drug use which leads to further offences being likely. That is why there is the exception to which I drew attention before.

So, there being a link between drug addiction and re-offending, which I suggest that all those involved in the criminal justice system and noble Lords in this House would accept without hesitation, we can focus on the perfectly proper exception: whether further offences are likely to be committed.

The other point raised by Liberty relates to Article 8 of the convention, covering the right to private and family life. I understand that that is in the context of a defendant being required to undergo a drug test to obtain bail. As noble Lords will know, Article 8 is one of those which is subject to limitations. Put broadly, those limitations are appropriate in a democratic society for the protection of the rights of others or other perfectly proper purposes. I have no doubt that the requirement that a person should submit to a drug test in order to be in a certain position so far as bail is concerned is a proper requirement, justified under Article 8.2.

Perhaps I may repeat what I said in Committee: these provisions are justified by the need to balance the protections of society against the risk of re-offending, with appropriate incentives for treatment for those who can benefit from it. While I understand the points that have been made, I remain of the view that Clause 18 is extremely important both for the public and drug users. Further, I respectfully agree with the observation made by the noble Lord, Lord Renton, that removing this clause would lead to considerable difficulties in any event.

I also take the noble Lord's point about justice requiring clarity in legislation. Of course he is right to point out that many of the provisions in this Bill involve amendment to previous Acts. It has been something of a trend for successive administrations to seek to amend criminal justice legislation in order to achieve better justice and better protection for our citizens. However, I take his point about the complexities. Of course I can

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give absolutely no undertaking as regards finding time to introduce a consolidation Bill, but his point has been noted.

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