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Lord Livsey of Talgarth: My Lords, Defra is a very wide brief, and I have been immensely impressed by the way in which the Minister has mastered that brief with great diligence. I thank him for that. It is obvious to us all that his breadth of knowledge on the great variety of topics that comes before us is very considerable. The whole House respects that, and I thank him for the assistance that he has given us—I
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speak from the Back Benches here—on all the Bills that have passed through in the time that I have been in here and before. Thank you very much indeed.
The Countess of Mar: My Lords, the noble Lord, Lord Whitty, and I have crossed swords and agreed on many different occasions, and I very much appreciate his helpfulness, kindness and generosity at all times—even though he has sometimes had me over a barrel, and I have had him over a barrel. I am very grateful.
Lord Greaves: My Lords, I have just learnt something that I did not know, and everything has become clear to me. Whoever wins the election on 5 May—even if it is us—the noble Lord, Lord Whitty, will no longer be a Minister and will have some spare time. I invite him to come and walk on some of our local moorland that could not be walked on before he steered his Bill through the House.
Lord Whitty: My Lords, many thanks to all of you, especially to the noble Lord, Lord Greaves, for that last point. I hope that we have done something to improve the quality of life, at least in some parts of the country. I have not received such widespread support from all corners of the House since I have been here. On my last-but-one day—the noble Baroness, Lady Byford, and I perform again tomorrow—I thank all noble Lords who have recorded their thanks—my thanks again to them.
On Question, Bill passed, and returned to the Commons with amendments.
Drugs Bill
7.21 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Bill be committed to a Committee of the Whole House.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 2 [Proof of intention to supply a controlled drug]:
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Dholakia: At Second Reading, I said that some aspects of the Drugs Bill caused us concern. I have no
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intention of seeking the opinion of the Committee on the matter, but I hope that the Minister, having listened to what I have to say, will be able to put on record some of my concerns.
Clause 2 is the one that I feel most strongly about. We raised the matter in the other place, and we do so here as well. Let me explain my reasons. I see a number of dangers arising from Clause 2. Of course, there is an advantage as far as the police are concerned. It may reduce the amount of police time spent in court. The clause is trying to reverse the previous practice, whereby, on a charge of intent to supply, police had to bring in expert witnesses, normally drug squad officers. They would give evidence on what would constitute dealer quantities and what inferences could be drawn from the possession of certain other articles. It is possible that in making a presumption we would avoid the attendance of drug squad officers, particularly in summary cases. Although I see the attraction of that, it may not necessarily be an advantage.
It is a big advantage to the drug squad officers to give evidence in court and to have the experience of being cross-examined by solicitors, advocates or barristers in a court. It keeps them sharp and allows them to build up expertise. I have spoken to a colleague involved in training police officers. In such cases, officers are then able to be used to much better effect on the big cases in the High Court, when it really matters.
The real danger that I can see in the clause is on the practical side. I foresee that, with the best will in the world, busy police constables working in the streets will come across cases in which there is a substantial amount of drugs but that substantial amount falls short of the level that is prescribed by the Secretary of State by order. In those circumstances, the police officers will think, "Well, it is not a dealer quantity according to the regulation, so I will just charge him with simple possession".
There is another downside. The provision will bring with it a laziness of attitude, which will mean that ultimately the community is not better served. I am concerned that if we operate with such a presumption, a busy constable in the street or a busy duty sergeant will take the attitude that, if the amount does not come up to the prescribed level, they will go for simple possession. By the time the matter is reported by the prosecuting authorities, the evidence that might have been there will no longer be there.
I do not think that the provision achieves anything new. Existing case law says that simple possession of a substantial amount of drugs is sufficient for a court to infer intent to supply. There will be real difficulty for the Government when it comes to establishing what level of drugs will be stipulated in the order. The Minister says that there will be different levels for different drugs, which makes common sense. There will be different situations in different towns and cities. If we get the level wrong, the traffic of cases through the courts will be affected enormously. Given the geographical distances, I cannot see how we would get the issue right.
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If there were a real lacuna or gap in the law, the measure might be worth trying. However, the law as it exists is perfectly capable of dealing with all the issues if the police and prosecution services are given sufficient resources to give each case proper consideration and preparation before it goes to court. I suspect that, if there is a problem, it stems from lack of resources, and the provision will not help that. If anything it might make it worse. It is for those reasons that I oppose the Question that Clause 2 stand part of the Bill.
Lord Mancroft: I share some of the concerns of the noble Lord, Lord Dholakia, which is why I added my name to the amendment on the Marshalled List.
I noted the comments that the Minister made at Second Reading about how it would be possible to prescribe the amount of different drugs. Having read those comments carefully, I still say that they are pretty confusing. It would be extremely difficult to say which amounts were relevant. The Advisory Council on Misuse of Drugs may be expert on drugs, but I am not certain it is expert on the amounts that people carry with them on the street. The issue is going to be difficult and will remain a grey area. We heard the Minister's comments on that.
The area of the clause that particularly worries me is the part that says:
There is no ability, if the amount prescribed is for some reason incorrect or the person is carrying an amount outside the prescribed limit for a reason that I cannot imagine now—perhaps none of us can—but there is no grey in this at all. There is no ability for the defendant to offer any mitigating circumstances. It is somewhat draconian to assume automatically that, because someone has a quantity of a drug, they are supplying it. I entirely understand what the clause is meant to achieve and recognise that there is some merit in it, but the drafting concerns me.
I have been trying all day to come up with a suitable analogy, without a great deal of success. The only one that I can come up with, though obviously it is not right, is that we could imagine that one of your Lordships were going to France in your car to buy a car-load of wine. Clearly, none of us can drink a car-load of wine in one go—or I should hope not, anyway. If the same standard were to be applied to that example as applies in this clause, the fact that you were carrying more wine than you could possibly drink in one sitting would automatically mean that somebody would assume that you were a wine merchant, as the Customs used to a year or so back, and that you were going to sell it. That is of course completely ridiculous, and the same problem is caused by the wording of the clause.
7.30 p.m.
Baroness Falkner of Margravine: My concern engages the diminution of the presumption of innocence, relating to Article 6.2 of the European Convention on Human Rights. As we said at Second Reading, this clause will effectively reverse the burden
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of proof for the offence, which means that the onus will be on the accused to prove that he did not intend to supply—that is, that he is not a dealer. Convictions for this offence generally attract considerably higher sentences than equivalent convictions for simple possession, and can also trigger the application of a minimum sentence on third conviction.
Proof of an intention to supply therefore has very serious consequences for a defendant. We believe that evidential presumptions of this type should rarely be used in criminal proceedings, since they can water down the criminal standard of proof. I am sure that the Minister is aware that the Court of Appeal of Northern Ireland has said that presumptions should not be used unless, having done so, the court would be left satisfied beyond reasonable doubt of the guilt of the accused. Justice suggests, in its briefing, that the House of Lords would take a similar approach should that be applied in England.
I refer to Liberty's briefing on the clause, when it says:
"Clause 2 undermines the traditional presumption of innocence at common law and due process rights under Article 6. Further, any alternative, human rights-compliant reading of the Clause would render it pointless. If an individual is to be convicted of intention to supply a controlled substance, the court should be satisfied beyond reasonable doubt that this intention existed at the relevant time. In line with the 'golden thread' of English law, the presumption of innocence should be upheld, and the quantity of drugs in the possession of a defendant should continue to be only a factor in the consideration of a case".
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