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Lord Rea: I was unable to be present at the beginning of the Second Reading of the Bill, so I could not speak then. If I had spoken, my speech would have echoed much of the critical stance that came through the speeches of most other noble Lords who spoke.

The Bill has several defects, not only this one, however praiseworthy are the parts that aim to point drug-dependant people towards treatment. My noble friend Lady Scotland said, at Second Reading, that we should,

That was in relation to this Bill. I could not agree more but, of course, for that we would need proper time between stages in which to do that very thing. I believe that the Bill should have been reintroduced after the election; it should have been withdrawn, and we could have had proper time to debate it later.

The clause that we are debating is a good example of why the Bill needs such scrutiny. I agree with the points made by noble Lords who have spoken, advocating that this clause ought to be dropped.

Lord Cobbold: I support the point on the presumption of innocence raised by the noble Baroness, Lady Falkner, and point out that I raised the same matter at Second Reading.

Baroness Scotland of Asthal: It is right that we had a detailed discussion of this matter on Second Reading. I understand fully the concerns that the noble Lord,
 
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Lord Dholakia, raised. I hope that I shall be able to clarify some of those points for him so as to make him a little more satisfied that the way in which he would like the provisions to work is in fact the case.

As noble Lords know only too well, the clause creates an evidential presumption of intent to supply when the defendant is found to be in possession of a particular amount of a controlled drug. The effect is that when the presumption applies, a court or jury must assume that the defendant intended to supply the drug in his possession. However, I invite noble Lords to cast an eye at the second part of Clause 2, because insufficient regard has been paid to it. The noble Lord, Lord Mancroft, referred to new subsection (4A) of the Misuse of Drugs Act 1971, but that must be read in conjunction with new subsection (4B), which says:

So it is a rebuttable, not an absolute, presumption.

The clause places an evidential presumption, rather than a legal burden of proof, on the defendant. The presumption is rebutted when evidence is adduced which raises an issue or arguable case that the defendant did not intend to supply the drugs in his possession. If such evidence is raised, the prosecution will be required to prove beyond all reasonable doubt that the defendant intended to supply the drugs in his possession.

I know that noble Lords have expressed concern regarding the fact that the Joint Committee on Human Rights found that it was unable to reach a definitive view on whether the evidential presumption placed on defendants to an offence of possession with intent to supply controlled drugs was compatible with the convention. That was because the Joint Committee had not been informed of the prescribed amounts of drugs that would trigger the application of the statutory assumption. Those amounts will be provided in regulations subject to the affirmative resolution procedure.

The Joint Committee has emphasised that the convention will require there to be a sense of proportion in the amounts which are prescribed by regulation, vis-à-vis the seriousness of the offence of possession with intent to supply controlled drugs. We are very mindful that any levels to be prescribed by regulations with a view to triggering the statutory assumption must be appropriate, reflect and be proportionate to the seriousness of the offence.

We believe that consultation with a range of bodies which have expertise in the field of drugs is essential to ensure that the particular levels prescribed are appropriate. In another place, the Minister responsible for drugs undertook to consult the Advisory Council on the Misuse of Drugs as well as a range of other people, including the Forensic Science Service, the police and the Crown Prosecution Service. Other bodies that will be consulted will include the Department of Health, the National Treatment Agency, the Association of Chief Police Officers, and non-governmental organisations working in the drugs field. I say to the noble Lord, Lord Mancroft, that that is important, because it deals
 
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with his point about where to draw the line between the users and abusers and those who actually enforce. We believe that we should listen to everyone on that matter, in order to get it right.

Any levels prescribed by regulations must be debated by both Houses under the affirmative resolution procedure. We consider that such consultation and debate will provide the necessary transparency and safeguards and will assist us in securing prescribed levels that are indeed proportionate. The need for the thresholds to be agreed by affirmative resolution of both Houses will give noble Lords the opportunity to scrutinise the thresholds which it is proposed to adopt. I anticipate that we will be in a position to bring forward such a resolution late in 2005 or early in 2006.

To give an indication—and it is only an indication—of what these thresholds might be, the level set out in an informal agreement reached between one police force and the CPS locally regarding when a charge of possession with intent to supply is appropriate are: in relation to heroin, bulk 7 grams or more, or 10 separate 0.1 gram wraps or more; with crack cocaine, bulk 7 grams or more, or 10 separate 0.1 gram rocks or more; with cocaine, bulk 7 grams or more, or 10 separate 1 gram or 0.5 gram wraps; and ecstasy, 10 tablets or more. Finally, for cannabis resin the relevant figure is 112 grams or more or 10 individual pieces or more. For the leaf it is 0.5 kilograms or more or 20 individual bags or more. That gives an idea of what one police force has done to approach this matter. However, I need to make clear that when we tackle this matter it will not just concern local protocol. The process will take into account all the medical and other evidence and try to establish a measure that will apply right across the board.

However, I should emphasise the importance that consultation will have regarding where we finally end up. The purpose of this clause is to achieve greater consistency right across the country on when a defendant is charged with possession with intent to supply; clarify the point at which the quantity of drugs in a person's possession becomes above and beyond that reasonably held for personal use; increase the success in convicting dealers and disrupt the activity of dealers. It is on that basis that I move that Clause 2 stand part of the Bill.

Lord Dholakia: I am perfectly happy with the explanation offered. I have no need to pursue the matter further.

Clause 2 agreed to.

Clause 3 [Drug offence searches: England and Wales]:

Lord Mancroft moved Amendment No. 1:

The noble Lord said: For the Committee's convenience I should point out that Amendment No. 1 is grouped with Amendments Nos. 3, 5 and 9.

I was going to start by apologising for tabling these amendments so late last night that your Lordships did not get a sight of them until today—that was until I discovered that the government amendments were laid even later; this morning.
 
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I remind the Committee that we had Second Reading of this Bill on Monday as I believe that no one was aware that it was taking place. Only three Back-Benchers were able to speak and all three of them were pretty much opposed to the Bill. It was not at that stage moved into Committee; in fact, it was not referred to a Committee of your Lordships until a short while ago. I am not quite clear why we are now having to go through this because it is not exactly news that the election is coming. We have known about it for some time.

I believe that I have never heard of a Bill coming through the wash-up stage—which is entirely a Front Bench process and nothing to do with us poor old foot soldiers on the Back Benches—that has not been at least moved into a Committee and has not had any scrutiny at all in this House. It is not an urgent Bill. If it was urgent, it should have come forward earlier in the Session. Therefore, it is rather undesirable for the noble Baroness to point out the desirability of having consultation. A number of organisations that I know well would have liked to offer briefing on this Bill. We Back-Benchers need and appreciate those briefings on many different subjects. However, we have not had the opportunity to receive those briefings on this Bill. It is an extremely unsatisfactory way to proceed on a controversial and difficult Bill.

Clause 3(5) refers to the person—rather than defendant at this stage as he or she has not been charged—not being able to refuse what is called a "drug offence search" without good cause. Clause 3(5)(a) states that,

and, most importantly of all,

Therefore, I very shortly ask two questions. What is good cause? What inferences from the refusal appear or do not appear to be proper to draw? More importantly, how is the person to know what is good cause and what inferences can properly be drawn? I beg to move.

7.45 p.m.


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