Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)
It is right that we had a detailed discussion of this matter on Second Reading. I understand fully the concerns that the noble Lord, 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:
"Subsection (4A) above 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 that intent".
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 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.