Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I beg to move amendment No. 31, in clause 2, page 3, line 3, leave out subsection (4B).

I see, Mr. Illsley, that you are shaking your head. This morning Mr. Gale gave us the impression that we could speak to general matters concerning a clause. I am happy with that or a clause stand part debate.

Mr Eric Illsley (Barnsley Central, Labour)

Given the situation in which we find ourselves, for the moment let us speak to the amendment, then we will have a clause stand part debate, given that there is only one amendment to clause 2.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

It is a simple matter. I have used the device of removing subsection (4B), because I would like to hear what the Minister has to say about the burden of proof. I would prefer the burden of proof to fall on the defence. Once again, the matter will be dealt with not in the Bill but in regulation, but I would like to hear what the Minister says about the quantity of the drugs and the burden of proof.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

The hon. Lady does us a service in introducing the amendment. Given my experience with subsection (6) of clause 1, I am with her in wishing to probe the Government. I am not necessarily seeking the withdrawal of subsection (4B). The wording at the moment is opaque, talking of evidence that

''is sufficient to raise an issue that the accused may not have had the drug in his possession with that intent''—

the intent to supply.

There is the question of the burden of the proof. The Bill's wording would, at the moment, make it, prima facie, appear that the burden falls on the defence. That need not necessarily mean that the defence would need the evidence. Inferences could be drawn by the defence from witnesses for the Crown. That is then the standard required to be demonstrated. If the proof of intent to supply, which is an essential part of the charge under clause 5(3), is not sufficient and raises a reasonable doubt, it would lead to acquittal on the intent to supply charge. Will a higher barrier be set that would allow a conviction of simple possession, but not possession with intent to supply? Will the defence be required to establish on the balance of probabilities that the person's intention was not to supply?

The use of the term ''to raise an issue'' and the fact that the accused may not have the drug, is somewhat novel and does not sit well. Raising an issue is not a term of art of which I am aware. Perhaps that is a term of art in English law. Although subsection (5) is needed, it could be much better drafted. I hope that the Minister will consider that between now and Report.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

The amendment relates to a clause that creates a presumption of intent to supply, where the defendant is found to be in possession of a particular amount of a controlled drug.

Just to set the context, we met a group of police officers working in the National Criminal Intelligence   Service and in police forces throughout the country, all of whom were in one way or another involved in tackling drugs supply offences. One concern was raised in relation to how, on occasions, people involved in drug dealing would claim that their drugs were just for personal use to avoid a supply charge. I have also seen dealers on CCTV depositing small packets of a drug in the street and going back and forth, selling drugs and returning for their supply.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

My recollection is that possession under section 5 of the Misuse of Drugs Act 1971 is based on knowledge and control. Surely, in the situation that the Minister describes, although the person was not physically holding the drugs, they would still be in possession because they would have both knowledge and control of them.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

The hon. Gentleman is a lawyer. I will read what he said in Hansard. I was trying to describe how drug dealers operate to limit the opportunity for the police to come forward with a more serious offence for which there are more serious penalties. A number of the measures in the Bill are to do with closing some of the loopholes that the police have said need to be addressed and which in many cases foil them in bringing forward successful convictions.

The clause places an evidential presumption on the defendant, rather than a legal burden of proof. The presumption is rebutted where evidence is adduced that 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. With a number of such investigations other evidence may be available.

By introducing this provision we are not trying to limit the threshold, or say to the police that the threshold is enough. We would always want to look for a rounded body of evidence with which to bring forward an arrest and charge on an individual.

The level of possession that will give rise to the presumption will vary from drug to drug and will be prescribed in regulations approved by a resolution of both Houses of Parliament. In formulating those regulations, the Secretary of State will consult the Advisory Council on the Misuse of Drugs and a range of other people, too, including the Forensic Science Service, the police and the CPS, to come to an agreement on what the level should be.

I understand that in parts of the country the CPS and the police often look at the amount of possession informally. While that is not enshrined in guidance, they use it as a guide for whether they can take a case to court or not. That has not had the rigour of consultation and could lead to inconsistencies in different parts of the country.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

The hon. Lady speaks about approaches taken by the CPS and the police in different parts of the country. What response did she   get from the Lord Advocate and the Solicitor-General, who were presumably consulted on that matter as it relates to Scotland?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I will seek the information that the hon. Gentleman needs.

I come to my next point. We sought advice on the issues surrounding the burden of proof. I will explain why we cannot accept the amendment tabled by the hon. Member for Chesham and Amersham and why the measures we provide offer greater scope for conviction for supply offences, while working within a framework that recognises that in some cases there could be a reasonable offence.

The purpose of the clause is to achieve greater consistency throughout the country when a defendant is charged with possession with intent to supply and clarify the point at which the quantity of drugs in a person's possession becomes above and beyond that reasonably held for personal use. We hope that there will be increased success in convicting dealers and that the proposals will contribute to disrupting their activities. As well as arrests and convictions, part of what we trying to achieve through looking at different ways of law enforcement is disrupting criminal activity. Anything that we can do to make street dealing harder is to be welcomed, whether it is done through the use of CCTV or other measures. We are trying to tighten the net around these individuals.

The amendment would prevent a defendant from being able to rebut a presumption that he intended to supply the drugs in question where evidence is adduced that raises an issue or argument in the case whether or not he intended to do so—for example, if the person is a known drug user. The amendment would require a court to do so, irrespective of considerable evidence raised to the contrary.

A person from a rural area who comes into a city area to buy their drugs might want to purchase larger quantities than we might consider normal for their own consumption. When we were working this matter through, we considered whether we should go down the route suggested by the hon. Lady or use our preferred option in the Bill. We felt that there could be circumstances where there needed to be an opportunity for a defence.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I am grateful to the Minister for giving way. She has been generous with her time. When she says that it is for the accused or the defendant to raise an issue or arguable case—the latter words to do not appear in the Bill—is that the same as raising a reasonable doubt on the charge outlined in section (5)(3), the question of intent to supply, or is it different?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I will look into that question and get back to the hon. Gentleman. If I cannot answer him this afternoon I will write to him with clarification.

The effect of the amendment would be to require a court, irrespective of considerable evidence raised to the contrary, to assume that a person intended to supply the drugs in his possession solely on the basis of the amount of drugs in question. The intention may be   to create a reverse legal burden of proof, which would mean that the defendant would have to prove beyond reasonable doubt that he did not possess the drugs with intent to supply. We have taken advice on the matter and while we believe that we need to deal with loopholes that have been brought to our attention, the amendment would not be compatible with article 6(2) of the European convention on human rights, which enshrines the presumption of innocence.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I tabled the amendment because a fear was triggered in my mind by a briefing sent to us by Transform. That organisation felt that much of the debate was theoretical because its legal advisers had advised that the ability of prosecutors to activate a presumption of guilt for intention to supply is severely limited by the wording and technical detail in the Bill, and specifically by new subsection (4B), which I am seeking to delete as the vehicle for this debate. The advisers said that the caveat in new subsection (4B) means that if evidence is adduced—they have gone to a dictionary for the meaning of adduced, which is:

''To mention a fact as a supporting reason, piece of evidence etc.''—

the presumption of guilt of intent to supply will not be triggered.

Defence lawyers will inevitably use the caveat, which was included to make the Bill compliant with human rights legislation, as the Minister confirmed, to avoid the presumption by producing evidence that could even be in the form of a simple testimony from the defendant. The effect will be that the measure, which appears to be tough and which I support, will rarely if ever be deployed. Will the Minister answer that specific point, because it was the point of anxiety raised in my mind when I originally read the briefing?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

My understanding is that although the clause will allow a defence for an individual against presumption of guilt, it goes further than we have ever gone in that the person will have to give good reason as to why the presumption should not apply. The prosecution will still have to make a case against the person in court. I would hope that, in most cases, the amount of drugs on a person would not be the only piece of evidence. Many such individuals are charged with possession, so other information and intelligence would form the case against them.

I shall look into what the hon. Lady said in more detail. She is quoting from the Transform briefing, which I do not have in front of me, but I will have a look at it and compare notes. I do not accept her amendment for the reasons that I have outlined. The measure strengthens the opportunities to charge people with intent to supply. That loophole has been brought to our attention, but when we have shared concerns with the police and others, they have been happy.

The Lord Advocate and Solicitor General for Scotland are also happy with the clause. The hon. Member for Orkney and Shetland raised an issue about what ''raises an issue'' actually means. I   understand that the term was used in the House of Lords this year in the case Sheldrake v. the Director of Public Prosecutions, Attorney-General's reference No. 4 of 2002—I shall look that up in whatever reference book is necessary. Apparently, the House of Lords refers to it in terms of raising an arguable case. That sounds like a lot of legal information to me, which the hon. Gentleman may be more aware of.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

Does the hon. Lady believe that it is appropriate to import into Scots law, through a United Kingdom statute, a term that is a term of art in England only?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I will take some advice and come back to the hon. Gentleman on that one so that I am absolutely clear about exactly what I may or may not be agreeing to.

The measure has a number of advantages. Not all defendants will be able successfully to raise the issue. It will send out a clear message to dealers, whose current dealing methods may be disrupted. While helping to understand the issues around setting thresholds, I hope that it might also improve consistency as to when those in possession of drugs are charged with intent to supply. We know that the police see the approach as being worth while; in some areas, as I said, the police have agreed informal thresholds with the CPS. We are seeing if we can give a bit more formality to that, to get more forces working to tackle individuals in this way. Therefore I call upon the hon. Lady not to press her amendment.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

There is no doubt that this proposed reversal of the evidential burden raises some legal problems. In article 6 of the Human Rights Act 1998 it is stated clearly:

''Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.''

If the clause is enacted, I need to make sure that its apparent reversal of the burden of proof—meaning that individuals are presumed guilty until they prove themselves innocent—does not fall foul of that in any way.

I return to the term ''adduced'', which I know the hon. Member for Orkney and Shetland is particularly hung up on, as well as the phrase ''to raise an issue''. Again, we seem to be coming back to language. Yet that is, after all, what scrutiny of legislation is all about—to examine the language and to examine carefully whether it may work in the way we intend, or against us. I am not entirely unconvinced that the brief I have received from Transform is correct. I will withdraw this amendment on the understanding that, once again, the Minister will look at this area, as I still have worries about it despite what I heard her say. It is a very tough measure, which I approve of—and I want to ensure that it bites.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

On this question of workability, it is perhaps appropriate that I explain a little further my concern about the importing of this English term from the Sheldrake case into Scots law. The decision in Sheldrake, albeit a decision of the House of Lords, will not be binding in a Scots court. It is still open, then, to   Scots courts to come up with their own construction of what would be meant by this term—which may be different. That, of course, is always open to the courts, but where we already have an established body of case law on terms that are not novel to Scotland—and when this part of the Bill is to apply UK-wide—why not use it? Why not just say ''led'' instead of ''adduced'', and say ''establish a doubt'' instead of ''raise an issue''?

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

That is a good intervention with which I can agree. This just reinforces that we would like the Minister to reconsider the subsection and, if possible, write to us during the course of the passage of the Bill—before Report and Third Reading. I know that will put a burden on her and her office at a time when the legislative burden is huge, but it is important as we have some severe doubts about the efficacy of the clause. We would like to see it work and therefore would particularly appreciate the Minister giving us that undertaking. I will give way, if she is willing to give it.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I give an undertaking to write to the hon. Members on these issues.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I thank the Minister and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney & Shetland, Liberal Democrat)

I said earlier that I felt there was no real point in having clause 1 of the Bill. I feel rather more strongly about clause 2. While there is an element of it not advancing the law in any way—much the same was true of the previous clause—I see a number of dangers arising from clause 2. I can only see one advantage, to my mind; that it may reduce the amount of police time spent in court. At the moment, where a charge is laid concerning the intent to supply, it is normal to bring expert witnesses—who are normally drugs squad officers—to 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 such as that, we would avoid the attendance of drug squad officers, particularly in summary cases. Although I can see the attraction of that, it may not necessarily be an advantage. It is a big advantage to the drugs squad officers to give evidence in court and to have the experience of being cross-examined on their experience by solicitors, advocates or barristers in a court. It keeps them sharp and allows them to build up a level of experience—I speak as someone who has been involved in training police officers in such areas in the past—that they are then able to use to much better effect on the big occasions and 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 to be prescribed by the Secretary of State in 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.''

The provision will bring with it a laziness of attitude, which will mean that ultimately the community is not better served. Speaking from my own experience of having said to police officers, ''Go and look for further evidence; I am looking for evidence of this, that or the other'', I know that they will not necessarily do that of their own volition. I am concerned that if we operate with a presumption of this sort, 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 then reported to the prosecuting authorities, the evidence that might have been there will no longer be there.

The reason why I do not think that the provision achieves anything new is that existing case law says that simple possession of a substantial amount of drugs is sufficient for a court to infer intent to supply. That has been the case for some considerable time. If that has changed over the past four years, when my interest in those matters has been less vigorous than it otherwise might have been, I am willing to hear about it. However, that was certainly the position when I worked on those matters regularly. In such cases, the onus is on the defence to produce evidence that there was no intent to supply.

The Minister referred to people living in country areas. That brings me to an instance that I recall from my own days as an enthusiastic boy prosecutor. I was sent to Fort William sheriff court to deputise for the procurator fiscal. First in the court list that morning was an accused who had an enormous soap bar of cannabis resin. He was offering to plead guilty to the simple possession charge. With my customary good humour on a Monday morning, I growled at his defence solicitor that it must be possession with intent to supply or nothing, and went about my business.

However, when I spoke to the reporting officer, who was a drugs squad officer, he said that the accused lived in a very remote part of the north-west highlands and that he would have to say in court, if he were asked, that it was by no means unusual for people in those circumstances to buy substantial pieces of cannabis resin to take for long-term, but personal, use. He said that he would have to say to the court that he could not exclude that possibility, and so we did not have a strong case for intent to supply. The resin was all in one lump, rather than broken up. There was no cling film or any other paraphernalia that normally would be associated with such intent. 

I raise that because it would still be open to that person to adduce evidence, to use the language of the Bill, that the drugs were not for personal supply. However, if that is to be the case, surely an awful lot more such cases will go to trial, although, on a common-sense view, the matter could be resolved a lot more easily and with less cost to the Legal Aid Board.

There will be a 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; that is common sense. However, as is shown by the situation that I have just outlined, 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 differences, I cannot see how we could get the issue right.

If there were a real lacuna or gap in the law, I could see that this might be worth trying. However, the law as it exists is perfectly capable of dealing with all the issues if the police and the prosecution services are given sufficient resources to give each case proper consideration and preparation before it goes to court. If there is a problem, I suspect that it stems from a lack of resources, and the provision will not help that. If anything, it might make that worse.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I should like to raise a couple of issues. The Minister mentioned that no wide consultation on the clause had taken place. On what evidence does she base the need for the clause? I ask because I think that I have incomplete information on the trends in the number of offenders charged with unlawful supply and with possession with intent to supply unlawfully. The figures that are available to me come from the Home Office statistical bulletin for 2001-02, which was prepared, I think, by two people on 13 September 2004. The numbers of those charged in 1992 with supply offences was 2,190, and that number rose steadily each year to reach 7,230 in 1998. It then fell in each subsequent year, dropping to 4,870 in 2001 and 4,830 in 2002. I should be very interested to know the trends for 2003 and 2004.

The figures for those charged with intent to supply unlawfully are similar. The number rose to 9,610 in 1998, before falling steadily in subsequent years to reach 5,980 in 2002. That tells me that we are not being so successful in catching people guilty of being in possession with intent to supply and of unlawful supply. I am hoping that the Minister will reassure me that the provisions will improve those statistics. There is no doubt that the incidence of drug taking and the amount of drugs coming into this country over that period have increased, whereas the amount of people successfully prosecuted appears to have decreased.

The other point is again about timing. The amount of drugs that will give rise to the presumption will be prescribed by the Secretary of State in regulations. Once again, the Committee does not have the regulations in front of it—not even in the form of a draft—so that we can see what the quantities are, and   what will be forthcoming. The Secretary of State has to draw up those regulations. They can come into effect only after consultation with the Advisory Council on the Misuse of Drugs and, I presume, consultation more widely, too.

How does the Minister envisage the timing on the clause? How far into the future are we looking? It appears to me that this is a paving clause, and we have a lot of stages to go through before it will bite. If the statistics that I quoted are correct and we are failing to catch dealers in the way that is anticipated, the clause cannot come into operation quickly enough. I hope that the Minister can deal with those two points.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

We have consulted the police. As I said, we held a forum with my right hon. Friend the Prime Minister, in which we brought together quite a number of people from different parts of the police service to discuss issues of law enforcement in relation to drugs. We also consulted the Association of Chief Police Officers on the issues relating to the clause.

We consulted the Advisory Council on the Misuse of Drugs about the thresholds, because we have to on a statutory basis. We are looking to consult further with ACPO, the Forensic Science Service, the National Treatment Agency for Substance Misuse, DrugScope, the Crown Prosecution Service and other experts in the field to try to come forward with the thresholds.

I understand the hon. Lady's point about offences, but it is not always clear from the figures how well we are doing on some of the issues. For example, disruption makes a huge difference. Over the past 12 months or so, we have been trying to get addicts into treatment, and I know through activities in which the police were involved that some operations in communities have disrupted supply and made it harder to engage in an active drugs street market. As a result, more people are presenting themselves for treatment, including, some people with addiction problems who are involved in street-level dealing. The issue is not always that clear.

I have looked at the figures, too. In the past year, for example, we have established five regional branches of the Asset Recovery Agency. At least five middle-market drugs units have been set up, often involving police and Customs and Excise. Also, there is the Serious Organised Crime Agency. There have been some better successes in drug law enforcement, and that is a reason why we are not complacent about the issue. We are considering issues on which the police have come to us. It is not that the measure will be a panacea, but the police feel that there is a loophole, and that the measure will be helpful to them in pressing forward with arrests and prosecutions.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

I presume that the Minister is agreeing with me that the record shows that the number of offenders convicted has dropped dramatically since its peak in 1998. That in itself is worrying. I hope that she is reassuring me that the Government have recognised the failure in relation to dealers, and that she hopes to rely on the clause to help improve the conviction rate for suppliers.  

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

In a number of areas, we are considering how we can improve our tackling of level 1, 2 and 3 drug crimes. Towards the end of last year, I was pleased to help launch the London-wide middle market drugs unit, which brings together police officers and Customs and Excise to work at level 2 drug activity.

There are also our measures regarding crack houses, of which around 200 closed last year. At this moment ''Operation Crackdown'' is in progress, a three-month intensive exercise, involving many police forces throughout England and Wales, that focuses on drug-dealing in the community, closes down drug operations when they are on premises, and hopefully will result in more arrests and convictions.

We are conscious that we must ensure the police are provided with resources. There are more officers than ever before. Community support officers are also important in that regard, because at street level there are often residents living in fear who now feel they can share information with the authorities and provide wider evidence of drug dealing in their communities.

Mrs Cheryl Gillan (Shadow Minister, Home Affairs; Chesham & Amersham, Conservative)

Will the Minister give way?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I have given way twice to the hon. Lady, and I have answered her point. We are not complacent, which is why we have already set in train a number of measures, some of which, as in this case, have come directly from the police themselves. We think the clause is important.

Other issues have been mentioned. I will look at what has been said in the transcript of the Committee's proceedings, and see if there is anything further I can help with. We will commence consultation as soon as possible, and, while allowing for reasonable time for consultation and consideration of views that we receive, we do not anticipate any huge delays. We will ensure that hon. Members, particularly those from the Opposition, are given full information on what will be asked in that consultation, and will be happy to discuss the deliberations from it.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 1.