Clause 2 - Proof of intention to supply a controlled drug
Drugs Bill
3:45 pm
Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney and 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.