Clause 8 - Extended detention of suspected drug offenders

Drugs Bill – in a Public Bill Committee at 4:45 pm on 1 February 2005.

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Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 4:45, 1 February 2005

I beg to move amendment No. 42, in page 10, line 42, at end add—

'This power can only be exercised where the taking of an x-ray or the carrying out of an ultrasound scan has established the possibility of the person being detained having swallowed a substance reasonably believed to be controlled drugs.'.

We are back to our old friends the so-called swallowers. The clause will extend from 96 to 192 hours the period for which someone who has swallowed something believed to be a controlled substance can, on application, be remanded into police custody by a magistrate. My amendment provides that that power can be exercised only when the possibility of such a substance being present had been established by X-ray or ultrasound.

Eight days is a long time to hold someone in custody. Having given the police powers to order X-ray and ultrasound examinations, if we anticipate detention for a period of that nature that is the least that we should do. It is in everybody's interests for a person who has swallowed a substance to be scrutinised as closely as possible. The counterbalance to that is that we must first have established that there is a real prospect of there being something there. I deliberately worded the amendment to require the presence of ''controlled drugs'' rather than specifying class A or whatever. On reflection, I might have said ''a controlled drug'' rather than ''controlled drugs''. However, that is the sort of nicety that can be resolved if the Minister is minded to see the wisdom of the point.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

On first reading the amendment, I thought, ''Why not accept it?'' On the face of it, 192 hours, which is about 8 days, seems like a long time to   hold somebody, and why would that power be needed to carry out an X-ray or a scan? That was my starting point. I hope that I shall be able to explain why it is necessary.

As we have discussed before, somebody who swallows drugs, suitably wrapped, upon arrest does so in order to conceal evidence and to avoid prosecution. At the moment, under PACE, a suspect can be detained for a maximum of 96 hours with charge. Apparently, that is often insufficient time for the substance to pass through the body. The record is 40 days. I do not know what the substance was—I can see the pained looks on people's faces—but it took that long or longer. We are not asking for 40 days. We spoke earlier about Manchester airport and mules. Customs officers often face similar problems in relation to people suspected of swallowing drugs in order to smuggle them into the country. The Criminal Justice Act 1988 made provision—

Sitting suspended for a Division in the House.

On resuming—

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 12:00, 1 February 2005

The Criminal Justice Act 1988 made provision for a magistrate to commit a person charged with possession of a controlled drug or a drug trafficking offence into the custody of a customs officer for a period of up to 192 hours. Under clause 8, we are trying to give magistrates similar powers to remand a person charged to the custody of a police officer for a period of up to 192 hours to increase the likelihood of the evidence being recovered. That is an important part of the clause.

Although the amendment appears reasonable, it would limit the exercise of the power to cases in which an X-ray or ultrasound scan has established the possibility of the defendant having swallowed a substance that is reasonably believed to be a controlled drug. I do understand the desire to ensure that the power of extended detention is used only where necessary, and I would certainly expect the police to take great care when considering whether to use the new powers to seek an X-ray or ultrasound scan before deciding to seek a remand for 192 hours.

I cannot accept the amendment, however, because it could mean that a suspect could avoid being remanded on charge to police custody simply by refusing consent to an X-ray or an ultrasound scan. In the light of our earlier discussion, the court could obviously make inferences from a refusal to consent. On the other hand, there is the question of building the case and the evidence base that the person is involved in the supply of drugs. We will know for sure that the evidence is inside them only when it comes out at the other end.

Section 152 of the Criminal Justice Act 1988 already requires a magistrate to consider whether the use of the power is appropriate. That is important, because the power is exercised by the magistrates, not police   officers, and therefore must be exercised judiciously. I would also remind hon. Members that the power cannot be used on defendants under 17 years of age.

The power is important for dealing not only with refusals, but with X-rays or scans that are not clear and which might therefore cause problems with showing reasonable belief that a substance is there, in line with the amendment. We have sought information from customs officers. Although they said that most swallowed parcels of drugs are detected by X-ray or ultrasound, a small pellet may remain undetected. That may depend on the experience of the ultrasound or X-ray operative or on the equipment being used.

Although there must be a procedure for the police to make a case—in this case to the courts—for using the power over and above an X-ray or scan, or when someone has refused, the police need to have the power provided for them in certain circumstances. On that basis I hope that the hon. Member for Orkney and Shetland will withdraw the amendment.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The Minister's point about an accused person being able to avoid the provisions by refusing is a good one and her objection is well founded on that count. However, I wonder whether it might not still be possible to make the Bill somewhat stronger. Would it be possible to make it clear to police officers, through guidance notes, for example, that in all but the most exceptional circumstances an X-ray or ultrasound scan should be carried out? We are talking about a fairly draconian power and we have already given the power of X-ray and ultrasound. Parliament is entitled to expect that power to be used unless there is a good reason why not.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I will look into the guidance. There will be issues arising in relation to the X-ray and ultrasound scan, which we discussed earlier. We will also consider how the customs model is applied, because at the end of the day a case will have to be made to a magistrates court to get permission for the additional power.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am grateful to the Minister for that response, which reassures me that the line of operation that I sought to introduce in tabling the amendment would be followed in practice. What happens in practice is what concerns me most, and has done so throughout the Committee. In view of the Minister's assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

I wish to explore a few points. First, I want to ensure that the new provisions do not alter the hours that will be counted for the person who has been detained. Secondly, the Minister referred to Customs and Excise. Have there been any difficulties with Customs and Excise or lessons learned? Thirdly, if the evidence had not been recovered in 192 hours, would   it be possible to return to the magistrates court and extend the time? The Minister referred to the record as being 40 days, so would the person have to be released if their retention factor proved to be in excess of 192 hours?

Finally, I do not want to descend into lavatorial discussion, but I understand that the drugs smugglers whom Customs and Excise have to deal with have drugs wrapped in everything from condoms and balloons to the fingers of latex gloves. Suspects have to remove their clothes and put on a paper suit, which stops them hiding materials.

The customs officers keep the suspect under constant supervision while they wait for nature to take its course, which may take several days. Eventually, the suspect has to go to the lavatory and that is usually when the swallowed packages appear. The packages are then usually washed in a small chamber used by Customs and Excise called a Frost chamber. I have pictures of the Frost chamber and, indeed, have seen it when visiting Customs and Excise facilities. I would therefore like the Minister to explain what will be available to police officers and in police cells to carry out the hazardous and unpleasant work to recover evidence after the suspect has been detained for 192 hours.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 5:15, 1 February 2005

I congratulate the hon. Member for Chesham and Amersham on the exceptionally delicate way in which she dealt with the matter. The money spent on sending her to Cheltenham Ladies college was not wasted.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

The clause arose because front-line police officers said that they would find it helpful in certain circumstances to have the power that we propose. As I said, we have the customs model of how the power should be applied and we shall consider how the police will use it. A force will have to consider equipping one or more custody suites for these purposes but the proposal will not necessarily be used disproportionately. As the police will initiate the request to the magistrates, they will be able to consider the issue of control on officer time and how the process will be managed. Obviously they will have to consider special facilities which may or may not be the same as those for the customs, which has access to see-through toilets, for example.

Forces will have to think about these issues as part and parcel of their approach to tackling drug supply offenders and we will consider how to guide them on how customs use the power, which they see as very useful; they are enthusiastic about it. There will be occasions on which it will be possible to seek an extension from a magistrate, but returning to the magistrate will have to be justified. It is possible for customs to do that at present. It will be for the police, based on the guidance, to determine how they will manage and use the power as part of their general approach to tackling drug offenders. 

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office)

Could the Minister comment on the arrangements that the police might have to consider concerning what Customs and Excise do in respect of removing garments and putting suspects into plain white suits?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I cannot answer that question now, but I shall look into it. I understand that some police forces already have certain types of equipment for the purposes that the clause tries to deal with—the passing of packages containing drugs. They also have protocols for using it, including those related to health and safety issues. There are clearly issues to consider in terms of the health risk to the detainee, which would   have to be assessed by a suitably qualified medical practitioner. I do not want to reopen the debate about hospitals, but in some cases it may result in the detainee having to be transferred to hospital, if necessary. We can draw upon the custom and practice of Customs and Excise to assist us. What is proposed is just another tool to assist the police in their work.

Question put and agreed to.

Clause 8 ordered to stand part of the Bill.

Debate adjourned.—[Mr. Heppell.]

Adjourned accordingly at twenty minutes past Five o'clock till Thursday 3 February at ten minutes past Nine o'clock. The Committee consisted of the following Members: