Clause 7 - Testing for presence of class A drugs

Drugs Bill – in a Public Bill Committee at 3:00 pm on 1st February 2005.

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Photo of John Mann John Mann Labour, Bassetlaw 3:00 pm, 1st February 2005

I beg to move amendment No. 18, in clause 7, page 8, line 34, after 'A', insert 'or class B'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment No. 19, in clause 7, page 9, line 3, after 'A', insert 'or class B'.

Photo of John Mann John Mann Labour, Bassetlaw

The amendment probes the Minister on whether the Bill will cover amphetamines-type drugs. If it will, why do we need a class B at all? If amphetamines are not covered, however, that is a serious omission.

Amphetamines, particularly methamphetamines, are an increasing problem across the world. Taken orally and by injection, they are a problem in my area, particularly among a small group of women who are long-standing users. However, this country does not yet have the problems of south-east Asia and Australasia, where over the past three years—

Sitting suspended for a Division in the House.

On resuming—

Photo of John Mann John Mann Labour, Bassetlaw 3:22 pm, 1st February 2005

The Minister should reflect on whether the powers that the police require for dealing with amphetamine-type drugs will be unnecessarily hindered. Drug testing in police custody suites is a welcome move by the Home Office; I believe that Nottinghamshire is the only police authority that tests for drugs at all its police stations. The ability to monitor what offenders are taking is proving to be extremely valuable and will become more so over time because it allows us to determine trends of offending and reoffending and the types and combinations of drugs being used. Such data are valuable to the police, to the health services and to us as legislators. Restricting testing under the Bill simply to class A drugs will at some stage require amendment.

I shall repeat examples that I cited earlier. South-east Asia is the best example, but more relevant is the growth in synthetic drugs in eastern Europe, which are—I hesitate to use the term mushrooming—increasingly prevalent. Their increase in supply is quite dramatic, as are the associated problems, but the easiest examples to consider are Australia and New Zealand, where amphetamine-type drugs have become the problematic drugs of choice. They are the ones in which the organised gangs deal, because they can literally be cooked up in the back of a van as the gangs are driving around. No one can tell whether we will have exactly the same problems. We can, however, say that Australia and New Zealand did not have that problem four years ago, but they do now. The Minister should reflect on whether the Bill is unduly restrictive, hence my suggestion that class B drugs should be included. 

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

I support the hon. Member for Bassetlaw, who has put considerable thought into recommending the amendment to his Front Bench. He deployed an argument that is very much in keeping with my views on the clause—that it would be a sensible precaution to widen its provisions to cover class B drugs. After all, they are exceedingly serious, and amphetamines—speed, or uppers or whatever they are called—certainly fall within that category. Class A drugs are of course prepared for injection; the anomaly is that if the drugs of which he spoke are made to be ingested in a different form—not orally but by injection—they too will come under the class A provisions.

I encourage the Minister to think about that. I want to give her as much power as possible in the task that lies ahead, and I certainly want to give as much power as we can to the police. Rather than revisiting the legislation—although we may do so—it seems sensible to widen the provisions now. If the hon. Gentleman is inclined to put the amendment to the vote, he will have my support and probably that of my hon. Friends.

Photo of Angela Watkinson Angela Watkinson Shadow Minister (Education)

I support the amendment, which widens the scope of clause 7 to include testing for the presence of class B drugs. As we all know, many drug users are poly-drug users, although most have a preferred drug. On the day of testing, they may have used a class A drug. Others will sometimes be class A users and sometimes class B users. Such people may have taken a drug that does not fall under the clause and may therefore not be caught by its provisions.

If we assume that the purpose of drugs legislation is not only to deal with trafficking and dealing, and as the hon. Member for Bassetlaw said, the collection of data, but to direct drug users into treatment, then missing someone under the provisions of the clause who takes class B drugs may mean missing an opportunity to direct that person to treatment. The policy of focusing entirely on class A drugs is misguided. I know that one reason for it is the enormous amount of police time that was used in dealing with class B drug offences, but we do not want policy to be founded on expediency rather than advisability.

If cannabis is reclassified as a class B drug, which I feel it should be, it would be captured by the clause, should the amendment be accepted. That would give us an opportunity to divert large number of people from their drug-taking habits before they acquired the habit for class A drug or harder drugs.

For those reasons, I support the widening of the provisions of the clause to include class B drugs.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

I oppose the amendment. My hon. Friend the Member for Bassetlaw has great knowledge of drug misuse, and I understand that he is trying to simplify the law by making the three classifications simpler. The problem is that most drugs in classes B and C, with the possible exception of cannabis, are medicines. I do not want to increase the penalty for people who are accidentally caught in a positive drugs test.

The Runciman committee suggested that the Government keep to the classification of drugs according to the harm that they do to a human being, male or female. I think that the present classification, including the reclassification of cannabis from B to C, is correct, bearing in mind what that committee thought, having taking wide evidence on the point. I shall say more about the classification of drugs when we come to the mushroom difficulty at the end of the Bill.

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

Some interesting points have been made and have opened up discussion about different types of drugs and their effect on people. By testing on charge—of course we hope, under the Bill, to test on arrest—the Government have, with increasing success, been attempting to identify what we know about the types of drugs that lead to addiction and the huge range of acquisitive offences that are dealt with in police stations and the criminal justice system.

At the heart of our strategy is the wish to find better and quicker ways to identify a drug problem, and I shall talk more later about the relationship of class A drugs, namely heroin and crack cocaine, to crime. We want to do that not as a means to prejudice someone's trial for burglary or another crime, but to find a better way to engage them in taking up treatment, even before they reach court, and so that the treatment plan, if they take advantage of it, can follow them through the criminal justice system, whether it be into custody or a community sentence. We can thus try to stop our justice system's revolving door of people on drugs committing offences, not getting treatment and committing offences over again.

I understand the underlying intention behind the amendments to extend the power to test people for drugs, on charge or on arrest, to include testing for class B drugs. However, there would be several implications. Drug testing is at present used as a screening tool to identify those who use specified class A drugs—heroin and crack cocaine—because research has shown a strong link between certain offences and the misuse of those drugs in the UK. That is important, because different countries have different patterns of misuse. As my hon. Friend the Member for Bassetlaw will know, Australia and Asia have a big problem with amphetamines, particularly methamphetamine, which they have tried to tackle through their drug laws.

In the UK, the link has not been shown for other class A drugs or, for that matter, for class B drugs. The NEW-ADAM survey showed that 85 per cent. of illegal income generated by arrestees is generated by users of heroin, crack and cocaine. Only 13 per cent. of illegal income is accounted for by arrestees who use only drugs other than heroin, crack and cocaine.

Following reclassification of cannabis, most class B drug offences involve amphetamines, and the latest available data show that there are few such offences. In 2002 only 5,820 offenders were found guilty of committing amphetamine offences, from more than 110,000 drug offenders. They make up only 5 per cent. of all offenders, and the number for other class B drugs is so small that separate analysis is not carried out. Given where we are in the UK on the use of drugs, the links to crimes and the harms to individuals in society, we believe that it is unnecessary to extend the scope of drugs screening on arrest or charge to include class B drugs. The available evidence does not suggest a causal link between trivial offences and the misuse of class B drugs. There would have to be an evidential basis for such a link. Without that, it would be necessary to justify the cost of such an extension. From where we are now, the cost would be disproportionate to the benefit and could not really be justified.

Furthermore, if no strong link is established between the taking of class B drugs on their own and the commission of crime, it would be difficult to justify the interference that such testing would entail with a person's privacy, under article 8 of the European convention on human rights, on the grounds of preventing crime. That is important, because when we introduced the powers to test on charge—we are now discussing testing on arrest—we rightly had to make a case and say why we thought that appropriate in terms of an individual's human rights. Obviously, if the situation changed, and if there was evidence of new synthetic drugs being used in the same way as heroin or crack, as my hon. Friend suggested, and there was a shift in patterns of drug use, we would, as with anything else, keep things under review, and seek to reclassify the drug in question as a class A drug or, by order, seek the House's support for an extension of the legislation.

I understand part of my hon. Friend's desire in the amendment, but although we can consider other countries, we should recognise that situations sometimes differ and that we must deal with how things are in this country. For the reasons that I have outlined, to do with the justification for testing—an important change is being made in how such issues are tackled—and to do with the evidential basis to justify the cost, I do not think that we can accept the amendment. I therefore ask my hon. Friend to withdraw it. 

Photo of John Mann John Mann Labour, Bassetlaw

The Minister has given part of an answer, but in many ways the Government's thinking—perhaps the Home Office's thinking would be more accurate—is given away by the use of the word ''only'' with regard to the use of amphetamines. The evidence that I have seen suggests that few amphetamine users in this country use only amphetamines; we can track the users in my area, who are well known. Those people are therefore just as liable if arrested to test positive for another drug, even though amphetamines are their drug of choice and the one that creates the behaviour that leads to acquisitive crime.

That is the fundamental point about amphetamines that I think the Minister has not fully addressed. Even if the figure was only 5 per cent. and remained so—I dispute the statement that our information base says that the figure is only 5 per cent., because of the nature of testing and poly-drug use—the direct link with acquisitive crime would still demonstrably exist. That is what distinguishes amphetamines from other class B drugs and, indeed, from class A drugs such as ecstasy.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

I might not have made myself completely clear. My hon. Friend is dwelling on amphetamines, but class B includes drugs such as codeine. Codeine is regularly taken by a lot of people; it is the main constituent of cough mixture, for goodness' sake. If people are being tested in police stations for hard drugs, on which we ought to be hitting down hard, as the Government are, the tests will pick up people who are on cough mixture. That would surely be a waste of resources.

Photo of John Mann John Mann Labour, Bassetlaw

My hon. Friend points clearly to the mess that the Government inherited with drugs classification. Clearly, the idea that codeine—even when used New Zealand-style, baked and turned into morphine—should be classed with amphetamines is nonsense. However, that is an issue for another day and is not the purpose behind the amendment. Even if the figure is just 5 per cent., it seems that the causation link with acquisitive crime is sufficient to merit consideration. However, I ask the Minister to reflect on the point that the shift to amphetamines and methamphetamines came in within a mere three months in New Zealand and Australia. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sitting suspended for a Division in the House.

On resuming—

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

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Minister of State (Home Office) 3:56 pm, 1st February 2005

Clause 7 concerns testing for the presence of class A drugs. The key proposal makes a number of amendments to the Police and Criminal Evidence Act 1984 to allow for the introduction of drug testing of a person for specified class A drug use   on arrest for a trigger offence, and later there is a provision to require a person with a positive test to attend an assessment by a drugs worker. However, as I understand it the provision signals a new departure: if a person over 18 is arrested and not charged, on the say-so of an officer he or she is required to undergo testing for a ''specified Class A drug''.

My first question to the Minister is, what is a specified class A drug? Why not just a class A drug? Why introduce the word ''specified'' and what is its significance? We have just had a discussion on the classification of drugs. The drugs included in class A are heroin, methadone, cocaine, ecstasy, LSD, amphetamines if prepared for injection and magic mushrooms prepared for use. Does the inclusion of ''specified'' mean that the officer has to choose one of those drugs and specify which, or does it cover all class A drugs?

This provision would play into the point made by the hon. Member for Bassetlaw, although he withdrew his amendment, to try to widen the clause to catch both class A and class B drugs, because amphetamines appear in both class A and class B. Will the Minister explain the inclusion of ''specified'' and say whether she considers it necessary? It appears to be a narrowing of the provision that ties the police officer's hands behind his back rather than the wide catch-all provision that both sides of the Committee seek.

I have been impressed by some of the organisations that have briefed us during the run-up to the Bill. I may not agree with them in many instances, but it is only fair that some of the points that they have raised with me should be raised with the Minister. It is apposite that some of the issues should be raised during a stand part debate on clause 7, to which they relate.

I refer specifically to a briefing that I received from DrugScope, with which I know the Minister is familiar. I repeat that I do not always agree with what it has to say. On this provision, it says that it is doubtful whether the power to test on arrest rather than at charge will lead to an improvement in the number of people entering and completing treatment, because the evidence on improving responses to problem drug users at the point of arrest does not suggest that the problem is with a lack of coercive police powers to compel people into treatment.

DrugScope goes on to ask why the emphasis is not on strengthening existing voluntary schemes, particularly the arrest referral scheme, with which the Minister will be familiar. It also asks why, rather than introducing new police powers, which are linked to criminal sanctions, those provisions cannot be extended. We all share the Minister's aspirations for getting more people into drug treatment, and we accept that that is an exceedingly difficult task, given that the lives of those people are often chaotic and not at all stable, but the arrest referral scheme is seen to have some merits. It is a voluntary scheme that aims to identify problematic users at the point of arrest and to encourage them to tackle their problem.

Police custody staff offer the scheme, and people are assessed when they agree to participate. If they are appropriate, they are referred to services. Arrest   referral workers screened about 49,000 individuals in England and Wales between October 2000 and September 2001. More than half those individuals were voluntarily referred to specialist drug treatment services. Of those who were referred, a quarter—5,500—entered into treatment.

The research evidence on the arrest referral suggests that the priority of a Government concerned about improving outcomes for arrestees with drug problems is not to introduce new coercive police powers. Recent research identifies the following essential ingredients for successful arrest referral work: a proactive mode of work that wins the respect and trust of users; adequate resourcing; the capacity to provide continuing support, which is exceedingly important when dealing with such a group of offenders; and appropriate and adequately resourced treatment services to which to refer individuals, which I am afraid are in short supply.

Turning Point and DrugScope, both of which have provided briefings, believe that the Government should use this opportunity to introduce several practical improvements to the existing arrest referral schemes in order to deliver enhanced arrest referral and to encourage people to enter treatment voluntarily. They suggest the following modifications: the provision of pre-booked appointments for treatment; accompanying clients to appointments; assertive outreach following non-attendance; follow-up contact; special arrangements for particularly vulnerable clients; and the provision of further training for workers on issues such as prostitution and stimulant and alcohol use, all of which are relevant when dealing with this particular group of people. I do not know whether the Minister is particularly familiar with those suggestions, but perhaps she will comment on them for the benefit of the Committee. Turning Point and DrugScope believe that those measures would be more effective and would actively support people in attending drug treatment centres voluntarily. I hasten to add that I do not necessarily agree with those provisions, but I am interested in the Minister's response. To be fair, I do like to know the Government's position when I am briefed by an organisation.

DrugScope has other concerns about clause 7. It believes that there needs to be clarification of the status of the test sample and how the information derived from the results of the test is used. It wants assurances that information from test results is handled sensitively and used only to inform a course of treatment, rather than to influence criminal proceedings, where it has no bearing on the crime and does not relate to problematic behaviours. I am interested to know what the Government have to say about the test results and whether they will be used as additional evidence in support of offences for which the person has been arrested.

DrugScope is also concerned that the process and results of testing on arrest could be used oppressively in an interrogation and related processes at a police station. Again, it seeks assurances that appropriate guidance, safeguards and monitoring will be put in place to ensure that these powers are not misused. I   agree with the organisation that the method of recording the results and the length of time for which they are retained are also important. It believes that that is particularly important if the charges are dropped for the crime for which the individual was arrested. It is not clear what happens if someone is arrested and tests positive for class A drug use, but is not charged. Is that person still bound to attend assessments and to face criminal penalties if he does not?

I have other queries in that regard but that is enough for the Minister to deal with for the time being. I welcome the provision, but would like to know how she would deal with its critics.

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

Like the hon. Member for Chesham and Amersham, I have had the benefit of briefings from various bodies, including DrugScope, to which she referred, and Transform. They have raised in my mind a number of issues on which I remain uneasy. In considering my position on the clause, I have had regard not just to the Bill but to the accompanying regulatory impact assessment. In a number of respects, the RIA is a little long on assertion and a little short on evidential support for those assertions.

We should all focus on maximising the number of people who enter and complete a treatment programme. That raises a fundamental question about the appropriateness of using coercion by the police at the point of arrest. We are dealing with people whose lives are among the most chaotic of those with which the police will deal, and people whose relationship with the police is among the poorest. I question whether it is appropriate for that to be their entry point into drugs treatment. I say that because the old adage is that one can take a horse to water but cannot make it drink. It seems that the Government's aim is to take the horse to water, and then to stuff its head in the river regardless of the consequences. I am not persuaded that they are going to achieve their ends.

The RIA makes an interesting assertion when it says that

''Refusal and breaches will be kept to a maximum of no more than 5 per cent. by ensuring that the police and the drug workers at all stages of the process are fully able to explain not only the requirements but more importantly the benefits of complying with the requirements, which are not onerous—''

That is certainly open to question—

''and putting in place processes, which will make it easier for the drug misuser to comply with the requirements.''

If we consider the life patterns that have brought many of the people to the point that we are considering, I have to suggest to the Minister that that assertion is optimistic in the extreme. The Transform briefing also questions the figure of 5 per cent. It points out, quite reasonably, that

''Experience with drug treatment and testing orders, court ordered treatment and treatment as a bail condition suggests that a substantial minority, often as high as 25 per cent. of arrestees, will choose to go to prison, where they can invariably maintain their drug habit, than enter coerced abstinence-based treatment. These will inevitably be the most problematic and chaotic users  and the most prolific offenders. A recent NAO report on Drug Treatment and Testing Orders found that 80 per cent. of those on the Order had re-offended within 2 years.''

That is hardly a promising background for the measures that the Government seek to introduce.

A number of practical issues need to be addressed. I should like the Minister to go into some detail on the methodological and legal problems, and the history of false positives and false negatives, particularly in relation to class A drugs. The example that Transform cites is old, but one that I suspect remains true: that of those who test positive for class A because they have had something as innocent as a poppy seed bagel. There are other issues of greater concern. As the hon. Member for Chesham and Amersham has implied, there are legal issues concerning the possible use of the results of these tests when people are in custody, and what happens to the samples once the initial decision has been taken.

I would also be interested in the Minister's explanation for the basis on which she sees this as being a deterrent, either for drug use or drug-related offending. This has become a theme throughout the regulatory impact assessment, but its extent is not quantified anywhere in the assessment. What research has been, or will be, undertaken to establish the deterrent effect, if this is to come into law? The Home Office has never undertaken or presented any evidence to demonstrate the deterrent effect at the heart of this Bill. Such an effect seems to be marginal, and almost completely irrelevant to the chaotic lives of many drugs users. That is surely the point. The people with whom we are dealing will not see this in the same way that we, sitting here in this Committee Room, would see it. They are not impressed by the deterrent value in the way that we might be. Surely it is the offenders who have the most involved history, the most chaotic lives, who commit the most crime, that we ought to be striking at here. I suggest to the Minister that this clause quite simply fails to do that.

Finally, I come to a point made by Transform, which is slightly tangential to the clause, but fair none the less. To look at treatment purely in criminal justice terms, if we are to put treatment at the heart of our policy, we have to regard that as being a health issue as well. Why do we therefore have no measure at all of the health benefit to be had from this?

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

I have a slight concern about false positives. The all-party group on drugs misuse, of which I am the chairman, performed quite a detailed inquiry—followed up by DrugScope in a more detailed response—on testing of drugs. One of our conclusions was that the drug testing industry is totally unregulated. I am not saying that all firms that the police and others use are cowboys—far from it. Nevertheless, some are. Has the Minister, or her Department, given any consideration to regulating this industry? After all, it is a growth industry and this Bill will help to achieve that.

False positives can come about in other ways. I am concerned, for example, for those suffering chronic pain, particularly the pain that cancer produces. My wife had a dear friend, whom we have now sadly lost,   who had to take morphine for a long time. She led a normal life, shopping, going out to the cinema and so on. She was on morphine for more than two years towards the end of her life, to kill the terrible pain. That was, of course, legally prescribed. I do not know whether the Committee is aware of this, but when heroin gets into the body it undergoes a chemical reaction called deacetylation, and is turned into morphine. People who are legally on morphine could be—if, of course, they have committed a trigger offence, or an offence covered by new subsection (1A) (b) in subsection (3)—picked up by testing in the police station. These people are already very ill, and I am a little concerned about the humiliation that these people may suffer in police stations as a result of taking legal morphine.

Photo of Angela Watkinson Angela Watkinson Shadow Minister (Education) 4:15 pm, 1st February 2005

If someone were taking morphine as a prescribed drug, they would be able to show evidence of that.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

That is true, and I hope that that would happen in 100 per cent. of cases, but I fear that some such people will leak through the system in some police stations, and I would not want them to be caught by the drug-testing procedures being introduced. I hope that the police will be sensible, and that people will be able to produce prescriptions; of course, a call to the doctor would relieve them of that humiliation.

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

I cannot agree with the hon. Gentleman's assertion. I do not believe that any police constable faced with somebody who says that they take morphine to dampen their pain due to cancer would not make every effort to substantiate that, or would not accompany that person home so that they could show that they have the appropriate prescription. I hope that his fears are completely unfounded.

Photo of Brian Iddon Brian Iddon Labour, Bolton South East

I hope so too; I merely point out that false positives could arise in those two ways. I am particularly concerned about regulation of the industry.

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

I will try to answer the pertinent and interesting questions that have been raised. If I forget anything, I will try to take interventions.

The content of the clause is not new. We already have testing on charge in a number of our police stations. There was much debate about that, but the reason behind it was the huge number of people with drug-addiction problems who commit criminal offences. The present arrangements do not excuse someone from having committed an offence: due process will be followed and they will have to go to court. Regardless of the comments made about the concerns of DrugScope and Turning Point, with which we have a good relationship, there is a general welcome by those who have worked with drug addicts for years to the fact that we are finally trying to address the problem of people who fuel their drug habit through criminal acquisitive offences. There is a range of trigger offences.

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

Will the Minister clarify that? Will police officers have to nominate which class A drug they are testing for, or will it be for all class A drugs, in which case why is the word ''specified'' used?

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

As I said, heroin and crack cocaine are the specified class A drugs for which people are tested upon charge. All that we are doing is moving the testing process for those drugs to arrest stage instead of charge stage. In that respect, there is no change. As I said in the previous debate, those drugs are specified because of the NEW-ADAM survey, which examined the illegal income of arrestees, and found that 85 per cent. was generated by users of heroin and crack cocaine. I do not want to revisit that argument.

We are not doing anything different, except to move the bar to arrest stage. Generally, there has been agreement with what we are doing at charge stage, so why are we moving it to arrest stage? Through testing on charge, we have had the opportunity to monitor and consider the practice and impact of arresting on charge.

First, it has proved the initial point about drugs being linked to certain groups of crime. Secondly, it has indicated what we already knew from other evidence—it has been backed up by the implementation of those procedures—that large numbers of people have a class A drugs problem as specified by statutory instrument under the Criminal Justice and Court Services Act 2000. Thirdly, as my hon. Friend rightly said, DrugScope, Turning Point and Transform have pointed out that it is also to do with the process of engagement with individuals. I absolutely agree: testing is one part of the process, but the engagement of individuals is also important.

I wish now to address a couple of other matters. One of the issues raised by the police and arrest referral workers now working in that field—it has been referred to by a number of hon. Members—is that individuals who are seriously addicted to drugs are often chaotic in their use of drugs, which creates all sorts of problems in the custody suite at the police station.

One of the problems is that hours can often be lost when waiting to test on charge. The police and arrest referral workers both say that if they could test earlier they could start engaging the person earlier. That is particularly true of heroin addicts. When they are arrested, the police feel that they should be tested in order to ascertain whether there is a link between the   drug and the reason for the arrest; they want to engage the addicts in such a way that they can tell the addicts what is available.

Although more needs to be done, I am pleased to say that the growth in access to rapid prescribing in our drug intervention programmes has been a huge success. In the past 18 months, the waiting times came down, and in some places the turnaround time for that group is very quick. That is important, because we must find a way to capture such people's attention. We need to tell them that they can have a substitute and therefore do not need to leave the police station to get on the street for the next fix.

Photo of John Mann John Mann Labour, Bassetlaw

I thank my hon. Friend the Minister for giving way. I have been waiting for an opportunity to intervene, but I did not want knock her out of her stride on such an important point.

One specific point arising from what she said is vital—the specifying of class A drugs. One important piece of the analysis required is on diversion—for example, of methadone. The only real way to ascertain whether there is an increase in diversion is through the evidence of drugs testing. Is the Minister saying that methadone would not be specified and thus tested for? Such information, which would be used for different purposes from information on heroin and crack cocaine, could be provided to the health service and others involved in the criminal justice system in order to see whether the particular substitution being used is being diverted.

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

I shall check on that, and come back to my hon. Friend either today or later. I understand the point, though. Another side to testing is intelligence—that is, general intelligence, not to be used against specific individuals, about the usage of such drugs. If my hon. Friend will bear with me, I will return to the matter later.

We have been told about the need to build in more time to allow for effective engagement with individuals, and the provision would allow that. We know from what is happening in drug intervention programmes that many who are arrested and then charged are found to test positive for those drugs. That strategy and that process were approved in principle in the Criminal Justice and Courts Services Act 2000, but by making the present change through primary legislation, we hope to ensure that appropriate amendments can be made—for example, on the duties and responsibilities of the custody officer before charge.

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

The Minister says that the priority is engagement, and in that she is absolutely right. She made an interesting case for bringing forward the point of testing, but that would introduce an element of coercion. How does she think that will improve engagement?  

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

I will deal with that point, but I want first to deal with the several points raised about testing. I hope that the hon. Gentleman will bear with me. When I have dealt with them, I shall go on to the next stage—the mandatory assessment that he referred to.

One question, properly raised, was about the handling of the test sample, about the need to protect the individual and ensuring that samples are not used as evidence in relation to the offence that has been committed. In line with current legislation, the test result may be disclosed in order to inform decisions about bail in criminal proceedings, to inform decisions about the supervision of the individual, to inform court decisions as to the appropriate sentence—that would obviously include drug treatment—and for the purpose of ensuring that appropriate treatment and advice are available. The police will be able to use the test result to inform decisions on police bail. The new provision will additionally allow for information taken from the sample to be disclosed in order to inform decisions about attaching conditions to conditional cautions and for the purpose of requiring an initial assessment and a follow-up assessment.

I accept that there are elements of carrot and stick in trying to get people to engage with treatment. In response, I shall say a little about the drug intervention programme, the difference that it has made for those who have moved on to the assessment process and how the numbers taking treatment have risen. Test results are recorded on police and court files. The practice of keeping and destroying records varies, but police files in general are kept for seven years, then destroyed. For trigger offences, court files are destroyed in the following circumstances: in the case of acquittal, 12 months after the date of acquittal; in the case of conviction, 12 months after completion of the sentence. Those are important safeguards.

Two points were raised. The first was whether test results could be used in interviews in relation to the offence for which the person had been arrested or subsequently charged. I understand that that would not be an appropriate use of the information. The second question was whether the information could be used in a court hearing. Yes, it would be right and proper, in connection with the offence, for such information to be used in court. However, it is also right and proper, as it is now under the charging process, that when considering bail or when sentencing, the fact that a person is undergoing an assessment or seeing a drug programme worker should be taken into consideration.

We are trying—in many areas, we are succeeding more than ever before—to create a situation in which more people are presenting themselves for treatment. I accept what the hon. Gentleman said about the nature of the risks involved, and the problems of people going for treatment and failing and so on, but measures to harness treatment and offer something of quality will give people an incentive in terms of their final sentence and represent a step change. We are already seeing results in the increasing numbers of people going into treatment. They are also staying there much longer than in the past. 

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

On that last point, these welcome improvements are made under a voluntary scheme. Does the Minister anticipate that the positive result would be added to the data on that person held on the police national computer? Would that not be a further source of concern in the situation outlined by the hon. Member for Bolton, South-East in relation to people who, for innocent reasons, might give a positive test?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 4:30 pm, 1st February 2005

I was coming to the issue of false negatives and false positives. I will come back to mandatory assessment too, but I should first like to deal with some of the other points that have been raised.

I was asked where the 5 per cent. figure in the regulatory impact assessment came from. The breach rate for restriction on bail and for assessment is about 10 per cent., and it is about 1 per cent. for refusal of testing on charge. That gives some indication that the number of people refusing is perhaps not as high as some might think. The aim of the assessment clauses is to get as many drug misusers as possible into treatment, and not to prosecute them. Given that some drug misusers refuse to engage with us whatever we do, we estimate that the breach rate for testing on arrest and for assessment will be up to 5 per cent. We hope that the figure will be much lower as large numbers have not so far refused to take part.

I was asked about false negatives and false positives. Clause 16 answers some of those questions. My hon. Friend the Member for Bolton, South-East said that someone arrested for an acquisitive offence who found themselves testing positive might have a reasonable excuse. I hope that they would provide that information to the police officer so that the matter could be sorted out. No one wants to waste time if someone is on prescription drugs. The provision is not about testing anybody who is arrested, but is linked to acquisitive offences.

Anyone who believes a positive drug test to be false can ask for the test to be sent for further analysis by the Forensic Science Service. We are also ensuring in guidance that any assessment requirement under part 3 will be arranged after the further analysis is received. If the test proves negative, the requirement will cease. That builds in provision for a situation in which the result is unclear and the person is unhappy about it. Everything would be delayed until the more detailed analysis came back from the FSS. I hope that answers hon. Members' questions. I may have to seek advice if there are further points.

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

I am interested by the point raised by the hon. Member for Bolton, South-East and I should like to explore it in a slightly different scenario. Let us imagine that we are dealing with someone who has a history of drug misuse and acquisitive crime, which often go together, but who had been free from drugs for five years or so and then found himself in the situation described by the hon. Gentleman. How much of a fair hearing from an open mind does the Minister think someone in such a situation would get when they tested positive?  

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

It is rather hard to answer that question. The police will obviously deal with situations at their discretion at any time. The issue is that people have committed an offence and will be tested. I do not know if I heard the hon. Gentleman correctly, but unless he wants to repeat what he said, I will check Hansard to see whether we are missing out anything that he said.

Earlier, I mentioned the refusals that we have seen through the drug intervention programme and the criminal justice intervention programme, and how those have worked in practice. I have been to a number of custody suites and seen the whole process in action, and I have been reassured by the police focus and what they are trying to achieve in terms of the connection with the specified drugs, and by the way in which they have handled the process. Other people—not only police officers but arrest referral workers or even detention officers in the custody suites—may carry out the drug test, and I probably have not recognised that.

My hon. Friend the Member for Bassetlaw raised a point about methadone. We do not test for methadone, and nor does the test detect it. Although I understand his point about the misuse of prescribed methadone and how it may be used on our streets—issues of how prescribing takes place and shared care are very important—the link between crime and the misuse of methadone is not felt to be based on evidence. It is usually the case that a person is addicted to heroin, so might be using methadone then topping up on heroin, or something like that. However, if the problem that he raised comes up, methadone could be specified in a statutory instrument under the Criminal Justice and Court Services Act 2000, and we will keep the matter under review. Again, I will read Hansard and look into that issue.

Photo of John Mann John Mann Labour, Bassetlaw

I am not suggesting that there is a problem, but lots of people do. Statistics are collated not through testing, but based on voluntary information provided by the person on arrest. It is already possible to do an analysis over a period of time to see whether there is a trend. In my own area, there is no trend of an increase in methadone diversion. However, with officially prescribed substitute drugs—both buprenorphine and methadone—it would be useful to have such testing available both as evidence of the effectiveness of the drugs treatment and for the NHS and others to be able to see who is diverting and on what basis. Not to have such powers is rather a weakness, albeit a small one, in our system. Consideration ought to be given to it and, in particular, legislation should not debar.

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

My hon. Friend makes an interesting point. One of the matters that I will consider is the information that people provide over and above what they have been tested for. I will consider that issue, but I do not necessarily think that we have to deal with it in the Bill. I will have a look at what happens with the intelligence on what drugs are used, perhaps relating to my hon. Friend's earlier point about what other substances are used by people who use heroin or crack cocaine. As well as helping the individual, we are   trying to get a better fix—for want of a better word—on what is happening in local drug markets and in supply and, even if we use information other than testing, on what drugs are becoming part of the local scene.

Photo of Angela Watkinson Angela Watkinson Shadow Minister (Education)

Methadone is certainly an addictive drug. Could the Minister say how it would be classified were it not prescribed?

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

I do not want to be diverted into that area. We are talking about the testing on arrest at this stage. We could have a big discussion about all sorts of drugs, but these are obviously all controlled substances. Therefore their use is restricted, and there are clear arrangements about how they should be prescribed.

I agree with the hon. Lady in one sense: methadone is a very serious drug, and must be handled properly and in a way which, where it is used as a substitute, minimises the risk of people using other drugs on top of it, possibly leading to a fatality. It must also be managed and used so that it does not turn up on our streets for other people to use.

My hon. Friend the Member for Bolton, South-East raised the issue of accreditation. The Home Office approves the equipment to be used by the police for drug testing within the drug intervention programme areas. The approval process is subject to a competitive tender, where the successful equipment supplier is required to comply with a rigorous specification and undergo extensive laboratory testing. The specification and the voluntary testing are devised and undertaken by expert forensic advisers to the Home Office. Obviously, this should not be confused with workplace or school drug testing. That is not an area that we feel that we have responsibility for. But my hon. Friend raises some important points about expansion. Schools or employers wanting to go down this route should think about the type of kit they might be using, how it would be used, and what benchmark would be used in accreditation.

I hope that has reassured my hon. Friend that, in terms of police testing, we think that it is very important that it is accredited and approved by the Home Office. It is not just left up to police forces to pick something off the shelf. Another reason for that is that we are putting a huge amount of funding into this programme, and we want to ensure consistency in quality of approach throughout the police forces currently operating within it, and as it expands. A lack of consistency would affect us in all sorts of ways, not least with regards to the quality and vigour of the information we get back.

On the issue of assessment, I have had many discussions over the last 18 months with lots of different people—from the voluntary and private sectors, within Government and the Department, users, parents, and carers—in many different parts of the country about this whole issue and the element of coercion in the whole process. Funnily enough, I have found that, in a number of areas, the general response   has overwhelmingly not been a negative one—for example, with regard to conditions on bail and the fact that we are saying that a user's participation could affect their sentence. An element of coercion has been quite helpful for many drug users in making them face up to the situation they find themselves in. Part of that is getting people in front of them who can explain to them what sort of support, and care plan, they are likely to receive. For a number of problematic drug users, it is not that they have not had treatment in the past. They have often had treatment in different forms, but it has not necessarily worked. Many of them have been in prison before. They have had detox and come out of prison, but at the end of the day there has been no throughcare and aftercare.

Part of what we are attempting to do is demonstrate that there has been a change. There is more to be done, but the waiting time for treatment has gone down nationally, and in drug intervention programme areas it has gone down faster. The wrap-around care and support that follows people through the criminal justice system and which will follow them as they leave it, whether they have had a community-based sentence or a custodial sentence, is something the like of which we have never seen.

When I have spoken to users or former users who have come through a drug intervention programme or for that matter been subject to a drug testing and treatment order and I have asked them about the more coercive elements, the response has been good. Sometimes they have made the point referred to by the hon. Member for Orkney and Shetland: that one can lead a horse to water but one cannot make it drink. I do not like to use that expression about people, but he used it and I shall too. Some users, when told, for example, that they are subject to a DTTO, have reacted in a quite hostile and negative way. At that point, when they are forced to face their situation, the quality of the engagement will make a difference to whether their mindset about the treatment will be changed.

I met such an individual in Manchester not long ago—a real hard case who had been round the block hundreds of times, to whom, as far as he was concerned, nothing more could be offered—but I am pleased to say that after he had been involved in a programme for three months or so, his life was being turned around. That is not to say that he would not face risks and difficulties in the future, but the change was happening, and it would not have happened without a wake-up call telling him that he was going to be a part of the programme, and that whether he liked it or not he would be assessed and see someone and turn up for the appointment.

Of course, the important thing is to develop best practice to encompass issues that the hon. Gentleman and DrugScope raised, such as attendance at appointments, and recognition of and dealing with chaotic lifestyles. However, we have reached the point at which we need the assessment to be brought closer to the test, and made part of the process.

For a long time I have felt, having been to see testing in police stations, that the process of conducting the test, followed by the wait for the person to decide whether to see an assessment worker voluntarily, is a lost opportunity. It is right to make the mandatory assessment element part and parcel of the testing process.

I hope that I have answered most of the questions of hon. Members and not missed anything. If, having consulted Hansard, I find I have missed something, I shall write to hon. Members as appropriate.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.