MISUSE OF DRUGS BILL (Hansard, 9 March 1971)

HL Deb 09 March 1971 vol 316 cc33-41 33

§ 3.58 p.m.

§ Report stage resumed.

§ Clause 36 [Meaning of "corresponding law"]:

§ LORD WINDLESHAM moved Amendment No. 10: Page 25, line 32, leave out from ("aforesaid") to ("that") in line 34 and insert ("to the effect")

§ The noble Lord said: My Lords, it might be for the convenience of the House if I spoke to Amendments Nos. 10 and 11 together since they concern the same point. The effect of these two Amendments will be to re-word subsection (2) of Clause 36, which deals with the meaning of the expression "corresponding law", so that it will read as follows: A statement in any such certificate as aforesaid to the effect that any facts constitute an offence against the law mentioned in the certificate shall be evidence, and in Scotland sufficient evidence, of the matters stated. Subsection (2), as it stands now, makes a certificate conclusive as to the effect of a "corresponding law" and as to whether particular facts constitute an offence against it. Subsequent to the Commitee stage, the noble Lord, Lord Airedale, drew my attention to this provision and pointed out that it ought to be possible for an accused person to bring expert evidence to the contrary. The Government accept that this change could be made without causing undue difficulty to the prosecution, and the Amendment is designed to permit this. The certificate will, however, continue to be conclusive as to whether or not an overseas law is a corresponding law in the sense described in subsection (1), and the Amendment will not change the position in that respect.

§ I might also add that the noble Lord drew my attention to one other matter on this clause. The sidenote to Clause 36 at the moment reads, "Meaning of 'corresponding law'", although, as the noble Lord, Lord Airedale, pointed out, there is a point of substance here as well as a point of interpretation. Therefore, although the sidenotes are not part of the Bill and consequently no Amendment is needed to alter them, when the Bill is reprinted this sidenote will be altered so that it will read, "Meaning of 'corresponding law' and evidence of certain matters by certificate". My Lords, I beg to move.

§ LORD AIREDALE
My Lords, I thank the Minister for his kind reference to me. I am bound to say that I earnestly hope the prosecution will rely upon this subsection in only rather exceptional cases, because it is, in my submission, objectionable upon two separate grounds. First, it enables the Executive to state 35 what facts constitute an offence. That is not, properly speaking, an Executive function at all but a function of the Judiciary. Secondly, it enables the Executive to do this by means of a certificate. Of course, the objection to proving anything by means of a certificate is that a certificate cannot be put in the witness box so that the truth of what it says may be tested by cross-examination. So I would hope that only in cases where the prosecution are satisfied that the evidence which they seek to prove by means of a certificate is quite incontrovertible and is not going to be disputed by the defence, will they invoke this subsection and prove this part of their case by means of a certificate: and in all other instances, where there is likelihood of any dispute about the matters to be proved between the prosecution and the defence, which I hope will be the majority of cases, I hope that the prosecution will prove their case by the time-honoured method of calling witnesses who can be cross-examined.

§ LORD FOOT
My Lords, I go further than my noble friend in this matter. I believe that this subsection is in fact incurably defective. It contains a very serious defect. What the two subsections together say, even as amended, is that it is for a foreign Government, when called upon to do so, to pronounce as to whether a certain set of facts add up to an offence against the law of that country. As my noble friend has said, it is of course always objectionable and anomalous that the Executive in any country should be called upon to pronounce what the meaning of the law of that country is. As he has said, that is a matter for the Judiciary. This defect is incurable.
I would illustrate my argument, if I may, by referring to the notorious Sweet case, the case in which a lady was prosecuted for being concerned in the management of premises when those premises were in fact used for the consumption of cannabis. What I should like the House to consider is this. Supposing that some other country—let us say France—had a law similar to this clause of the Bill. A prosecution in France, in considering prosecuting somebody there, could apply to the British Government to say whether a certain set of facts constituted an offence in English 36 law. Supposing the French Government back in 1968, or whenever the Sweet case came up, had applied to the British Government and said, "Will you please tell us whether the following facts constitute an offence in English law; that is to say, a person is concerned in the management of premises and those premises are in fact used for the consumption of drugs or cannabis?" The answer they would have been given, almost certainly, before the Sweet case reached the House of Lords, is "Yes. An offence is committed, and it does not matter at all in English law whether the person concerned knew that the premises were being used in the way concerned." In other words, this is an absolute offence and there is no question of mens rea. That is almost certainly the certificate which would have been given by the British Government in those circumstances to the French prosecution. And of course it would have been wrong, because the House of Lords eventually decided that this was not an absolute offence and one always has to prove knowledge or always has to prove mens rea. Therefore, what would have happened is this. The French prosecution would have been given a false statement, an inaccurate statement, as to what the state of British law was and what facts added up to an offence.
It goes further than that. Supposing a person was being prosecuted in France and this certificate was delivered to the French court. How could the person being prosecuted possibly challenge what was said in the certificate? How would it have been possible? When the court is told by the British Government that it is illegal if one is concerned in the management of premises which are used for the consumption of any drugs, and that is so whether one knew about it or not, how can the person challenge it? It is impossible to challenge. The only way in which he could challenge it would be to say, "Let this matter go back to a British court and let the British court decide whether the judgment of the Executive upon this matter is right or wrong." Of course, that is something which is quite impossible for the accused person to do. Therefore, although my noble friend has achieved a considerable advance in cutting out from this clause the words "conclusive evidence"—and it 37 is a marked advance—in my submission, in practice, the evidence of the certificate will be conclusive because it will not be possible in practice for the accused person to challenge what is said in the certificate. Therefore, my Lords, I think that this is an incurably bad provision and I hope it will be possible for the noble Lord to look at it again before we reach the next stage of the proceedings.

§ LORD BEAUMONT OF WHITLEY
My Lords, my noble friend Lord Foot has made out a very good case. There appear to be major snags which might emerge for justice. I hope that the noble Lord, Lord Windlesham, will seriously look at this matter again. I rise briefly to ask a minor question. Perhaps the noble Lord, Lord Windlesham, can enlighten Southern laymen, of whom there must be a few in this House, as to the exact meaning of "sufficient evidence" in Scottish law. It reads as if it is exactly what we are trying to get rid of, which is conclusive evidence; but presumably it does not mean that. Could the noble Lord enlighten us?

§ LORD WINDLESHAM
My Lords, the foreign law provisions of the dangerous drugs legislation were first introduced in the 1923 Act to which I referred, and in the terms reproduced in Clause 36 of he Bill. It is interesting to note that if any prosecution has been brought under these provisions in recent years the Home Office has no record of it. The noble Lord, Lord Beaumont of Whitley, asked me about the moaning of the words "sufficient evidence" in relation to Scottish law. I am advised that the use of this expression does not bring about a different situation in Scotland from that in England and Wales: it merely reflects the fact that the normal rule in Scotland, unlike England and Wales, is that evidence must be corroborated. That is to say, the evidence of one witness is not normally enough. Where there is to be a departure from this rule it is necessary to make it clear that the uncorroborated evidence is regarded as sufficient.
The noble Lord, Lord Airedale, said that he hoped that in practice the prosecution will use certificates only to prove matters which are irrefutable and in all other cases will produce witnesses who can be cross-examined in a way that a certificate cannot be cross-examined. 38 Where an offence under a "corresponding law" might be relevant, it is likely that the prosecution will seek to obtain a certificate from the overseas Government concerned; and, having obtained it, it is likely that it will be presented in evidence to support their case, whether or not the proposition contained in the certificate is irrefutable.
I should point out to noble Lords that this Amendment is intended as a concession to meet the points put forward by the noble Lord, Lord Airedale. In its new form Clause 36(2) will allow the accused person to call an expert witness to contest the evidence containted in the certificate, and to that extent it cannot really be said that he will be al a disadvantage. Indeed, if anything, the disadvantage might lie with the prosecution inasmuch as the defence could call an expert witness without giving notice that it intended to do so. To avoid this situation, in such a case it seems probable that the prosecution would be likely to arm itself with its own expert witnesses as well, to support the certificate, in any case where it considered that tie material in the certificate might be contested. One would not therefore expect a prudent prosecution to rely on a certificate alone, unless the material is clearly irrefutable.
The word that the noble Lord, Lord Airedale, particularly dislikes in the clause as originally drafted was "conclusive "—that the certificate should be regarded as conclusive—and this Amendment meets that point. It would probably be the wish of the House to pass this Amendment which goes some way towards meeting the arguments put forward by the noble Lord, Lord Airedale; and if the noble Lord, Lord Foot, in the light of the wider considerations that he has put forward as to the necessity for a provision of this sort at all, wants to pursue those arguments he will have an opportunity to do so on Third Reading.