§ 3.25 p.m.
EARL ST. ALDWYN
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Misuse of Drugs Bill, has consented to place her interest so far as it is concerned on behalf of the Crown at the disposal of Parliament for the purposes of the Bill.
§ Moved, That the Bill be now read 31a.—(Lord Windlesham.)
§ On Question, Bill read 31a, with the Amendments.
§ Clause 25 [Prosecution and punishment of offences]:
LORD WINDLESHAM moved Amendment No. 1:
Page 20, line 13, leave out subsections (4) and (5).
§ The noble Lord said: My Lords, it might be for the convenience of the House if we confined ourselves on Third Reading to discussing the narrow issues arising out of the two Amendments, the first, in my name, to Clause 25, and the second, in the name of the noble Lord, 994 Lord Foot, to Clause 36, and left to the Motion, That the Bill do now pass, any final general observations on the Bill as a whole.
This Amendment, to leave out subsections (4) and (5) of Clause 25, has been introduced on Third Reading in order to help noble Lords who did not have sufficient time to study it before Report stage on March 9. I agreed to withdraw the Amendment on that occasion to allow time for it to be discussed further, and the noble Lord, Lord Shepherd, speaking from the Front Bench opposite, said:
I should like on behalf of noble Lords on this side of the House to thank the noble Lord for the step he has taken. I am certain that it is the right one, and it gives an opportunity for all noble Lords to consider the matter. I can assure the noble Lord that when the Amendment is re-presented on Third Reading we shall deal with it expeditiously."—[OFFICIAL REPORT, 9/3/71; col. 30.]
May I remind your Lordships of the origin of this Amendment? In a debate on the Report stage in another place the Member for Wimbledon, Mr. Havers, moved an Amendment to leave out subsection (4) of Clause 25. The honourable and learned Member had support from both sides of the House for his contention that this subsection was
an out-of-date and unnecessary restriction of the powers of the police and the courts."—[OFFICIAL REPORT, Commons, 9/12/71; col. 601.]
The Amendment was withdrawn on that occasion, on an undertaking being given by the Solicitor General that the proposal would be further considered.
§ The Government have carefully considered the views that were expressed by noble Lords during the debate in this House on March 9, and also by honourable Members in another place, and our conclusion is that, on balance, there are good grounds for continuing with this Amendment. I will state the balance as clearly and as briefly as I can. I shall do so at a little length because this Amendment was questioned last time it was raised. I think that there are a number of arguments which have not been touched on in our own discussion on Report or in another place.
The first is the factor of protection for the defendant. The provision corresponding to subsection (4) was first introduced in 1923, when the law to control dangerous drugs was quite novel
and there was no widespread drug problem. Though the relevant Parliamentary debate at that time was very short, the intention seems to have been quite clear: to safeguard an offender from suffering the full rigours of the law at the hands of an inexperienced Judiciary. We must ask ourselves how far that consideration is relevant to-day. At Report stage on the Bill now before your Lordships the noble Lord, Lord Foot, argued that:
… in the consolidating Act of 1965, only six years ago, it was not thought fit to delete this provision from the law. So as recently as that it was decided proper to keep it in."—[OFFICIAL REPORT, 9/3/71; col. 27.]
§ With respect, I think that that is overstating the case. The 1965 Act consolidated the Acts of 1951 and 1964. The 1964 Act was a measure introduced late in the Session to make such limited changes in the law as were necessary to allow Her Majesty's Government to become a party to the Single Convention. No consideration was given in that Act to the question whether or not the fiat of the Director of Public Prosecutions should be retained; nor was it considered, of course, in the 1965 Act, which was confined to consolidation. What will be generally agreed, however, is that during the past five years the numbers of convictions for drug offences have risen substantially; there is a greatly increased public awareness of the drug problem; and the general question of sentencing policy as regards drug offenders has been a frequent topic of professional and public discussion.
§ Whereas under the existing law the power may have been thought to be appropriate for the large-scale trafficker, the context of the argument has now changed. The Bill distinguishes between individual drugs; it distinguishes more clearly between offences of trafficking and offences of possession; it removes the element of strict liability which has caused difficulty and concern in recent years. So far as penalties are concerned, the maximum level of penalties for simple possession is reduced, while some penalties for trafficking are increased. The overall effect, in the Government's view, is to make the intention and the emphasis of the law more easily understood, while preserving for the courts a wide discretion to deal with the individual offender. On 996 that basis, and taking into account the general increase in public awareness of drugs and their different dangers, it is the Government's view that the case for retaining the Director's fiat is very much weaker than before. If those who have doubts about the Amendment are moved mainly by their misgivings about the maximum penalties in the Bill, I would point out that retaining the Director's fiat gives very little extra reassurance alongside the ordinary right of appeal against sentence.
§ Closely connected with this is the second factor which I should like to raise for your Lordships' consideration this afternoon; namely, guidance to the police. It is of interest to note that there are some 45 statutes which contain provisions requiring reference to the Director of Public Prosecutions before legal action can be instituted. When one studies the list of these Acts, however, it becomes apparent that there is a principle lying behind this particular safeguard; that is, to ensure that prosecutions are not brought where the evidence is insufficient to support them. The circumstances in which these Acts indicate the desirability for the police to seek the advice of the Director of Public Prosecutions appear, for the most part, to relate to the degree of experience which the police are likely to have of dealing with the offences in question, either because they are likely to occur infrequently or because the law is new or somewhat obscure and experience of its working has to be built up. I have a number of examples, but I do not think I need trouble your Lordships with them.
§ So far as offences under the drugs law are concerned, the Government consider that the police generally now have sufficient experience to judge whether or not a case should be prosecuted in the higher courts, and so not be fettered by the express requirement for the Director's fiat.
§ Finally, there is a third factor, that of convenience, as to which there are two aspects: timing and work load. In another place it was argued that the requirement for the Director's fiat could cause delay. Delay can arise in two ways. Ordinarily magistrates have the power, if in the course of summary trial the facts of the case reveal it to be of a more serious nature than they consider 997 appropriate to deal with summarily, to stop the summary trial and commit it for trial to a higher court.
§ In proceedings brought under the Dangerous Drugs Act 1965, magistrates must refer a case to the Director for him to initiate proceedings on indictment, the accused being remanded meanwhile, and most likely remanded in custody. Under Clause 25(4) of the Bill the Director has only to give consent to the committal to the higher court, but there may be much the same delay to the committal proceedings from his involvement in that way. Again, similar delays arise when several persons accused of drug offences are dealt with together by a magistrates' court and one of them elects to go for trial by jury. When this happens it is the custom for the magistrates' court, for obvious reasons, to commit all the defendants for trial.
§ As regards the work load, the prospective burden on the Director's Office cannot be overlooked. In each of the last three years, between 150 and 250 cases per annum have been referred to the Director of Public Prosecutions under the existing drugs legislation. Each case involves careful review, and we must ask ourselves the question: is this burden justified by the benefits?
§ In conclusion, it is the Government's view, having given much thought to this matter since it was first raised in another place, that when all these considerations are taken together the Amendment is reasonable, and is acceptable, because it removes an unnecessary complication from the administration of the law without a significant threat to civil liberties. My Lords, I beg to move.
§ 3.36 p.m.
§ BARONESS WOOTTON OF ABINGER
My Lords, I very much regret that I was not able to be present at the Report stage of this Bill when this Amendment was first moved by the noble Lord, Lord Windlesham. I greatly appreciate his courtesy, in response to representations that were made by some of my noble friends, in agreeing to postpone the matter until the Third Reading. I could only wish that during the interim his second thoughts had led him to a different conclusion.
The noble Lord has argued—and he used this argument on Report stage— 998 that the growing experience of the police and the courts makes it no longer necessary to have the intervention of the Director of Public Prosecutions in cases where the magistrates wish to commit for trial. If I may say so, I think that is very much a metropolitan view. There is great experience, I have no doubt, in Birmingham, in London, and in other large urban centres; and the police and the lay magistrates, as well as the stipendiaries, are very well versed in the present state of the drug scene. But the misuse of drugs is highly mobile: it is not evenly spread all over the country; it turns up unexpectedly in rural districts and small towns where neither the police nor the courts are accustomed to it, and I think it would be rash to remove this defence while that situation remains. It is also true, of course, that the drug scene changes, and it is not sufficient to be up to date with what are the dangerous drugs, the very dangerous drugs, and the rather less dangerous drugs at the moment. One has to keep pace with an ever-changing scene, and this puts a considerable tax upon the police and magistrates.
The noble Lord has suggested that we are putting a burden upon the Director's office, a burden of about 150 to 250 cases a year. But every one of those cases relates to an individual, who deserves the fullest consideration. It may also be said that even though there is delay—and we all hate delay—in the administration of justice, it is better to get the answer right in the end. If there is pressure on the Director's office I feel confident that it cannot be greater than the pressure on the courts. If the effect of referring these cases to the Director is in some degree, even a small degree, to reduce the number of cases that eventually go to the higher courts, there is at least a compensating gain.
The noble Lord has pointed out that this Bill will be making new law. It is, in effect, both consolidating and adding a number of new provisions. There are powerful reasons why this is not the moment to remove this defence. The first is the novel features of the Bill. It reclassifies drugs, and all the courts have to familiarise themselves with what this reclassification involves. It makes it much easier for new drugs to be added to the list of controlled drugs, and for 999 other drugs to be taken off. It provides—and I think this is one of its better features—a highly flexible procedure for dealing with the drugs that are to remain on the controlled list. It distinguishes between trafficking and possession, and this is a distinction which in some cases is going to be a very nice one. We think of trafficking as being done by people who deal possibly even in tons—certainly in hundredweights—of certain drugs; but trafficking is also done on a very small scale.
All these new features have to be mastered by the courts and by the police, and—what I think is extremely important, and it has not been mentioned by the noble Lord—the Bill creates quite new offences. It also creates a number of new offences which intimately concern the medical profession—offences of over-prescribing, and prescribing in defiance of a direction from the Secretary of State. It is therefore, in many respects, a new and very complex law. That is my first reason—additional to the reasons which the noble Lord, Lord Windlesham, gave—for saying that now is not the time to remove this defence.
My second additional reason relates to the penalties. The noble Lord has suggested that the fact that the penalties are actually raised by this Bill is irrelevant, but he is there in conflict with the Solicitor General. When this matter was raised in another place, the Solicitor General said:In view of the high penalties which the Bill provides for the major offences, it makes sense to preserve the requirement for the Director's consent to committal."—[OFFICIAL REPORT, Commons, 9/12/70; col. 602.]However, the Solicitor General said that he would take the matter away at that stage, and would think about it again.
As the noble Lord, Lord Windlesham, has said, this provision, in one form or another, goes right back to 1923 (when, admittedly, the whole situation was very different from what it is now), and it was re-enacted in the Dangerous Drugs Act 1965. In 1968, the Advisory Committee on Drug Dependence specifically recommended in their Cannabis Report that this provision should be retained. It was in the first version of this Bill as introduced by the late Government in the spring of 1970. It was in the 1000 identical second version of this Bill as introduced by the present Government in the summer of 1970. The provision emerged from another place untarnished. It remained in the Bill as it came from another place, and it passed unchallenged through the Committee stage in this House. I submit that this is not the moment to remove a provision which has successfully stood so many tests, and least of all is it the moment to remove this defence for people who may be unnecessarily sent for trial when the Bill raises penalties, creates new offences and very greatly extends the powers of the Secretary of State.
§ 3.44 p.m.
§ BARONESS SEROTA
My Lords, for the Record I should like first to apologise both to the House and to the noble Lord, Lord Windlesham, for the remarks I made on the Report stage of the Bill about the timing of the tabling of this Amendment. The recollection of the noble Lord, Lord Windlesham, was correct and my information, though given I am sure in absolutely good faith, was incorrect, due, I am quite certain, to the communications difficulties that we were experiencing at that time. I am therefore particularly grateful for the noble Lord's generosity in withdrawing the Amendment at that stage, in order to give us further time to consider its implications.
Without wishing to go over again the ground that I covered last time, as the House will know I share some—though not necessarily all—of the doubts and misgivings which have been so well expressed by my noble friend Lady Wootton of Abinger. Having listened very carefully to the explanation to-day by the noble Lord, Lord Windlesham, I wonder whether he would be prepared to give an assurance to the House that the proposal to leave out subsection (4) from Clause 25 will not in any way be used to encourage prosecutors or magistrates' courts to proceed by way of indictment, when summary proceedings would meet the needs of the case. If he were prepared to give that assurance, and also to make that very clear in any circular or guidance that he and his right honourable friend will be giving to the appropriate authorities when this Bill comes into operation, I could accept the case that 1001 he has made to-day. Like the noble Baroness, I too wish that this had come forward much earlier and I share her concern about the removal of this kind of check. But, in all the circumstances, I should be prepared to accept this Amendment provided that we received very clear assurances on the lines I have suggested.
§ BARONESS BIRK
My Lords, I should like to support what my noble friends Lady Wootton of Abinger and Lady Serota have said. Having listened very carefully to the Minister, and understood the points he made, I still feel very uneasy about the deletion of these subsections at this particular time. I say this as a magistrate because, as I think the noble Lord, Lord Windlesham, will agree, whatever people are practising they usually like to have a degree of independence and do not like to pass decisions on to somebody else. At the moment, the drug scene is a very emotive subject and—with respect to my noble friend Lady Wootton of Abinger—there is still a great difference, even in the Metropolitan area and in the big cities, between one court and another. I do not believe that magistrates, and even the police, are as well informed, or are able to be as well informed, as they should be to deal with these matters at the present time.
As the new magistrates come on to the bench after the training which they will have received—which is a great improvement on the situation in past years—they will presumably be kept very much more up to date. But unless the noble Lord, Lord Windlesham and the Home Office are considering having refresher courses on this whole question for sitting magistrates, then the position is even more worrying. The number of cases which the noble Lord gave for a year do not seem to be too great for them to be dealt with by the office of the Director of Public Prosecutions, and I still feel extremely uneasy that these subsections are being deleted.
§ LORD CONESFORD
My Lords, the noble Baroness, Lady Wootton of Abinger, speaks with so much experience as a magistrate and puts her case so cogently that we can be quite certain that we have had the case on both sides stated as well as it can be; and of course we are on a fairly narrow point. I think the noble 1002 Baroness made one remark in her speech which was a slip, when she talked about this Amendment abolishing a defence. I do not think it really—
§ BARONESS WOOTTON OF ABINGER
My Lords, I did not of course mean a defence in the strict legal sense. Perhaps I should have used the word "barrier".
§ LORD CONESFORD
My Lords, I think it may have given the impression in some quarters that some defence that would have been available if these subsections were not deleted would no longer be available. The noble Baroness has been good enough to make it clear that that was not at all her intention, but I think that the Minister is right, for this reason. It seems to me that to have this complication of a reference to the Director of Public Prosecutions, unless some really useful purpose were served thereby, would be a mistake involving unnecessary work, complication and delay. If I thought that there were any accused persons who would be liable to go to trial if this Amendment were carried, who would not be liable to go to trial in the end if this Amendment were not carried, I should have a great deal more sympathy with the objection to this Amendment. But it seems to me that it is going to make no difference to the accused person; that the reference to the Director of Public Prosecutions would not result in the case not going to the court for trial. In those circumstances, my Lords, I think the arguments of the Minister are very cogent on the grounds of convenience.
Let me finally come to the question of severe penalties. I cannot see, in spite of the respectable legal authorities who have used this argument as a defence for the clause as it stands, that the severe penalties are really very germane, because if the wrong penalty is imposed there is always the remedy of appeal. I cannot see that any injustice is risked if we delete these subsections, and I cannot really believe that the question of the size of the penalty is relevant when we are making up our mind.
§ LORD LEATHERLAND
My Lords, I have given some rather serious consideration to this question while the debates on this occasion and on the earlier occasion were proceeding, and it seems to me as though the issue before 1003 us is whether we have or have not confidence in the magistrates' courts, because nobody is likely to have a penalty imposed upon him unless he is found guilty. If he is found guilty, whether by a magistrates' court, by a court of quarter sessions or by a higher court, then he deserves that penalty; but if he is not found guilty the penalty will not be imposed upon him. If it is suggested that magistrates are not sufficiently intelligent and are not sufficiently unemotional in dealing with this rather emotional question, then, if we were going to allow magistrates to impose penalties instead of allowing magistrates to send these cases to a higher court, we might have a complaint; and if we are still lacking confidence in magistrates, then the fact that the magistrates decide to send the matter up to a higher court, where there will be a legally qualified chairman, seems to me to be a move in the right direction. I should have felt a little uncomfortable had the Bill been allowed to stand as it is. I shall feel very much more comfortable if, as the noble Lord, Lord Windlesham, has suggested, we delete this particular passage from the measure.
§ BARONESS SUMMERSKILL
My Lords, I should like to say something at this stage. I took part in the debates at the other stages of the Bill and I believe that my noble friend Lady Wootton of Abinger felt that I spoke rather strongly when I appealed to your Lordships not to be tempted to deal too leniently with this class of offender and when I said that, on reading the 27 Amendments set down by the noble Baroness, in my opinion none of them should be supported at all. We are talking about an offence which somebody has now described as emotive and which was described at other stages of the Bill as something we knew little about. By a curious coincidence, in the course of the passage of this Bill investigations have been made by the only research group which is doing major research into this subject. Professor Paton is the Professor of Pharmacology at Oxford. He has, as we have heard to-day, of course, been supported by the Medical Research Council. He has just been given another £10,000 for three years. He has thought fit to give publicity to some of their findings, and, my Lords, we can no longer 1004 go on saying that we know nothing about this.
May I read to the House some of the information that is now emerging from this group?In one experiment, ten mice were given a daily injection of cannabis. By the end of a week all ten were dead—yet five times the amount of alcohol administered to other mice over the same period produced no fatalities.This means that regular pot smokers are progressively building up high, possibly even dangerous, concentrations of THC"—that is the main active ingredient—in their bodies.…But one cannot ignore more general issues. If one were to view cannabis simply as a new drug which might be introduced into medicine, the evidence we already have of health hazards would rule it out.If people are going to reject DDT, cyclamates and dieldrin, I certainly think they ought to reject cannabis.Professor Paton said one major question that still remains to be answered is whether cannabis has a thalidomide-type action on pregnant women.This is difficult to find out because the population using cannabis is not one which is available for scientific study.But he added that what his team has discovered so far is consistent with the findings of two Jamaican scientists who treated rats with crude cannabis.Their little-publicised experiments showed that when pregnant rats were given the drug during the vulnerable period of gestation, only 13 per cent. of the offspring were normal. Of the remainder, 57 per cent. were deformed, and nearly 30 per cent. were the quivalent of early abortions.
§ BARONESS WOOTTON OF ABINGER
If my noble friend will give way, may I ask her what these admittedly important experiments have to do with the distribution of powers between the magistrates and the higher courts?
§ BARONESS SUMMERSKILL
It has a great deal to do with it, because what we are talking about now, and what we were talking about at the other stages of the Bill, is precisely what penalties should be suffered by people who are trafficking in cannabis. We were told time after 1005 time by the noble Lord, Lord Foot—it is in Hansard, and I read it again to-day—
§ LORD BEAUMONT OF WHITLEY
My Lords, is the noble Baroness aware that we are dealing in this Amendment with all the offences under the Bill, covering a very wide range of drugs, and that cannabis is a very minor part of it?
§ BARONESS SUMMERSKILL
Certainly, my Lords, but we have been told over and over again that in this Bill we are talking about something of which we have little knowledge. I was inclined to agree. On the other hand, I thought that if we had little knowledge we should not proceed in a way which might treat too lightly those people who are guilty. The noble Lord, Lord Foot, in conclusion, said that it would be a complete break from the principle of categorising drugs according to their level of harmlessness if cannabis, which was not demonstrably harmful, was put into a higher category not because it was harmful in itself but because somebody asserted that it led on to heroin.
What I am saying now—and I am sure that the noble Lord, Lord Foot, is fair enough to listen to and accept this—is that since he made that speech at the beginning of the passage of this Bill these investigations have been given publicity, and they have shown that cannabis is demonstrably harmful. Therefore, I say now, when we are discussing penalties, that I do not think that the old arguments which may have obtained when we knew so little about it should still obtain when we have this authoritative knowledge.
§ LORD WINDLESHAM
My Lords, I am grateful to noble Lords who have taken part in the debate on this Amendment. What we have to make up our minds about is whether or not this procedure, that the Director of Public Prosecutions should give his consent before proceeding by way of indictment, is a safeguard for somebody who has been accused of an offence against the drug laws. That has to be weighed against the administrative burden. We have to be clear about this. The burden must not be over-emphasised. As the noble Baroness, Lady Wootton of Abinger, correctly said, if there were only one case in which 1006 injustice was prevented, a procedure would be justified. But the Government are not satisfied that in practice there is likely to be any lessening of safeguards.
The noble Baroness mentioned that this Amendment comes late in the proceedings of this Bill in this House. That is a point that can be put forward; but I would point out that the Amendment was first put down on Report in another place. It received all-Party support. She correctly quoted my right honourable friend the Solicitor General. He gave what appeared to the Government at that time to be a justification for the clause as the Bill then stood, but at the end of that debate, in the face of unanimous support for the Amendment from both sides of the Chamber and from the Opposition Front Bench in the person of Mr. Elystan Morgan, who spoke in support of the Amendment, the Solicitor General undertook to take it away and think again. I undertook to withdraw the Amendment which had been put down here because I felt that certain noble Lords might not have had sufficient time to study it.
For these reasons it comes late before your Lordships, but this time lapse has enabled us to go carefully into what I have admitted to be the balance of arguments involved. I should not regard the Director of Public Prosecutions as being excluded if this Amendment were accepted; his involvement would be secured in other ways. I should tell the House that the Director supports this Amendment; from his point of view, the only virtue of retaining in the Bill the provisions requiring his consent would be that they would ensure his having complete information of prosecutions in serious drug cases. But this is something that can be done administratively. Secondly, in those areas of the country where drug offences may not be so common or in those areas where they are frequent but the police are uncertain, they can, and do, consult the Director informally and obtain his advice. Thirdly, we cannot really assume that because somebody may proceed to the higher courts to have his case heard on indictment—and he has a right to do that already; he can elect to go for trial by jury—he will by that act be likely to get less fair treatment than he does in the magistrates' court. The balance of presumption must be rather the other way round.
1007 The noble Baroness, Lady Serota, speaking from the Front Benches opposite, made a very moderate and reasonable speech. She was concerned that the effect of dropping the procedure envisaged in the Bill might be to encourage the police or the magistrates' courts to proceed by way of indictment when a summary prosecution would be more appropriate. She asked whether I could give an assurance on that point. I am pleased to be able to do so. This is a fair point to put; we cannot be absolutely certain what every bench of magistrates will do in every set of circumstances. I can say that in any circular sent to the police or to the courts on this matter my right honourable friend will be willing to draw their attention to this point. With that assurance given at the request of the noble Baroness, I hope that your Lordships may be willing to accept this Amendment.
§ BARONESS WOOTTON OF ABINGER
My Lords, before the noble Lord sits down, can he tell us in how many of the 150 to 250 cases handled by the Director has committal been refused?
§ LORD WINDLESHAM
My Lords, I had sat down, but I have the figures and and an explanation of them. It is a long and detailed explanation. What I shall do is give the House the figures and then write, or speak separately, to the noble Baroness about the interpretation I should like to put upon them, for they need to be interpreted. Altogether in 1968 the Director had 161 cases referred to him; in 1969, 154. In 1968 the Director brought 128 prosecutions; in 1969, 107.
§ On Question, Amendment agreed to.
§ Clause 36 [Meaning of "corresponding law", and evidence of certain matters by certificate]:
§ 4.6 p.m.
LORD FOOT moved Amendment No. 2:
Page 25, line 23, leave out subsection (2).
The noble Lord said: My Lords, I should like to explain to the House first the context of this Amendment and then what it seeks to do. It has nothing to do with our views upon drugs and the misuse of drugs, and I do not intend to make any reply to the noble Baroness, Lady Summerskill, because I feel that if I did
so on this Amendment I should be almost as irrelevant as she was when speaking on the preceding one. This Amendment has simply to do with the state of the law. Your Lordships will see that Clause 20 of the Bill says:
A person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place.
In Clause 36 there is a definition of "corresponding law", and subsection (2) of that clause provides that where a prosecution is undertaken against somebody for assisting in the commission of an offence in another country, under Clause 20 the prosecution is enabled to prove what is the relevant law in that foreign country and what facts go together to make up an offence, not in the ordinary way with which we are all familiar—that is, by calling an expert in the foreign law to come and give evidence as to what the law is, which, so far as I know, is the method that we adopt in all other fields of prosecutions under a foreign law—but by getting from the foreign Government a certificate as to the meaning of the law.
§ At the Report stage of this Bill my noble friend Lord Airedale raised a matter even more objectionable than this. At that time it was provided that such a certificate from a foreign Government should be conclusive evidence and could not therefore be challenged by the accused person. As the result of representations made by my noble friend, the Minister was good enough to cut out that word "conclusive". That was a substantial improvement. But at the time of our debate on the Report stage, I suggested that this did not go far enough. I thought there was an inherent defect in the clause as it is drawn. The defect, as I see it, is that, as a matter of principle, the decision as to what any law means and what is the effect of any law is something which ought to be pronounced on by the Judiciary and not by the Executive.
§ I also suggested that in practice it would almost always be impossible for an accused person to call evidence to refute what was said in a certificate; therefore there was a considerable danger of miscarriages of justice if this procedure were ever adopted. The noble Lord, 1009 Lord Windlesham, was good enough to look into the matter after the Report stage and to write to me about it. I think it is permissible for me to quote from the letter, and I imagine that this may be the argument that the noble Lord will address to us in a moment; so perhaps I might say now what is the Government's view.
§ They say that after careful consideration they have come to the conclusion that the certificate procedure should be retained; that the Solicitor General had pointed out that the accused would not be at a disadvantage because the prosecution would still have to prove their case beyond reasonable doubt, and that once expert evidence had been given on behalf of the accused to refute the matters contained in it, the certificate could no longer be accepted as conclusive evidence. It would need to be supported by expert witnesses called by the prosecution. I do not think that is the correct interpretation. I think that manifestly the accused person must be at a very considerable disadvantage; because you would say that the certificate is prima facie evidence of what it states. Then you would say to the accused, "We are not going to prove this by calling a Witness, we are just going to produce a certificate; if you want to refute the certificate you have to find some qualified expert in the law" (a may be the law of Uruguay or Nicaragua) "to come and tell the court that the certificate is not in fact correct".
§ The difficulties which would face an accused who is invited to do that would be almost insuperable. Not only that, but also it is manifestly unfair to the accused that the onus of proof should shift to him from the prosecution immediately the prosecution produce the certificate. One of the basic principles of our criminal law is that the prosecution must prove every element in their case, and to prove it by calling witnesses. By this certificate procedure the prosecution are told: "No, you are released from that; the burden of proving that this certificate is incorrect is upon the accused person, and until he is able to produce evidence to challenge it, what is said in the certificate must be accepted."
§ The other matter, to which the noble Lord, Lord Windlesham, referred on the last occasion, and which he confirmed to me in his letter, is that although 1010 this clause has been in existence since 1923 it would appear that there is no record at the Home Office—at any rate not in recent years—to show that a prosecution has been brought under the provisions contained in Clause 20 of this Bill. If that is so, if the content of this clause is a dead letter, if no one has ever had resort to it, is that not a good reason for getting rid of something which is bad in principle? If cases concerning persons doing something in this country which is an offence in foreign law have never been prosecuted, and if there is no record of any such case, why need we retain this system of certificate procedure which seems to me so objectionable in principle?
§ 4.15 p.m.
§ LORD AIREDALE
My Lords, I feel that I ought to support my noble friend Lord Foot on this matter, nothwithstanding that we succeeded, on Report, in at any rate improving this subsection which my noble friend now seeks to delete from the Bill. In my submission, this subsection is fundamentally objectionable because it offends against what is called the "best evidence" rule; which is that the prosecution must always produce the best evidence to support its case. Of course, the best evidence is always a flesh and blood witness who can be put into the witness box and have his evidence tested by cross-examination; and very second-best evidence indeed is a certificate signed by some faceless person who does not appear in court to have what he has said in the certificate tested by cross-examination.
I should have thought that Parliament ought to be very much on its guard against introducing into Acts of Parliament subsections which say that these or those facts may be proved, not by flesh and blood witnesses but by certificates signed by people who do not appear before the court. In my submission, that is the fundamental weakness of, and objection to, this subsection. I do not believe that the Government have made out a satisfactory case for this subsection.
My Lords, what is it that makes a certificate so necessary in this kind of case? Is it the question of public expense? Is it the expense of calling witnesses who are experts in the relevant foreign law to give evidence in person? 1011 I do not know how many prosecutions are expected under this part of the Bill. I do not imagine that there will be very many; but, few though they may be, they will be very important. I suppose that they would come under the general heading of international drug trafficking. They will, I should have thought, be the sort of cases that the prosecution ought to be prepared to go to a great deal of trouble to prove up to the hilt, using the best evidence available.
Finally, I would say that it is not very complimentary to the courts to offend against the "best evidence" rule, because then the courts are entitled to say, "If you do not bring before us the best evidence which can be tested, you cannot expect us to produce the best administration of justice". So if there is to be much proliferation of this kind of thing—proving things on behalf of the prosecution by means of certificates—I believe that in the end British justice will suffer. I do not feel that a case has been made out justifying the certificate procedure in this instance, and I shall be very sorry if this subsection survives and becomes law.
§ 4.20 p.m.
§ LORD WINDLESHAM
My Lords, the noble Lord, Lord Airedale, says he does not think that a case has been made for allowing this subsection to survive. I would say to him and to the noble Lord, Lord Foot, that I think their objections are based on a misunderstanding of what is likely to happen. Now that we have had time to study Lord Foot's remarks with some care, and to consult the Law Officers of the Crown, we feel that he is attributing to the certificate far more significance than it will have in practice.
Apart from stating that the law in question is a "corresponding law", as defined in Clause 36(1), the sole purpose of the certificate will be to provide evidence to the court in this country dealing with an offender under Clause 20 of the Bill that particular facts constitute an offence under the terms of the law. The certificate will merely serve to demonstrate to the court that under the law of the country concerned there is an offence of a kind which is relevant to the proceedings before the court. The certificate, I must emphasise, would not be evidence 1012 that specific events had taken place in another country, or that an offence had been committed there.
It is true, as the noble Lord, Lord Foot, said, that if a person accused of an offence under Clause 20 wished to dispute an overseas Government's interpretation of its own law as given in the certificate, the onus would be on him to produce expert witnesses on his own behalf. But if the defendant raised an issue on a statement in the certificate as to the effect of the "corresponding law", the prosecution would then be required to bring evidence other than the certificate to prove, and to prove beyond reasonable doubt, that the person charged had assisted in or induced the commission of an overseas offence, and that that offence had in fact been committed. The certificate would not be evidence that particular events had taken place, only that, if they had taken place, they would be an offence under the law of the country in which it was alleged they had taken place.
Because the effect of the provision is difficult to bring to life and to visualise (and I have been attempting to do this since the noble Lord first expressed his doubts about this clause on Report) let me give your Lordships an hypothetical example. Suppose that a person in the United Kingdom helped to organise the smuggling of heroin into Spain. When that person was charged in the United Kingdom, under Clause 20, with assisting in the commission of an overseas offence, the prosecution would have to establish in court in the normal way, not only that the accused did the acts in the United Kingdom which assisted the commission of the offence, but also that heroin had in fact been smuggled into Spain. All that the certificate provided by the Spanish Government under Clause 36(2) would do would be to establish that the taking of heroin into Spain in the circumstances alleged by the prosecution constituted an offence under Spanish law. Of course, the procedure envisaged in this clause would be for use only in courts in the United Kingdom and not in courts overseas.
It is true, as the noble Lord said, that in recent years there has been no record of proceedings for an offence under the provisions of the existing law—that is, under Section 13(d) of the Dangerous 1013 Drugs Act 1965. This may be because until recently illicit international trafficking in drugs was not much of a problem so far as the United Kingdom is concerned. But the noble Lord, Lord Airedale, is right in assuming that international trafficking is growing, in step with the general international increase in the misuse of narcotic and other drugs. Your Lordships may have seen a report only this week that a load of cannabis from Pakistan has been detected by the police in this country, and is estimated to have a black market value of £500,000. The international bodies have called for greater collective efforts to deal with this traffic. We believe that it would be inexpedient for the United Kingdom to withdraw the possibility of help afforded by Clause 20, particularly as the Government do not accept the arguments which we have heard to-day that the provisions of Clauses 20 and 36 are in any way likely to prove prejudicial to a person dealt with by any court in this country.
I should point out, in conclusion, that the Government have already made a concession on this clause at the instance of the noble Lord, Lord Airedale, so I hope it will not be thought that we are being meaninglessly obstructive of the arguments that have been offered by the noble Lord, Lord Foot. As I explained in moving my Amendment to this clause, subsection (2), as amended, would no longer provide that a certificate is conclusive evidence as to the effect of a "corresponding law". The certificate now deals only with the existence of the law which is to be regarded as "corresponding" for the purpose of subsection (1) and its effect in particular circumstances, and, so far as its effect is concerned, it is open to challenge.
We have given careful thought to the noble Lord's Amendment to delete this subsection altogether but, for the reasons that I have explained, we believe that it ought to remain in the Bill. The noble Lord will be replying, as he is entitled to do, in a moment. I do not know whether it is his intention to press his Amendment, but if he does, I must advise your Lordships to vote against it.
§ BARONESS WOOTTON OF ABINGER
My Lords, it is still not clear to some of us—certainly to myself—what is the position if a person in this country gets 1014 a certificate which makes a bona fide error and wrongly states what the law is in his own country.
§ LORD WINDLESHAM
My Lords, I am in a difficult position because I am not entitled to speak again on this provision but may I, with leave of the House, say just one sentence? The certificate would be granted by the Government of the country, not by an individual.
§ BARONESS WOOTTON OF ABINGER
My Lords, I fully understand that it would be the certificate of an official of a Government, but officials have been known to make mistakes.
§ LORD FOOT
My Lords, I am afraid that I am not persuaded by what the noble Lord has said, but I am grateful to him for giving the point so much thought. It is difficult to imagine how a certificate would come into existence which was not a correct interpretation of the law. But I did indicate on Report stage how this might work in practice, when I quoted the case of the girl who was concerned in managing premises on which cannabis was smoked and who pleaded that she did not know that the offence was being committed. She was duly sentenced, but appealed. Her appeal went to the Court of Appeal which decided that as she was concerned in the management of the premises, and that as cannabis was actually consumed on them, it did not make any difference in English law whether she knew or did not know that the consumption was going on. When the appeal came to your Lordships' House it took a different view. The case had to come right up to the House of Lords in order that the matter could be put right.
I put this question to the noble Lord, Lord Windlesham, on the last occasion and I think it is an answer to what he has been saying. Suppose that in France there was a law similar to this one and suppose that a French prosecution applied to the British Government asking whether it was an offence under English law by a person concerned in the management of premises if cannabis were consumed on those premises though she did not know. If the answer to that had been given back in 1968, when this case came up, and a certificate had been sent to France saying what the law was then, the overwhelming likelihood was that the certificate would 1015 have misled the French prosecution and mis-stated the law of this country, because obviously the Government took the view, and the court took the view right up to the House of Lords, that this was an absolute offence. That is the sort of thing that can happen.
In that event, how could the accused person in France, with this certificate presented from the British Government saying, "This is the law in our country", possibly call evidence to show that it was not right?" The only way in which the accused person in France could seek to demonstrate that the certificate was inadequate would be by saying: "Send this back to England. Let the case be tried in the English court, and let the English court tell us what the law of the land is." The noble Lord may be aware that under the Foreign Law Ascertainment Act of, I think, 1859 or 1861 it was provided that if this country had signed a convention with another country
§ then the superior courts in this country, if they wanted to know what was the state of the foreign law in that other country, could send through and ask for an opinion from the superior court in that foreign country. That procedure has never come into existence, because we have never signed a convention; but at that time it was fully recognised that if you wanted to find out what the foreign law was, the proper thing to do was to go to the courts, and not to the Executive. I do not know what the will of the House is as to whether I should carry this matter to a Division, but I have a feeling that some of my misgivings are shared by others of your Lordships. It is not a Party point. Therefore I will carry the Amendment to a Division.
§ 4.33 p.m.
§ On Question, Whether the said Amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 38; Not-contents, 105.1017
|Airedale, L. [Teller.]
|Darcy (de Knayth), Bs.
|Foot, L. [Teller.]
|Beaumont of Whitley, L.
|Wootton of Abinger, Bs.
|Howard of Glossop, L.
|Aberdeen and Temair, M.
|Alexander of Tunis, E.
|Emmet of Amberley, Bs.
|Balfour of Inchrye, L.
|Lloyd of Hampstead, L.
|Belhaven and Stenton, L.
|Goschen, V. [Teller.]
|Lucas of Chilworth, L.
|McCorquodale of Newton, L.
|Greenwood of Rossendale, L.
|Brooke of Cumnor, L.
|Massereene and Ferrard, V.
|Brooke of Ystradfellte, Bs.
|Grimston of Westbury, L.
|Cork and Orrery, E.
|Mowbray and Stourton, L. [Teller.]
|Hailsham of Saint Marylebone, L. (L. Chancellor.)
|Napier and Ettrick, L.
|Nugent of Guildford, L.
|O'Neill of the Maine, L.
|Robertson of Oakridge, L.
|Tweedsmuir of Belhelvie, Bs.
|Ruthven of Freeland, Ly.
|St. Aldwyn, E.
|Stratheden and Campbell, I..
|St. Oswald, L.
On Question, Amendment agreed to.
§ 4.45 p.m.
§ LORD WINDLESHAM
My Lords, before we hear from the noble Lord, in opening this short, final discussion may I say how nice it is to see the noble Lord back in his place again? One of the main functions of your Lordships' House is to revise legislation, and it is one that on this Bill we can agree has been well fulfilled. This is the sixth day on which the Bill has been debated, and we have had the benefit of many well-informed and thoughtful speeches at the various stages. I am glad that it has been possible for the Government to accept some of the arguments that have been put to us by noble Lords who have a particular interest in this subject, and that the House was able to agree to the Amendments which I put down to meet those points on Report, including the Amendment to-day. There have been some matters, particularly the classification of cannabis, the level of penalties for drug offences and the powers of the police, on which there have been strong differences of view, but those have resulted from personal conviction rather than from Party motives, and I should like to thank noble Lords for the cogent and tolerant way in which they have been advanced.
This Bill reforms and strengthens the law against drugs misuse in this country. Its main features, as noble Lords who have followed it through will know, are to distinguish between offences of trafficking and offences of possession, with an adjustment of penalties in each case; to classify drugs according to their potential danger and the extent of their misuse; and to curtail the over-prescribing of 1018 controlled drugs. It is interesting to note that, other than on Second Reading, when we had the benefit of a speech from Lord Cohen of Birkenhead in his capacity as President of the General Medical Council, this last aspect of the Bill has been the subject of very little further discussion and no Amendment.
We are not, of course, alone in this country in trying to respond, by way of legislation and social action, to widespread drugs misuse. As this Bill has been going through Parliament, a Conference convened by the United Nations in Vienna has drawn up a new Convention for the international control of psychotropic substances such as LSD, the amphetamines and certain sedatives. This treaty is intended to complement the Single Convention on Narcotic Drugs of 1961, and, in the same way as that Convention, will allow for new substances to be brought under control in the future. I may add that the international bodies are not relying solely on legal measures for strengthening cooperation in this field. Last year the Economic and Social Council of the United Nations asked the Commission on Narcotic Drugs to hold a special session to examine the short and longterm needs for co-ordinated action by the various United Nations agencies. That meeting gave a new stimulus to the planning of multi-disciplinary programmes and special projects about which I have no doubt we shall hear more in years to come.
If we are to handle the problem of drugs misuse in this country effectively and humanely, the Government, the professional and other interests, parents, doctors and social workers, must work together in counter measures. I think we may claim that the Bill provides a framework for joint action of this kind and has served to draw attention to the need for further efforts. Let us hope, in 1019 working together to help those who are tempted to experiment with drugs, or to express their own personality with the aid of drugs, or to register a protest, perhaps, against the standards of a material world by way of drugs, that we can present some ideals also, some vision of the present as well as the future which we can offer with confidence as an alternative that can be enjoyed without artificial stimulus. If I express a hope for the next few years (and it will be my last words on this Bill since I have already taken up many columns of Hansard on this subject), it would be to see the conflicting strands of public opinion come closer together on this issue, an intensification of research, social as well as scientific, and a deeper understanding so that we may better protect the vulnerable and help those who are already caught up in a tragic social problem. My Lords, I beg to move.
§ Moved, That the Bill do now pass.—(Lord Windlesham.)
§ 4.51 p.m.
My Lords, I am sorry that I was not here for the earlier stages of the discussion on this Bill. For nine years I was a regular attender in your Lordships' House—until four years ago, that is. It is an extraordinary fact, but during that time I do not believe there was a single debate of any magnitude at all on the problem of drugs, with the exception of the two Bills mentioned by the noble Lord, Lord Windlesham. I have never taken part in a debate on drugs in your Lordships' House because I ceased to be a regular attender four years ago and, so far as I can see, the first mention of drugs as a major social problem was made by the noble Lord, Lord Sandford, on July 1, 1967, when he asked a Question about treatment centres. Yet in the four years since then this has become a major problem—an epidemic of world-wide proportions.
I have a friend, Dr. Padden, who is superintendent of a hospital in Happy Valley, which is not far from Goose Bay in Labrador. Not long ago he had admitted under his care the first two cases of LSD poisoning in Labrador. That it should have reached this stage in so short a time is indeed amazing. One 1020 of those admitted had picked up the drug in Toronto and the other in Montreal, and six months later they suffered typical psychiatric relapses which occur as a result of this particular drug. This is a man-made epidemic of tragic proportions. I fear that many people with good intentions have not helped to stop it. I hope that this Bill will do something towards that object.
§ 4.53 p.m.
§ BARONESS SEROTA
My Lords, may I express very warm appreciation, which I am sure the House will share, to the noble Lord, Lord Windlesham, for the care, patience and courtesy with which he has piloted this very important and, in parts, controversial Bill through the House. He reminded us of the many days we have discussed it, and it has finally been brought to birth after an exceptionally long period of gestation for it is exactly a year ago to-day when it first received its Second Reading in another place. It had two Second Readings there and almost completed two Committee stages. So no-one could begin to suggest that this Bill has been rushed through with undue haste.
I believe that its main contribution both now and in the future, apart from the fact that it replaces and consolidates our present fragmented drug legislation, will be those clauses, Clauses 13, 14 and 15, which the noble Lord, Lord Windlesham, just mentioned and which are concerned with control of prescribing by doctors—clauses which I am glad to say have been included with the agreement and consent of the medical profession. All our experience in recent years during the development of what the noble Lord, Lord Taylor, has just called "the world epidemic" has indicated that availability in itself has been a determining factor in the ever-changing pattern of drug misuse. In discussions on legislation of this kind one is inclined to forget the medical use of drugs, which has been one of the boons and lifesavers of our society. It is to my mind a great tragedy that the immense proliferation of mood-modifying drugs in general circulation has contributed to so much unhappiness and indeed death in certain cases.
With the passing of this Bill there is still an urgent need to continue and to increase publicity about the dangers of drug misuse, and to encourage doctors 1021 to prescribe less potent substances to many people who are likely to be only psychologically dependent. In this context, I would urge the Government to press ahead with the greatest possible speed with their discussions with the medical and pharmaceutical professions on the measures we need to control "loose" and over-prescribing of barbiturates which we discussed during our Second Reading debate. The number of prescriptions in circulation—some 12 million a year, I believe—is in itself a clear indication of the level of availability of barbiturates in our society and they are still a major cause of suicide cases.
A further point which I press on the Government at this stage is to ensure that, with the passing of this Bill, the concern many of us have expressed in connection with the continuation of police "stop and search powers" should be met by the early publication of a code of practice which police forces throughout the country would follow. Recent correspondence in The Times on this matter has served to confirm the fears expressed by several noble Lords during the discussion of this particular clause of the Bill; and I would therefore urge the Government to complete their discussions with chief constables and publish a code of practice as quickly as possible.
Finally, my Lords, it is true to say that at this moment the main focus for the development of policy and social action in the field of drug-misuse will now pass to the new statutory Advisory Council on Drug Dependence. All of us would wish the Chairman-to-be and its members every success in their vital work. Once again I express the hope that in the arduous responsibilities which will fall to them under this Bill the Government will give the Council every assistance and support.
§ On Question, Bill passed, and returned to the Commons.