§ 2.57 p.m.
§ The Minister of State, Scottish Office (Lord Glenarthur)
My Lords, I beg to move that this Bill be now read a second time.
It was last spring that my right honourable friend the Secretary of State for Scotland gave a public undertaking that measures similar to those introduced in England and Wales in the Drug Trafficking Offences Act 1986 would also be introduced for Scotland. I was conscious when I introduced that Bill to your Lordships that it received unanimous support; and I am grateful for that. My right honourable friend's announcement drew similar approval, both from those dealing with the consequences of drug abuse and from those with an interest in criminal justice. I am glad to be able to bring this Bill before your Lordships at this early stage in the Session. Although the Drug Trafficking Offences Act does have limited application to Scotland, this Bill fulfils our promise to act after thorough consideration of the sometimes complex provisions needed to deal with these issues in the context of Scots law.
The most substantial and important feature of the Bill is the part enabling the courts to confiscate the assets of convicted drug traffickers. The Bill also includes a new provision to help Customs officers detect drug smugglers. Ever since the enactment of the 1986 Act earlier this year we have seen an alarming new development in the techniques used by drug smugglers. I am referring to the techniques of concealing drugs within their bodies. This has forced us to consider how best to counteract the bizarre lengths to which smugglers will go. This Bill demonstrates that our determination to act on drugs is undiminished. We have also taken the chance to make a limited number of more minor but positive reforms of criminal procedure.
Your Lordships have rightly been much preoccupied in recent years with the drugs issue. We have had to consider a range of demands presented both by our need to pursue effectively those who trade in drugs and to educate, particularly the young, about the awful harm which they may do to themselves by drug abuse. As parents, many of us have worried about how our own children might respond to the availability or offer of drugs. We are all sadly too familiar with the appallingly destructive effects which drugs can have on families, where despite all their love and care, parents find their children being drawn into drug experimentation without understanding the enormous risks they take. What some young people might think of as a lighthearted frolic can lead to disaster, degradation and death.
As I said, we all found common cause and a most encouraging spirit of common concern when we debated the 1986 Act last Session. Those debates revealed a powerful desire on all sides of your Lordships' House to see that the powers available to 1078 the courts in sentencing drug dealers would demonstrate unequivocally that those evil men could never hope to gain from such criminal activities. I hope that the same spirit of mutual concern will underlie debates on this Scottish Bill.
In Scotland, it is generally thought that drugs are first an urban problem; but the extent to which drugs offences now occur throughout the country is a measure of the spread of the dealer networks which this Bill is designed to combat. In 1985, 3,047 persons were proceeded against for drugs offences in Scotland with cases occurring in every single district and islands authority except Orkney. For every person proceeded against in the four main cities, Edinburgh, Glasgow, Dundee, Aberdeen, there was another elsewhere in Scotland. But, if we look more closely at the figures of those against whom proceedings were taken for supplying drugs or for possession with intent to supply, we find a different picture. These offences, covered by Sections 4(3) and 5(3) of the Misuse of Drugs Act 1971, are very heavily concentrated in certain areas. The four cities, taken with Renfrew and Stirling, accounted for just under 70 per cent. of the 302 such cases in 1985. It is natural that these dealers will be found in greatest numbers nearest to the largest concentrations of people. It is in such areas that there are a greater number of opportunities to launder the proceeds of crime. They provide many more outlets for recirculation of the money into businesses, property, leisure projects and other investments.
This Bill will make such personal assets of whatever nature and wherever situated liable to confiscation by the courts on conviction. It is my hope and belief that the major dealers will be much less likely to pursue their trade once they realise that the consequence of being caught includes not only a lengthy prison sentence, but the forfeiture of everything they have gained from their trafficking.
Government action in the longer term has been concerned to reduce demand for drugs. This requires the co-operation of a whole range of agencies—police, Customs and Excise, teachers and those in the health services. As well as reducing the total demand for drugs, by making the consequences of using drugs clear to all through education, we must do all we can to choke off the supply.
Through their judgments on drugs cases in recent years the Scottish Judiciary has shown equal concern over drug dealing. They have viewed such charges as among the most serious with which they have to deal. Of the 234 persons convicted on supplying charges in 1985, 172 received a custodial sentence, 67 were sentenced to five years or more. Such severe sentences are a reflection of the widespread concern about drug trafficking. They mirror society's outrage at those who seek to exploit for personal gain the cruel dependency on drugs which these people carefully foster. This Bill will add considerably to the sentencing options available to the High Court of Justiciary when determining a convicted drug trafficker's fate.
While it forms the major part of the Bill, I think I have said enough in general terms about the problems of drug traffickers and I should now like to deal with the major elements of the Bill itself.
1079 The core of the Bill lies in Clauses 1 to 7 which deal with confiscation orders. The High Court, on the motion of the prosecutor, is to be empowered when sentencing a drug trafficker to order the confiscation of the proceeds of his crimes in addition to whatever other sentence it considers appropriate in the case. There is a statutory presumption that the convicted person's whole estate and everything that has passed through his hands in the past six years represents the proceeds of trafficking. The onus of proving that this is not so rests on the accused. Any sales or transfers of property to relatives or friends at less than full value will fall to be considered by the court. This power should make it even more clear to drug traffickers that they will find it very hard to protect their illgotten gains.
The Court of Session will have the power to appoint and direct the work of an administrator who will manage and realise the offender's property to fulfil the terms of the confiscation order. These are functions given to the receiver under the 1986 Act; but as there is no common law on receivers in Scotland it is necessary to spell out the administrator's powers on the Bill.
Clauses 8 to 12 anticipate the obvious reaction of a drug trafficker to being charged by allowing the prosecution to apply to the Court of Session for a restraint order. Such an order will freeze the trafficker's assets until the whole proceedings have been completed, and so prevent him from putting any of his assets beyond the reach of any confiscation order which may be made as part of the sentence. The restraint order is a very necessary pre-emptive device.
Two specific new criminal offences are created by the Bill. Both are designed to ensure that those who associate themselves with this heinous trade even in an ancilliary capacity will find themselves open to severe punishment. Clause 38 makes it an offence to prejudice any drug trafficking investigation; for example, by tipping someone off that he is under investigation. Such complicity will be punishable by up to five years' imprisonment. An even more unforgivable crime is committed by those who use their professional skills to aid a drugs dealer to hold on to the proceeds of his crimes. The prospect of a prison sentence of up to 14 years provided for by Clause 39 should make all such persons stop and think before they offer any such help.
Where a confiscation order is made but not met in full by an offender, he will be liable to an additional term of imprisonment in default. This term will be served consecutively to any other sentence imposed and could be as long as 10 years for default on a sum of over £1 million. The drug dealer therefore faces the prospect of a very long period behind bars and the loss of everything he had—a harsh but well-deserved fate.
Indeed, when taken together the measures which apply against drugs dealers represent probably the most severe range of sentencing options for statutory offences in Scots law. This is right and proper. The threat to the wellbeing of Scottish society posed by the activities of drugs dealers is deadly serious. We intend to meet that threat with a full and rigorous response.
1080 Part II of the Bill deals with a number of miscellaneous matters. First, it provides Customs officers with powers to detain those suspected of certain Customs offences. Two separate powers are involved—a general six hours detention power and a specific power designed to enable Customs officers to meet the particular problems associated with the investigation of those suspected of smuggling drugs concealed in their bodies. The general power follows a recommendation of the Keith Committee in its report on the enforcement powers of the revenue departments. An inadvertent consequence of an amendment to the terminology of existing Customs legislation, made in the Police and Criminal Evidence Act 1984, left Customs officers in Scotland without the power of detention. Clauses 44 and 45 will remedy this. More importantly, Customs officers have a key role to play in preventing and detecting the importation of illegal drugs. In a country such as Scotland, with a long coastline and a well developed and growing network of international air routes, there is a great need for the specialist skills and intelligence network of the Customs and Excise.
The detention power proposed in Clause 46 of the Bill deals with those who seek to smuggle drugs into the country by swallowing small quantities of controlled drugs in containers such as condoms or by concealment in their body orifices. The Bill provides that those suspected of smuggling drugs in this way can be detained for 24 hours on the authority of a senior Customs officer and for up to a further seven days on the authority of a sheriff. This should allow time in most cases for evidence of internally smuggled drugs to become available which would enable a suspect to be charged.
Of the remaining items in Part II of the Bill, there are two which I should perhaps explain. Clause 47 simplifies the procedure for arranging sittings of the High Court and abolishes the concept of High Court "circuits." I say abolishes the "concept" because there is no intention to alter the practice of the court of hearing cases outwith Edinburgh, only to remove the limitations on the court's jurisdiction when it is sitting outwith Edinburgh. There have been occasions when a particular sitting on circuit has not been fully used and this at a time when High Court sittings in other towns, geographically near at hand, are severely congested.
The provision in the Bill allows more flexibility in indicting cases to sittings in the first place, and, where unforeseen difficulties arise, makes it possible for the prosecution to apply for cases to be reallocated to other sittings of the High Court, subject, of course, to the judge giving both parties an opportunity to be heard. The measure will not significantly affect the workload of the courts. It will, however, introduce a greater flexibility and efficiency into the conduct of High Court business and a speedier disposal for those cases which benefit.
Clause 49 is designed to afford a remedy in cases where the defence agent cites the procurator fiscal as a witness in a trial, thereby preventing his attendance in court until after his evidence is given. This has resulted in fiscals having to spend an entire trial outside the court but on hand to give evidence without ever being called. The clause provides discretion for the court to allow the fiscal, or other witnesses, to be present.
1081 The other items in Part II of the Bill will, I trust, also be welcomed as minor but constructive improvements in criminal law and procedure. For a Bill of this length—55 clauses—the two schedules are commendably short and. I think, and hope, uncontroversial. I should like to draw your Lordships' attention, however, to one item in Schedule 1 which I think will be particularly welcomed on all sides. That is the proposal to reduce to six months from one year the minimum length of a probation order. This will allow the courts greater flexibility in the use of probation orders and provide a further disposal appropriate to less serious offences.
I should touch, I think, on something not yet in the Bill, which I propose to bring forward at Committee stage by way of government amendment. We have decided, in the light of our consideration of the relevance to Scotland of the Roskill Report on Fraud Trials, that my noble and learned friend the Lord Advocate should be given new general investigative powers on the lines of those proposed in the Home Office Criminal Justice Bill for the Serious Fraud Office in its investigations into fraud cases. We are clearly anxious to pre-empt the possibility that criminals operating in England and Wales might simply transfer the locus of their activities to Scotland to avoid the effects of new Home Office legislation. I should add that there may be other amendments, depending on the outcome of consultation. I am afraid that I am not yet in a position to give details.
The Government believe that effective law and order depends for its success on public co-operation. That is in part secured by ensuring that the public's expectations of criminal justice are fulfilled. In this process it is essential to ensure that Parliament can preserve that vital balance which weighs the detection and conviction of the guilty against interference with the rights of the innocent individual and the public at large. It is sometimes necessary to tilt the balance against the suspect when the crimes are of a particularly destructive nature. Parliament, in such circumstances, acts consciously in favour of the victim and innocent people generally. Few would deny that Parliament has a fundamental duty to protect the community and particularly our young people from one of the greatest evils of our time, and those who promote it.
This Bill should be seen as part of a much larger picture, one which requires the integration of a whole range of legislative and practical initiatives. This single element in that picture shows our resolve to pursue ruthlessly those responsible for creating and feeding demand for a wholly obnoxious product. Those who profit from the misery of broken families and the ruined health of young people must understand that they face loss of liberty and the loss of everything which their wicked trade has enabled them to obtain and enjoy. I urge your Lordships to support it, and beg to move.
Moved, That the Bill be now read a second time.—Lord Glenarthur.)
§ 3.16 p.m.
§ Lord Morton of Shuna
My Lords, in general, the provisions of this Bill are wholly acceptable to the 1082 Opposition. We are, of course, wholly in favour of any measures that will cut down drug trafficking and the use of drugs in the country. In so far as the Bill gives additional powers to investigate and to confiscate the profits of drug trafficking, we are wholly in favour of it. The only word of warning I would give is a fairly minor one. If we increase the penalty of imprisonment too much, it may reach the stage where it is difficult to obtain a conviction when juries say, "We know that this person is going away for so long", the burden of proof somehow seems to go up. We have not yet reached that stage with drugs, but I think it appropriate to give the warning.
It is interesting to note that the Government intend to bring in powers in relation to fraud trials, and subject, of course, to seeing them, we welcome that. However, it raises a difficulty, because the Bill will run parallel with the Criminal Justice Bill in another place. The fraud provisions of the Criminal Justice Bill are in Committee in another place. How will we ensure that they link up with the fraud provisions coming into this Bill and that they do not clash at some point?
The Government's attitude in this regard is shown by what has happened. To my recollection, we started dealing with the problem of confiscation or penalising of drug traffickers' profits in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. That was obviously a holding measure. In debate, I suggested that there was no reason why confiscation should be restricted to drug trafficking. It could relate to highly profitable crimes as well, because people who engage in drug trafficking frequently have other interests, such as robbery, fraud and all sorts of serious criminal activities. Instead of that, the Government produced the Drug Trafficking Offences Bill which became an Act in July of this year. That Act applies to England and Wales and contains provisions to enable property to be followed to Scotland and confiscated.
This Bill broadly provides for Scotland what the Drug Trafficking Offences Act provided for England and Wales. However, it is far from clear in this Bill that there is power to follow and catch up with the Scottish drug trafficker, if I may use that expression, and his property in England. It is not clear that there is complete reciprocity between the Drug Trafficking Offences Act and this Bill, and there should be. The Criminal Justice Bill, which is under consideration in another place, takes the confiscation of criminals' profits a stage further. It deals with confiscation of profits of highly profitable crimes. But that will not apply to Scotland. Why not? Is it not appropriate that the penalties we are imposing on offences should run together and not leapfrog each other in this way?
The Criminal Justice Bill—as opposed to the Bill we are discussing—has 128 clauses of which 44 apply to Scotland. It is far from clear that the easiest and most convenient way to proceed is to have a Criminal Justice (Scotland) Bill and a Criminal Justice Bill going through the Houses of Parliament at the same time if the Criminal Justice Bill is not purely an English Bill but also a Scottish Bill. I am far from clear why the Government consider it wrong to make provision for the power at this stage to take the assets of bank robbers in the same way that we take the assets of drug traffickers. If it is right to do that in England, why is it wrong in Scotland? Should we not take the 1083 opportunity of providing Scotland with the same powers to take profits either from drug trafficking or other crimes, to put all these powers in one Bill and to obtain the same result? Otherwise, I suspect that this House will have a Criminal Justice (Scotland) (No. 2) Bill in six months' time making provisions to take the profits of profitable crime following the measures in the Criminal Justice (England) Bill—if I may so refer to it. It is surely not beyond the power of the draftsman to add to the references to drugs the words "highly profitable crime".
We are told, rightly, that the Criminal Justice (Scotland) Bill follows the Drug Trafficking Offences Act. Section 35—the section relating to investigations—gives power to investigate with a warrant from the sheriff, which applies only to Scotland. Section 27 of the Drug Trafficking Offences Act begins,A constable or, in Scotland, the procurator fiscal may, for the purpose of investigation into drug trafficking, apply to a Circuit judge or, in Scotland, the sheriff".The Scottish investigators—the Customs and Excise, the police or the procurator fiscal—apparently are to be given no power to go to an English judge to ask for a warrant. Is it really suggested that Scottish drug traffickers do not go over the Border and that there is no way of dealing with this?
The noble Lord the Minister referred to Clause 38 of the Bill in relation to prejudicing offences. It states,Where, in relation to an investigation … an order has been made or has been applied for … a person who, knowing or suspecting that the investigation is taking place, does anything which is likely to prejudice the investigation".What is meant by "does anything"? Section 31 of the Drug Trafficking Offences Act does not use the words "does anything" but refers to "makes any disclosure". Presumably—but perhaps this is not an irrebuttable presumption—there is some purpose in the change. It is one thing to make a disclosure which prejudices—to "tip somebody off" in the Minister's words. One would want to penalise that kind of activity. However, the words "does anything" are so vague that almost anything might be prejudicing an investigation.
I can recall a case where the Crown relied very strongly on a very reluctant witness who married the suspect. Will she be prosecuted under this Bill for marriage, because certainly marriage "does something". It certainly prejudiced the investigation because she became an incompetent witness for the Crown. Under Clause 38 one would appear to be able to prosecute for that.
If one compares this Bill with the Criminal Justice Bill, quite apart from the question of fraud trials and the penalties on the profits of non-drug offences, there are other aspects which seem peculiar should changes made in England not be applied to Scotland. For example, Clause 71 of the Criminal Justice Bill changes the aspects of compensation orders and, quite rightly in my view, enables a court in a suitable case to make compensation orders for payment of funeral expenses in respect of a death arising from the offences. That was previously prohibited. It is not being provided for Scotland. Why not? Why should there not be similar powers in relation to compensation orders in certain circumstances connected with road traffic offences?
1084 It appears to me that if the Government took a closer look at their two Bills, they could fit them together and produce a better Bill for Scotland which we should welcome.
On the minor changes in the circuits and sittings of the High Court, I would wholly agree that the concept of circuits is totally out of date and should be dropped. But a caveat must be added. It would be possible under Clause 47 to have any crime tried at any place. One would require an assurance, or possibly an amendment, to suggest that it must be convenient as regards the place of the crime or convenient to the accused. One can see a situation where, if the Crown were not getting convictions for one reason or another. say, in Glasgow, they might want to take all their High Court trials in Wick. That might discourage some people from giving evidence. I would suggest that it is a highly important part of the jury trial system that the jury should be drawn from people who are resident in the area where the main crime has been committed. It is important that if there are to be switches of trials at the last minute this is done in a way that does not cause prejudice to the accused by forcing a change of his counsel or solicitor. If it is right that a prosecutor can apply to transfer a case to another place, as is to be provided under these measures—with which I agree—I suggest that there should also be a right for an accused to apply to the court for the case to be transferred. There are rare cases where he or she may feel for some reason that it is grossly inappropriate that the case should be tried where the Crown is suggesting.
The need for the provision is the lack of courtrooms in Glasgow. Glasgow High Court has existed for well over 100 years. It has two courts. It has for the past 10 years needed five or six courts. I understand that there are now proposals to divide the court horizontally to produce four courts. There is space behind the building that will not exist for ever, but at present it seems to be available space on which to build where additional courts could be built without doing anything to damage the building, which has a good facade. If the Government do not act now we may be in a position where, in five or ten years' time, we have made changes in the High Court building in Glasgow and there is no space to expand further.
I urge the Government—I hope that when the Lord Advocate comes to speak he can do this—to assure us that they will make adequate provision of courts, because to have only four courts, which I understand is the proposal, simply will not be enough.
On the whole, therefore, with the criticism of lack of provision and of the way that England and Scotland appear not to march together but have to march out of step, I welcome the Bill as far as it goes. I regret only that it does not go further.
§ 3.32 p.m.
§ Lord Wilson of Langside
My Lords, although I share the concern of the noble Lord, Lord Morton of Shuna, for the health of the law of Scotland, I do not propose today to follow him into the more detailed criticisms of some aspects of the Bill and some of the problems of legislating for Scotland. I express the hope that in particular the Lord Advocate and the many lawyers in and around the Scottish Office will give due weight to these criticisms.
1085 To some extent I think it has to be said that some of the problems that arise are inherent in the treaty into which we entered in 1707, but that is another story. We on these Benches welcome the Bill, and we are indebted to the Minister for the careful and clear presentation of its provisions and terms. I will not add to the torrent of rhetoric on the subject of the problem of drug trafficking, into which many in the Palace of Westminster are occasionally tempted to enter whenever the subject arises. It is generally accepted that it is one of our major national problems, along with much of the rest of the world.
I think that it is also generally accepted that one of the principal ways in which the machinery of law enforcement can make an impact on this problem is by getting at the pushers. This is part of the conventional wisdom. One of the most effective ways—again I think that it is part of the conventional wisdom—in which one can get at the pushers is by getting at their pockets and making sure, so far as it is possible to do so, that they do not benefit from their ill-gotten gains in the trade. While there are many problems to be dealt with in this context on the demand side, in terms of supply I think it is generally accepted that effective provisions for the confiscation of their illgotten gains are a good thing.
One of the principal questions that has arisen as this dreadful problem has grown over quite a number of years is whether the response of the government machine under successive Governments has measured up to the nature of the growth of the problem. The point is that this is an international problem. In this context, I should like to ask the Minister this question. Is the co-operation between the law enforcement agencies of different countries adequate to the problem, and, if not, do the Government propose to improve matters in that direction?
This question was in part inspired by two reports—I am sure that the Minister has been referred to this—in the Observer of last Sunday, which throws some light on the inadequacy of the measures that are taken to deal with the problem internationally. The headline on the front page of that edition of the newspaper states:Unmasked: Drug baron who got away".The front page article opens with this observation:The Observer can today identify one of Britain's biggest drugs traffickers".The article then names him and continues:who is at large and living in Surrey".The heading on the centre page is:Heroin trail to the squash club".The first paragraph states:To the lawyers and accountants who frequent the West Surrey Squash Club in Walton-on-Thames, in the stockbroker belt of Surrey. John Humphries is just another player, albeit one of the club stars".It goes on to say:he … has been one of Britain's biggest traffickers in the drug".I dislike as much as anyone else the business of trial by newspaper, but this is a very detailed and disturbing report. In the course of the report—this is what prompts my question to the Minister—it is stated:But now the DEA"—1086 that is, the American Drugs Enforcement Agencybelieving that he has been alerted to its operation, is discussing with British Customs and Excise the possibility of his extradition".As I say, I dislike the business of trial by newspaper, but this is a quite remarkable report. If it is substantially true I should like to know—and we are entitled to know—why it has taken so long for the American department and our own Customs and Excise to proceed further in the business of extradition when newspapers can uncover this kind of situation.
The next question I ask is: if this kind of thing can happen without effective action taken, will the provisions of the Bill be sufficiently effective to claw back the French chateau, Krugerrands and gold bars in the Swiss vaults, being the articles with which the court was concerned in Operation Julie in 1978?
I do not say this in any party sense at all, but because of the failure of successive governments to face up to the real and international nature of this drug trafficking problem, I am concerned with whether the proposals in this Bill, while we welcome them, will be adequate to deal with the situation. I wonder whether the Minister can reassure us as to the vigour with which the Government will monitor and pursue, and ensure the pursuance of, the new powers which are being given to the law enforcement agencies. That is all that I want to say on the matter. Beyond that we welcome the other provisions in the Bill.
There is one question I should like to ask the noble and learned Lord the Lord Advocate when he replies. The Customs and Excise in Scotland are being given additional powers. How does their strength today compare with what it has been in the past? Has the strength of the Customs and Excise been increased to cope with the growth of this problem? It would be very interesting to know the answer to that because it would help to convince us that the Government are serious about making a real impact on the problem of drug trafficking.
§ 3.44 p.m.
§ Lord Ross of Marnock
My Lords, the Government are to be congratulated on bringing this Bill forward. There will be no question of battling with the noble and learned Lord the Lord Advocate in respect of this Bill. It will be a matter for joint concern to ensure the Bill is right in relation to the importance of the subject. Let us not underestimate the importance of the subject.
We are spending so much money, and we congratulate the Government on what they have been doing in relation to education—that is, bringing it home to people that drugs kill. We are dealing with people who have actually been caught, tried and convicted. We are dealing with the merchants of misery. We know what they are, and we know how the public look on them. If anything, we in this House and those in the other House are behind public opinion in this respect: the public are way ahead of us. I should not be at all surprised it' any ordinary member of the public on looking at the Bill and reading the first 46 clauses was amazed that it takes so much complex legislation to do what the public would say in one sentence. In the old Scottish way of legislation it would probably comprise about one paragraph: take the money from them; let them not profit from the misery and ill-health that 1087 they create. It is amazing that in this Bill we have 46 clauses designed purely to do that and to do it right. I hope that we have it right. I was amazed when my noble friend Lord Morton of Shuna told me that they are now applying the same 46 clauses and more to taking back from people who profited from serious crime—bank robbers, those who commit fraud, train robbers and the like—the profits from their enterprises. We have not done it in Scotland, and it is practically the same kind of thing.
The draftsmen in Scotland have been busy working with those in England to ensure that what they are doing is successful if those people move the proceeds. or the fruit of their labours, from England into Scotland. I think there are 128 clauses in the English Bill and 44 of them apply to Scotland. Could they not at the same time have drafted the Scottish Bill to do the same thing, and then we would have had a real Criminal Justice (Scotland) Bill? The Criminal Justice part of it amounts to very little; it is really the Misuse of Drugs (Scotland) Bill. With the saving of the time of the civil servants, the draftsmen and of this House and the other House, we could have been marching with England in relation to that aspect of it as well.
Setting aside the failures of the Government properly to organise the legislation and to do the right thing at the right time and coming down to the actual Bill, I do not think that we have much cause for complaint.
I am a simple man and am not like my noble and learned friend a lawyer. I read Clause 6 and see words like this:(2) For the purposes of subsection (1) above, the circumstances in which a person is to be treated as making a gift shall include those where he transfers an interest in property to another person, directly or indirectly, for a consideration significantly less (in this subsection referred to as 'consideration A') than the value of that interest at the time of transfer (such value being in this subsection referred to as 'consideration B'); and section 5 of this Act shall in such a case apply as if the value of the gift when received were the amount by which consideration A is exceeded by consideration B and as if the value referred to in sub-paragraph (ii) of subsection (5)(b) of that section were determined in accordance with the formula—C(B-A)/B
There we have a little bit of algebra. C has never been mentioned. I presume the horizontal line means that (B-A) is divided by B. Then we see that A is consideration A—we never thought of that! B is consideration B. That is real insight! C is described as "what the value so referred to would be had the gift been an outright gift". They should have told us that at the start and we should all have understood what the formula was.
Surely to goodness we could have left that to the court to decide instead of including an incomprehensible formula at this point in the Bill?
It is those kinds of matters that make me wonder whether anyone other than a lawyer in the Scottish Office reads through these provisions before they come here. I am sure that the noble Lord, Lord Glenarthur, is the inventor of the provision, although he never mentioned it. I thought that this prize piece of legislation came straight from him as the new wind rushing through the Scottish Office. However, if it did not come from him—and I think that he rather agrees with what I have said about it—then let us square the 1088 matter and get rid of this kind of nonsense in Scottish legislation. The Scottish draftsman has been listening too much to the English.
The noble Lord, Lord Glenarthur, did not mention confiscation. I know that it will be difficult; but we are dealing with people who have been convicted of drug trafficking. I worry more than slightly about the question of implicative gifts—gifts out of the proceeds to friends or relatives. In other words, they can protect themselves. We shall need to be very careful about the matter now that they know that the provisions will apply in Scotland as well as in England, because they will take the opportunity to get rid of their proceeds.
I point out to the noble and learned Lord, Lord Wilson. that I do not think we are dealing with small pushers, although they are included in the legislation. Some of them may be wealthy or have amassed wealth out of these activities. However, we are dealing with people who do the illegal importing and exporting. We are dealing not only with the people who produce the stuff, but also with the people who supply the stuff. We are dealing with people who may be part of a conspiracy—a whole ring. That is the important aspect. Therefore, we must be careful that we take all the powers necessary to get at the money in Great Britain and also, if possible, outside Great Britain.
I should like to ask about cash which is hidden in external places. Do we have any proper coverage in respect of that matter? We must remember that we shall not spend all that much money on it. We do not expect great success. We shall spend £500,000 and we expect to get back £300,000.
I heard mention today of supplying over 1,000 more inspectors for the Inland Revenue to deal with VAT and people engaged in the black economy. My noble friend Lord Graham of Edmonton will remember the Question that he raised. In my view, the black criminal activity merits a little more than £500,000. I hope that success in getting at the proceeds which those involved have been using over the past six years or more will amount to more than £300,000. We are speaking of a handful of people. It will be a very considerable job for the Crown office, for the police and certainly for the Customs. In my view we should deal with the matter properly.
When a gift is made to a person for charitable purposes, it must not he pursued. It cannot be brought back. However, I do not like Clause 6(4) which says:In subsection (3) above, 'charitable purpose' means any charitable, benevolent or philanthropic purpose whether or not it is charitable within the meaning of any rule of law".That could provide scope for escape from the intentions of Parliament. It is difficult in Scotland because we do not have the Charity Commission. We do not have the same definitions and it has caused trouble in the past. Is that the reason for the wording that has been used? We shall need to ask the Government whether they are sure that the provision cannot be a loophole for very clever people who are dealing, and spending, in millions to protect themselves.
Another matter which was not mentioned by the noble Lord, Lord Glenarthur, concerns restraint orders. We must have restraint orders. Otherwise, there would be an invitation for people to get rid of 1089 their money and hide it. A restraint order can be made,at any point from 28 days before the Procurator Fiscal applies for a warrant in respect of a suspected drug trafficker until the conclusion of the proceedings".This refers to a person who has not been charged. All the other provisions in the Bill deal with people who have been convicted. However, as regards this provision, we are dealing with someone who is only suspected. Before he is arrested and before he is tried, a restraint order can be made, freezing his business. One can put a stop to his business or to his dealings in cash through the banks and everything else. It is a very dangerous provision.
We shall be taking up in Committee the question of what happens if the person is eventually not proved to be a drug trafficker. A great deal of damage can be done to a person's business if his assets are frozen for the whole length of a trial and probably for some time afterwards. I gather however that the suggestion is that there should be compensation only if there is negligence on the part of an officer of the law. Presumably the noble and learned Lord the Lord Advocate will be responsible for the trial and so on. It will probably be worth looking at that point.
There is one other matter about which I am more than slightly worried. It concerns Clauses 38 and 39 which deal with offences. Clause 38 is entitled "Offence of prejudicing investigation". Subsection (3) says:A person guilty of an offence …There is fair rein in those provisions. The matter can be left at that: five years for conviction on indictment and six months for summary conviction. However, we must remember that the procurator fiscal has decided whether the matter will go for summary trial or to the High Court.
- (a) on conviction on indictment, to imprisonment for a term not exceeding five years …
- (b) on summary conviction, to imprisonment for a term not exceeding six months".
Clause 39 is entitled "Offence of assisting another to retain the proceeds of drug trafficking." Subsection (5) says:A person guilty of an offence … shall be liable—That does not ring true, does it? I know that there are limitations upon summary sentences. However, I do not think that that provision is right. If someone goes for summary conviction, he will be liable to imprisonment for a term not exceeding six months but if he is convicted on indictment he is liable to imprisonment for a term not exceeding 14 years. Indeed, I am reinforced in that view especially when, under the previous clause on conviction on indictment, he is liable to a term not exceeding five years and on summary conviction to a term of imprisonment not exceeding six months. We shall have to look at that matter.
- (a) on conviction on indictment, to imprisonment for a term not exceeding fourteen years …
- (b) on summary conviction, to imprisonment for a term not exceeding six months".
I have also looked at Clause 49 of the Bill which deals with procedure. I was surprised that nothing was said about it. It says,The court may, on an application by any party to the proceedings, permit a witness to be in court during the proceedings".1090 That is not usual in Scotland. It is a very considerable departure from Scottish procedure. Indeed, it was generally accepted that a witness could be completely discounted and not heard if, by any chance, he had been present at trials and heard other witnesses and other proceedings in the court. What is the reason for this? If there is a decision by the court that the witness could be appearing in court before he or she has given evidence, what is the reason for this departure from this long-accepted rule of Scottish law?
On the whole I do not think that we disagree with the Bill. Certainly we do not disagree with its purpose. But let us not overrate the Bill. The real matter that will stop these people is the surety that they will be caught. We only do this after they are caught. We only do this after they are convicted. We have to stop them before they get that far. The surety that they will be caught means building up the police force, building up our Customs forces, and I entirely agree with the powers that were given there, though I think there is a slight mistake in the Bill at one point.
I always like to leave the Scottish Office to look for their mistakes. I always like to leave them one. It makes them read the Bill again if I say there is a case of omission in respect of the powers of the Customs officers. I am not going to say what it is. Read it. The one way to guarantee that the civil servants will read the Bill is for me or somebody else to say that there is a mistake in it. I want them to read the Bill and I want the Ministers to read the Bill, particularly the clause I quoted.
We are dealing severely with the consequences of being caught. But the Minister spoke of the bizarre lengths to which people will go to smuggle drugs. What is that related to? It is because there is so much money in the misery they create. They are not concerned about the misery. They are concerned about the money. This is the market theory: there is money to be made; let us supply what is wanted. This is one of the unacceptable faces of the market economy. From that point of view we should also look at the whole question of strengthening the police force as well, and those parts of the police force which have the awful job of trying to catch these people, so that with this Bill we can then deal with them.
§ 4.4 p.m.
§ The Lord Advocate (Lord Cameron of Lochbroom)
My Lords, I am extremely grateful to the three noble Lords who have spoken on this matter, and for the obvious warmth of the welcome they have given to the Bill in general. From the matters that they have raised, I look forward to an interesting Committee stage on the Bill.
Perhaps I may deal first with the points made by the noble Lord, Lord Morton of Shuna. Obviously I take note of what he has said about the effect that too great penalties may have on the discovery of crime, but I was glad to note that he accepted that in this Bill we have not gone beyond the limit. In parenthesis, while dealing with the question of offences, I assure noble Lords that the offences of what I might term "laundering" and "prejudice", the ones to which the noble Lord, Lord Ross of Marnock, has just referred, are in fact a mirror of the provisions in the English Bill 1091 in the sense that the penalties provided for there will be likewise found in this Bill.
The next point to which the noble Lord, Lord Morton, referred was the question of the amendment that my noble friend indicated he would be bringing forward in due course with regard to the Roskill Committee powers which are to be found in the Home Office Bill. Certainly there should be no problem of a clash with the Home Office on their provisions for implementation of those provisions of the Roskill report. Clause 2 of the English Bill applies to Scotland to enable the serious fraud office to pursue English investigations in Scotland. Our amendments to this Bill will extend, as necessary, to England and Wales to enable the Lord Advocate to pursue Scottish investigations in England where that is necessary.
The next point that the noble Lord opposite raised was in regard to confiscation of profits; that is, profits generally. I have to say that it is not the intention of the Government to include in the Bill an extension of the confiscation procedures as is to be found in the current English Bill. Your Lordships may recollect that some little time ago the matter of the general question of the confiscation of proceeds of crime was remitted to the Scottish Law Commission by my right honourable friend who is now the Secretary of State for Defence.
That remit came to a halt when the provision under the Law Reform (Miscellaneous Provisions) Bill were brought forward. My right honourable friend the Secretary of State in fact intends to refer the whole question of confiscation of proceeds of crime again to the Scottish Law Commission to enable full consideration to be given to the issues in the light, first of all, of some experience of the operation of the Drug Trafficking Offences Act 1986, and indeed of the operation of this Bill, before determining whether, and in what form, legislation may be required. I think your Lordships understand that we have separate systems. The way in which we have to go about matters is necessarily different, and that is clearly demonstrated by the terms of the Bill before the House today.
Another point that the noble Lord put to me was in regard to what he said were 44 clauses of the Home Office Bill which apply to Scotland. It is always with a certain degree of hesitation that I correct the noble Lord. It is true that there are clauses in that Bill which apply throughout the United Kingdom. That means that they apply to Scotland as well as to other parts of England and Wales.
Those clauses deal with two principal matters: first of all, extradition. The provisions on extradition in the Bill presently in another place are to apply in both Scottish and English jurisdictions. But it would be extremely wasteful to have the same provisions in both Bills. Furthermore, there is a more practical point. Foreign governments are used to what is called the one-door approach in dealing exclusively with the Foreign and Commonwealth Office on extradition questions. The new provisions in the Bill will merely continue this long-accepted system of handling extradition questions.
Another part of the Bill will deal with the Criminal Injuries Compensation Scheme. That again of course operates on a Great Britain basis, and has done since 1092 its inception. As I think the noble Lord opposite well knows, it draws its membership from both sides of the Border, and the scheme takes full account of the law of Scotland, for instance, in relation to civil law damages actions and the level of awards made in Scotland.
The essential elements of the present arrangement, which is non-statutory, are retained in the new statutory scheme. Clearly any separate Scottish scheme would have to duplicate the provisions of the Bill (which I suggest would be pointless) or, if it did not, would lead to differences in scope, operation or administration which could result in unfairness to claimants. Accordingly we concluded that there was no justification for the inclusion of separate provisions in a separate Scottish Bill.
The only other part of the Bill which is at present in another place that is common to England, Wales and Scotland is that which deals with the increase of maximum penalties for certain firearms offences. Again the view has been taken that since the statutes which create the offences extend to both sides of the border, the changes which increase the maximum penalties would more appropriately be found in that statute rather than having the matter rehearsed again in the present Bill.
The next point that the noble Lord put to me related to investigations. That was in regard to Section 27 of the Drug Offences Act 1986. I think perhaps the answer to that might be found in Schedule 2 to the present Bill, where noble Lords will find that there are certain words to be repealed because the provisions have been taken into this Bill. Obviously the noble Lord may wish to consider this more appropriately at Committee stage.
I note what the noble Lord said about compensation orders and the terms of Clause 38. The noble Lord, Lord Ross of Marnock, made remarks about the phraseology of the legislation. In particular he pointed to Clause 6. Obviously these are matters we shall return to in Committee. I certainly look forward to the debate at that time, as no doubt the noble Lord opposite does as well.
The noble Lord, Lord Morton, also raised a question about the enforcement of Scottish orders in England and Wales. The position is that this is to be covered in the Bill which is presently in another place and will be added by way of government amendments. The reason the provision is not in the present print of the Bill before another place is that that Bill was introduced before this Bill and therefore could not provide for enforcement of provisions which had not yet been laid before Parliament. I assure noble Lords that there is no question of any gaps in the cross-Border enforcement provisions in either direction.
The last point which the noble Lord. Lord Morton, made was in relation to circuits. I want to make it clear that we are not departing, as my noble friend said at the start, from the very important principle that has always been behind prosecution and trial in Scotland—that it is to take place before a local jury. The noble Lord will know that there are provisions which allow an accused in certain circumstances to secure removal of a trial from one place—I think it is to Edinburgh, which has been regarded as the home of the High Court—where there is prejudice. I shall be 1093 interested in any matter which may be raised on this at Committee stage.
The noble and learned Lord, Lord Wilson of Langside, made some general points about the importance of international co-operation in dealing with drug trafficking. I say from personal knowledge that within the Commonwealth there is an acceptance of the necessary mutuality of co-operation to bring this trade to an end, and that, as the noble and learned Lord will know, is extended into the international field generally. I assure your Lordships that the Bill is just one instance of the vigour and clear intention of the Government to pursue this wicked trade and to eradicate it.
One indication of the importance that we set by international co-operation is to be found in Clause 29, which provides for enforcement within the United Kingdom of external orders:
made for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value".Noble Lords will understand that so far as this Bill is concerned it can only be contained within the jurisdiction of Scotland, but I assure your Lordships that it is an earnest of our intention that there should be the fullest mutual co-operation between states to secure that these wicked men do not profit from their trade.
So far as the matter which the noble and learned Lord asked me about—namely, the newspaper report—obviously I have no knowledge of this and I should therefore be extremely cautious about making any more than a general comment, which is that extradition depends on a request by a foreign government and thereafter on the tracing and apprehension of the alleged offender, leaving aside the question of the provision of the necessary documentation. What the noble and learned Lord said in the debate will be noted by those who are intimately concerned with the matter.
The noble and learned Lord also asked me specifically a question in relation to the strength of Customs and Excise personnel in Scotland. On 30th November of this year some 2,018 staff were deployed in Scotland. Of these 508 were employed on Customs work—that is to say, working at airports, ports or inland—and concerned with the control of passengers and the import and export of freight. I cannot specify the proportion of such staff whose duties include the detection of drug smuggling, I am advised by Her Majesty's Customs and Excise. That indicates clearly the importance that is placed on this work within the Government.
I now turn to the helpful remarks made by the noble Lord, Lord Ross of Marnock, in relation to charity. Obviously we want to discuss this at Committee. I take the point that he made; it is perfectly valid. Equally we want to consider the point he made—again I respect the force of it—in relation to what is called the suspected drug trafficker. No doubt noble Lords will want to consider the equivalent provisions in English legislation.
The noble Lord also raised a point about Clause 49; that is to say, dealing with witnesses remaining in court. I think that my noble friend gave an explanation as to why that was. There has been a practice of the defence citing the procurator fiscal as a defence witness 1094 and not calling him. The result is that he has to remain outside the courtroom and is simply wasted. There is a very considerable supposition that it is done specifically for that reason.
This is a general provision. It may be applied both to the Crown and to the defence. If the court is satisfied on cause shown—and that can be done in the civil courts, as the noble Lord, Lord Morton, knows—the person who has been cited as a witness may remain in court during the course of evidence. I do not anticipate that this would be any more than exceptional.
I am grateful to noble Lords for their reception of this Bill. There is one point which before I resume my place I should deal with, because the noble Lord, Lord Morton, raised it this afternoon. I am aware that he raised it last night on another matter and that I did not reply at that time. My right honourable friend the Secretary of State is considering proposals for the justiciary buildings. Obviously, work has been done on the original proposals and they have been amended. All that I can say is that discussions have been held with interested parties and further consideration at present is being given as to how best to improve the facilities available to the High Court in Glasgow. I note what the noble Lord said today and yesterday evening.
I again join with my noble friends in supporting this Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.