HL Deb 16 March 1998 vol 587 cc543-51

7.40 p.m.

Lord Evans of Parkside

My Lords, I beg to move that this Bill be now read a second time. The Bill amends Section 12 of the Criminal Justice (International Co-operation) Act 1990. Before turning to why I believe it needs amending in the way this Bill proposes, it may be helpful to the House if I explain what Section 12 of the principal Act does.

The section is concerned with precursor chemicals; that is, chemicals which are used in the manufacture of controlled drugs. The term "controlled drugs" has its usual meaning as those drugs which come within the scope of the Misuse of Drugs Act 1971.

Section 12 makes it an offence to manufacture or supply precursor chemicals, of which 22 are identified in the Act, knowing or suspecting that they are for the unlawful production of controlled drugs. The intention, therefore, is to prevent producers of illicit controlled drugs from obtaining the ingredients they need to make them.

There is also a system of licensing and registration for companies trading in precursor chemicals, which have many legitimate industrial uses besides the production of controlled drugs. This system regulates the manufacture and distribution of the chemicals, helps prevent their diversion and monitors international trade in them. It is replicated throughout the European Union by EC legislation and is mirrored in the other countries who are also parties to the 1988 United Nations convention against the illicit traffic in narcotic drugs and psychotropic substances.

For many years, and even before formal controls were introduced on precursor chemicals, the United Kingdom authorities have had a constructive relationship with the chemical industry. But in my view in one respect the industry has not had quite the protection it deserves when it has helped the authorities.

Consider the situation where a manufacturer of a precursor chemical, suspicious that an order he has received is destined for the unlawful production of a controlled drug, notifies the police of his concerns. The police, on considering the matter, take the view that it is indeed a suspicious order but that there is insufficient evidence to charge the person who has ordered the chemical with an offence. To secure sufficient evidence, they suggest that the manufacturer fulfils the order by supplying the chemical. But here is the rub. Under the law as it stands, as soon as the manufacturer supplies the chemical he commits an offence. It is of no help to him that he has done so at the request of the police as a good citizen. That cannot be right.

I understand that there is in practice an administrative arrangement which the police and the Crown Prosecution Service can employ in individual cases to give manufacturers who assist in such a way reassurance that they will not be prosecuted. I do not believe, however, that that is enough. What my Bill does is to provide a statutory safeguard. In terms, it states that: A person does not commit an offence … if he manufactures or … supplies the scheduled substance with the express consent of a constable". My Bill provides a statutory safeguard to all those who are assisting the authorities in the continuous fight against illegal drug production.

The responsible trade deserves this safeguard and through this small and modest Bill would obtain it. I commend it to the House.

Moved, That the Bill be now read a second time.—(Lord Evans of Parkside.)

7.43 p.m.

Lord Thomas of Gresford

My Lords, I am most grateful to the noble Lord, Lord Evans of Parkside, for introducing the Bill and for the careful way in which he explained its purpose. It is interesting to note that it took until the 1990 Act was passed to outlaw the production of precursor chemicals for the making of drugs. Yet it was as long ago as 1874 that a Mr. C. R. Alder Wright, in London, boiled morphine with acetic anhydride, which is the leading drug in the schedule to the Act, and produced diamorphine. Some years later, that was termed by a German scientist as heroin, being, as he thought, heroic in its attributes. That is one of the ways in which today's scourge in the drugs industry has been created.

Although the Bill is simple, it appears to provide protection for agents provocateurs, Therefore, one requires a little care in approaching its provisions. I recall a case some years ago from Hong Kong called Somchai Liangsiprasert, where the appellant who appeared in the Privy Council here was a Thai national. He was persuaded by an agent provocateur, the equivalent of the noble Lord's constable, a DEA agent in the United States, to hand over a substantial quantity of heroin. That heroin, handed over in Bangkok, was immediately taken under armed US Marine Guard to the American Embassy and from the embassy was taken by plane by agents into the United States. Mr. Somchai Liangsiprasert was charged with conspiracy to import the drugs into the United States. Of course, they went in under the auspices of the United States Government. He was subsequently convicted of conspiracy to traffic in drugs in Hong Kong because he went to Hong Kong to collect his money.

One of the possible side-effects of this simple amendment to the Act is that it could make it impossible to bring conspiracy charges against the person who supplied the drugs to the agent provocateur, because if the agent provocateur does not commit an offence under the provisions of the Bill it may be that conspiracy charges would not be available to the prosecution. One would need to look at that matter with care.

When one enters into consideration of such a delicate area of the criminal law, a certain amount of care must be taken. We will provide that as the Bill goes through its proper stages.

7. 47 p.m.

Baroness Anelay of St. Johns

My Lords, I, too, thank the noble Lord, Lord Evans of Parkside, for introducing the Bill with such clarity. It was most helpful to the House. We on these Benches support efforts to prevent and prosecute the abuse and misuse of drugs. We did so while in government and were responsible for introducing the original 1990 Act which the noble Lord seeks to amend. We continue to support any attack on the trafficking in drugs. Drugs trafficking is indeed a menace to society. However, I also agree that where there is consensus between the main parties on action which should be taken it is sometimes perhaps all the more important to test the reasons why we are making changes in order to ensure that what we achieve is what we are intending. We must achieve the right policy intention underlying the proposed legislative changes.

Therefore, I have some questions to put to the noble Lord, Lord Evans, in the spirit of what I hope is helpful inquiry. Because I intend to be helpful, I gave advance notice of the general thrust of my questions. I note that the purpose of the Criminal Justice (International Co-operation) Act 1990 was to enable the United Kingdom to co-operate with other countries in investigations and criminal proceedings to implement the 1988 Vienna Convention against illicit trafficking of narcotic drugs and psychotropic substances. It is therefore known as the Vienna Convention. It was also implemented to provide for seizure and detention and forfeiture of drug trafficking money which was imported or exported in cash. It had that dual objective.

The noble Lord has explained that Section 12(1) of that Act has a specific function. It makes it illegal for someone to manufacture a substance which is listed in the schedule accompanying the Act or to supply that substance to another person if he knows or suspects that the substance will be used for the unlawful production of a controlled drug.

The list of those specified substances is contained in the second table in Schedule 2 to the 1990 Act. Therefore, it includes such things as potassium permanganate and sulphuric acid—items which can be found in any school laboratory and can he used innocently. But, as the noble Lord pointed out, they can be used as part of the processes, as precursors, of the production of illegal drugs. That use would then be illegal under the 1990 Act.

The noble Lord explained why he feels that there is a loophole in the 1990 Act because manufacturers innocently going about their business may find that, quite unintentionally, they are being caught up in illegal trade as someone is trying to use the substances for illegal purposes. They try to be helpful to the police in sorting out the illegal side of it and securing a prosecution. At present, the problem is that they appear to be trapped and find themselves guilty of an absolute offence.

I read the discussions in Hansard on the original 1990 Bill. Mr. Butler raised that point and asked: If it becomes illegal knowingly to supply precursor substances, what happens if a manufacturing company which trades licitly has told the authorities of its suspicions and the authorities allow it to supply the chemicals to track down the clandestine laboratories? Would that manufacturing company still be liable to prosecution? The reply was given by my noble friend Lord Patten, who at that stage was a Member of another place. On advice he answered that no, large manufacturing undertakings involved at the beginning of the manufacturing process of precursor chemicals would not be liable in those circumstances". It was the best understanding at the time that there was an administrative procedure by which the manufacturers would not become liable to prosecution in the circumstances which the noble Lord, Lord Evans, outlined this evening. I was therefore interested that the noble Lord said that it is now understood that such companies would be liable. I listened carefully to his explanation and I shall read it in Hansard. Moreover, I shall listen with interest to what the Minister has to say on the subject.

Of course, I agree that it would be wrong to have any situation created by statute whereby an innocent manufacturer was made guilty of an offence and had to rely on an administrative decision only not to prosecute if that were the case and we found that people were falling foul of the law. But if that is not the case and no one has got into difficulties, perhaps amendments are not required. We must consider that issue.

The question to which I have addressed myself is whether this Bill marks a shift away from the original policy intention underlying the 1990 Act, perhaps unwittingly. Certainly, having heard the noble Lord's explanation, I feel that any such shift would be unwitting. However, we need to be aware of our objectives and the possible consequences of what we do in relation to any amendment to the statute.

So far we have heard from the noble Lord, Lord Thomas of Gresford, that he has reservations as regards the Bill because he feels that it may open the door to agents provocateurs having the opportunity to exploit its provisions. The amendment provides that the express consent of a constable is sufficient to enable someone to escape prosecution. I am concerned that the way in which the Bill is phrased gives an opportunity for perhaps another use of the amendment other than that which the noble Lord seeks to achieve.

The Bill introduces police powers in such a way that the law, if it were amended by this Bill, could be used by the police to extend further their activities in the setting up of sting operations or using people as agents provocateurs, as the noble Lord, Lord Thomas of Gresford, said. I ask the Minister whether that is an unintended but possible consequence of the amendment. If it is unintended, is that acceptable? Is it argued that the Bill is needed in order to be able to obtain convictions which cannot be achieved otherwise? Do the Government have examples of occasions on which the prosecution of criminal activities has been frustrated for want of this amendment? Do we expect in future that the police will set up sting operations from scratch, seeking to entrap criminals into placing orders so that they can track down a line of production and sale of illicit drugs?

Entrapment is a delicate area. Perhaps the Minister will address himself to how far one should be able to promote it within a Bill. I note that entrapment is a defence in the United States but not so here. Therefore, I ask the Government what is their view about the propriety of using sting operations and just how extensive their use should be.

Does every police force in the country still have, as I believe was the case in 1990, a police officer who is a dedicated precursor chemical monitor whose job it is to keep in close contact with all licit chemical manufacturers on his patch? If so, do the Government expect that in operational terms they will be the officers who will grant the consent which is to be introduced by this Bill? Or would it be members of the drug squad or any constable at all of any police force in the country?

These are broad issues of principle and practice which are raised by the Bill and which we should consider seriously. I should be grateful to either the Minister or the noble Lord, Lord Evans of Parkside, for a response to those matters.

Finally, there is one aspect of the Bill which causes me concern. It may be that the Minister or the noble Lord can answer the question satisfactorily. If not, perhaps the noble Lord, Lord Evans, will consider the matter between now and the Committee stage because it is a matter about which I am considering tabling an amendment.

I refer the House to line 10 of the Bill and the phrase, with the express consent of a constable". Why is the terminology of the 1985 misuse of drugs regulations not used? Those regulations contain the phrase, a constable when acting in the course of his duty as such". Would it not be better that that definition should be on the face of the Bill, given the sensitive and potentially extensive use of the amendment?

I suspect that we have all read reports of alleged corruption within the Metropolitan Police and the recycling of drugs by police officers, something I know the Metropolitan Police much regret. Therefore, is it right that we should agree to give a blanket right to a constable to grant consent for the manufacture or supply of scheduled substances? Surely it would be far better to make it clear right from the beginning that such consent can only give rise to legal activity if it is given while he is acting in the course of his duty.

Once again, I thank the noble Lord for introducing the Bill and of course we shall not oppose its Second Reading.

7.59 p.m.

Lord Williams of Mostyn

My Lords, I am grateful to my noble friend Lord Evans of Parkside for his introduction and explanation. We welcome the Bill. We believe that there should be a statutory safeguard against prosecution for those manufacturers and suppliers who assist in enforcement operations. It is perfectly true that the Crown Prosecution Service can, by arrangement with the police, give an undertaking that a manufacturer or supplier will not be prosecuted. We believe that that should be on a proper statutory basis.

The fact that this would then be provided for on a statutory basis as opposed to an administrative basis does not, therefore, alter the situation to which the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Anelay of St Johns, referred. If one has administrative arrangements, the opportunity for misdeed and wrong behaviour is no greater than if one has a statutory basis.

I turn now to one or two points of detail that have been raised. The noble Baroness asked why the reference should not be to a constable in the execution of his duty. The precedents are in the Drug Trafficking Act 1994 where Section 51 relates particularly to a disclosure which is a defence if a prospective defendant makes disclosure before a particular act and, the act is done with the consent of the constable". There is no restriction there to a constable acting in the execution of his duty; nor in the very serious circumstances of disclosure about the control of terrorists' funds. Again, the phrase is, acting with the express consent of a constable". One can see the point. It is very difficult to expect a manufacturer or supplier who is trying to assist law protectors and law enforcers to establish—and I am not quite sure how this could be done—that the constable is, indeed, acting in the execution of his duty. If the constable is not, and acts in the corrupt way specified by the noble Baroness, criminal sanctions and internal disciplinary sanctions can be taken against him.

We do not believe that there should be too much detail in that respect. Many of these decisions must be made operationally by chief constables. We believe that a chief constable running his force properly must have a margin of discretion about who gives the authority in particular circumstances. It may well be an officer of relatively junior rank because, very often, they have enormous expertise on drug squads. In response to an observation made by the noble Baroness, I should point out that most police forces have specialist officers whose duties include the monitoring of precursor chemicals.

Entrapment, "sting" operations and the use of agents provocateurs are matters which need to be carefully defined. It is manifest from Home Office and ACPO guidelines that police officers, undercover officers, or informants should not act as agents provocateurs—that is, those who incite or counsel others to commit a crime which would not otherwise have been committed. Ultimately, if the police overstep the mark, the prosecution has to take a view and the courts can also take their own view, which they do quite robustly, about abuse of process.

However, it seems to me that that is different from what might be called, in the argot, a "sting" operation because they vary infinitely. Some sting operations are perfectly legitimate and lawful. If someone is offering to sell stolen goods, or large quantities of drugs, I personally see no objection in morality, in principle or in law to an officer growing his hair and a beard, placing a ring in his nose or ear or any other appropriate part of his body—or, indeed, any inappropriate part of his body—and pretending to be Joe Bloggs. He will not go along and say, "By the way, I am Constable 343 Jones"—or indeed Williams—"will you please sell me these drugs?" Therefore, one has to be quite careful when talking about entrapment, "sting" operations and agents provocateurs. Police forces have to be astute and the CPS has to be very careful, as indeed do the courts, about abuse of process. As I said, the use of anyone as an agent provocateur is forbidden.

We believe that this is a useful Bill, which tidies up the law, because it gives protection to those who want to behave responsibly, lawfully and properly in assisting the police in what is a very dangerous area. I agree with what has been said. When one has a Bill which seems to have the approval of all corners of the House, that is the time when one needs to be particularly careful. As I said, we welcome the Bill and I am grateful to my noble friend for its introduction.

8.4 p.m.

Lord Evans of Parkside

My Lords, I should like to express my gratitude to the noble Lord, Lord Thomas of Gresford, and to the noble Baroness, Lady Anelay of St Johns for the comments that they have made on the Bill and for their broad welcome to it. I am especially grateful to the noble Baroness for giving notice of the points which she intended to raise. I should also like to thank my noble friend the Minister for explaining the Government's attitude. Of course, I shall accept the advice of my noble friend in that respect.

On the question of qualifying the definition of constable, I believe that my noble friend the Minister has given very sound reasons for using previous practice, which I certainly accept. The idea of the provision is that companies should feel comfortable when they are assisting the police in an operation to catch illicit drug manufacturers. To require them to satisfy themselves that the constable is executing his duty could, I believe, be counter-productive.

I understand and sympathise with the concern of the noble Baroness over sting operations. I also understand the noble Lord's anxiety about the use of agents provocateurs. However, it seems that they are worries which could apply to a range of operations and not just those involving precursor chemicals. I was reassured to hear that there is general guidance making it clear that police officers should not in any operations act as agents provocateurs. Of course, the final safeguard must be the courts.

I shall read most carefully what the noble Baroness and the noble Lord have said. I shall, indeed, study the Hansard report most carefully. If necessary, I shall be only too happy to consult with them and my noble friend the Minister as to how we should address such issues in Committee. I believe that the Committee stage could prove to be most interesting.

I earlier referred to the longstanding and constructive relationship which the UK enforcement authorities and the chemical industry have had. My Bill would help ensure that that important relationship endures into the future. It is important that it should if the pernicious business of unlawful manufacture of controlled drugs is going to be successfully combated. The Bill would provide just that hit of extra confidence for the industry. It is important that the industry should have that confidence given to it by Parliament. I very much hope that the Bill will find its way on to the statute book. I ask the House to give the Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.