Psychoactive Substances Bill [HL]

Lord Bassam of Brighton Excerpts

Tuesday 14th July 2015 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, there is no doubt that one can think of serious aggravating factors in relation to these offences. In Committee I supported the amendment tabled by the noble Lord, Lord Rosser, and the amendments proposed by the noble Lord, Lord Kirkwood. However, I understand the difficulty that there are so many possible aggravating factors that it is very difficult to cover them all adequately, and that as they change and the circumstances change, the description of these aggravating factors may change. One of the problems is that, if you specify aggravating factors, the courts are apt to proceed on the basis that these are the aggravating factors that Parliament thought were important. Therefore, when the judge comes to pass sentence, he is inclined to give these full emphasis and possibly place less emphasis on other aggravating factors that may occur in a particular case.

At the time of the introduction of the Misuse of Drugs Act, when provision was made for aggravation, the statutory system of sentencing guidelines which has since been introduced did not exist with its statutory authority, which is binding to a substantial extent on the discretion of judges. That system has the great advantage of flexibility. To take the example of children’s homes, let us suppose it emerged that the people who were seeking to take advantage of vulnerable children had changed their method and, instead of trying to give these drugs out near the children’s home, found some way to get them into the children’s home so that they were possibly given to the children by others. I do not know exactly how this sort of thing might happen, but these situations can develop. These people are set on trying to overcome any obstacle to distributing their drugs to all who will take them, and to a greater and greater extent, if possible. I wonder whether it would be best no longer to have a provision for particular aggravation in the individual statute, but to rely on—and if necessary make reference to in the individual statute—the sentencing guidelines system, which is a flexible, influential and effective system within the criminal justice system as a whole. That has certain advantages, but it certainly would not work against a background in which a new Bill had other aggravating factors. Then, the question is: are the sentencing guidelines’ aggravating factors more or less important than those in the statute, if they happen to be different?

As I have said, I support the theory behind the amendments, but I wonder whether the more effective way of operating this within the criminal justice system is to make these amendments references to the sentencing guidelines. Instead of having a list of aggravating circumstances—conditions A, B and C—perhaps the statute before us should refer to the fact that aggravating circumstances are set out under the sentencing guidelines, for which the Coroners Act has statutory authority. That might be a more effective way of dealing with this matter—focusing on individual circumstances that are important and may change. Both the circumstances referred to—involving children, and prisons—are vital in the fight against the damage caused by such substances. Therefore, whatever happens, I want an effective method of treating these circumstances as aggravating circumstances to be before the courts on all occasions.

[Lord Bassam of Brighton (Lab)]

Minister.

[Lord Bates]

Thank you. I always get a little bit worried when the opposition Chief Whip appears in the Chamber towards the end of a debate on an opposition amendment. Anyway, I am sure that it has not pre-empted my response.

I want to put on the record that the noble Lords, Lord Rosser and Lord Kirkwood, are raising matters of enormous importance. That is why when they were raised in Committee, we undertook to reflect deeply on what was said. We organised a meeting with the Children’s Society, and there have been conversations since.

It would be helpful for those who picked up on the point made by my noble and learned friend Lord Mackay to be aware of the context in which we have to consider these amendments, because it is not immediately straightforward—or at least, it was not to me. The Misuse of Drugs Act 1971 contains no aggravating factors —the point that my noble and learned friend referred to. They were introduced in the Drugs Act 2005, which amended the 1971 Act and introduced an aggravated offence of supplying a controlled drug in the vicinity of school premises. The Coroners and Justice Act 2009, which was introduced under the previous Labour Government, stipulated that the courts must have regard to the sentencing guidelines. So, we moved from having nothing to having several statutory aggravating factors, and then to the commitment that the courts must not only pay due regard to but follow the sentencing guidelines. In February 2012, the Sentencing Council issued drugs offences definitive guidelines, which are the ones the courts are currently working from.

The guidelines describe the statutory aggravating factor:

“Offender 18 or over supplies or offers to supply a drug on, or in the vicinity of, school premises either when the school is in use as such or at a time between one hour before and one hour after they are to be used”.

Because that was put in the 2005 Act, which amended the 1971 Act, we, in preparing the Psychoactive Substances Bill, decided to follow through with that statutory provision. That is how we have arrived at this point. It was not a case of wanting to include some things and not others; we were simply following through in a consistent way the existing statutory amendments to the Act.

However, the sentencing guidelines provide other aggravating factors, for example:

“Targeting of any premises intended to locate vulnerable individuals or supply to such individuals and/or supply to those under 18”.

That is very clear guidance. As a result of the 2009 Act, the courts have to follow that guidance.

Some particularly powerful examples have been given in the debate, for example by the right reverend Prelate the Bishop of Bristol. Others were drawn from the Children’s Society, a meeting with which the noble Lord, Lord Kirkwood, and the right reverend Prelate the Bishop of Portsmouth attended yesterday. We listened to examples whereby new psychoactive substances are used as a tool to groom young vulnerable children and to lure them into a dependency on criminal gangs. It was reminiscent of the debate we had during consideration of the Modern Slavery Bill, when we heard about the use of such tools to elicit dependency. However, it is clear that the sentencing guidelines refer to premises in which the intention was to locate vulnerable individuals.

Essentially, the debate on these amendments distils down to whether we deal with everything in statute—in other words, we turn the clock back to before the Sentencing Council, before the guidelines, before the coroners’ board and before the 2005 Act—or we take robust action to ensure that the guidelines are updated and reformed to reflect the concerns that have been drawn to our attention, not least by Her Majesty’s Inspectorate of Prisons, as we heard this morning, by the Prisons and Probation Ombudsman, by the Children’s Society and by others. Of course, the report of the noble Lord, Lord Harris, on deaths in custody, was published a couple of weeks ago, and I am sure the Justice Secretary is considering it.

All these things have to be taken into account, and I undertook to explore this issue with my right honourable friend Mike Penning, who leads on this policy area and is a Minister not only in the Home Office but in the Ministry of Justice. In the days when the Home Office used to deal with everything to do with prisons, some of these decisions were slightly easier to make; however, in Mike Penning we have someone who is a Minister in both departments.

We had a long discussion this morning about this. The view was that we wanted to listen carefully to what has been said. It was drawn to our attention immediately, particularly with the potential targeting of children’s homes and accommodation, and the examples that we have heard from the Children’s Society and the church, that action needed to be taken. My right honourable friend the Minister for Policing, Crime and Criminal Justice will therefore be writing to the chair of the council, the Right Honourable Lord Justice Treacy, to draw this debate to his attention and to invite the council to take your Lordships’ views into account when considering what changes to the guidelines on drugs may be required as a consequence of the enactment of this legislation. That is going to happen.

I think and I hope that that might go some way to addressing the amendment of the noble Lord, Lord Kirkwood, in particular, and with the promise that we want to continue the dialogue with the Children’s Society, which I thought was immensely helpful, as this legislation goes through—