Psychoactive Substances Bill [HL]

Lord Paddick Excerpts

Tuesday 30th June 2015 Lords Chamber

Moved by

[Lord Paddick]

87A: Clause 32, page 18, line 42, leave out “or section 23”

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[Lord Paddick (LD)]

My Lords, Amendment 87A concerns the power to stop and search. I shall speak also to Amendment 94A, which concerns the power to seize and destroy substances. They are both probing amendments to try to understand why the Government feel it is necessary to include these powers to stop and search.

Originally we focused on Clause 23, which is about failing to comply with a premises order or a prohibition order, but, on reflection, similar arguments would apply to Clauses 4 and 8 in that the power to stop and search is supposed to be on the basis of suspicion that a person has committed, or is likely to commit, an offence under those clauses. These are criminal and arrestable offences. If a police officer or a customs officer suspects that a person has committed either of these offences, they would have a power under common law to stop and search that individual, having arrested them. My question to the Minister is: why is there a need for a separate power to stop and search when there is already a power under common law to do that?

Amendment 94A concerns the power for the police to dispose of seized psychoactive substances even where an offence has not been committed. Clause 46(1)(c) states that if an officer reasonably believes that an item is a psychoactive substance it can be seized and destroyed. My question to the Minister is, surely it needs to go beyond what an officer reasonably believes, otherwise legal substances could be destroyed by the police, with no comeback for the owner of the substances, simply on the basis of an officer’s reasonable belief about those substances that is not well founded and is not factual. I beg to move.

[Lord Howarth of Newport]

My Lords, my amendment in this group seeks to introduce a new clause after Clause 35. Again, it is on the subject of stop and search and, like the amendments of the noble Lord, Lord Paddick, its purpose is to probe.

The Committee should be told what the Government’s policy on stop and search is. In April last year the Home Secretary announced that she intended to introduce a comprehensive package of reform of police stop-and-search powers. She had been informed by Her Majesty’s Inspectorate of Constabulary that a quarter of a million stop-and-search operations—or some 27% of street searches—in 2013 had been illegal. In the other place she said:

“I want to make myself absolutely clear: if the numbers do not come down, if stop-and-search does not become more targeted, if those stop-to-arrest ratios do not improve considerably, the Government will return with primary legislation to make those things happen”.

She went on to say:

“nobody wins when stop-and-search is misapplied. It is a waste of police time. It is unfair, especially to young, black men. It is bad for public confidence in the police”.—[Official Report, Commons, 30/4/2014; col. 833.]

The Home Secretary noted that black people were still seven times more likely to be searched on the street than white people, which had been seen as “sharply divisive” in Britain’s black and minority ethnic communities. She might also have noted that in 2013, white people were twice as likely to have taken drugs in the previous year as black or Asian people.

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[Lord Bates]

My Lords, let me deal first with Amendments 87A and 89, which relate to the stop-and-search powers in the Bill. The noble Lord, Lord Paddick, has explained that Amendment 87A would remove the liability to stop and search persons suspected of committing the offence of failing to comply with a prohibition order or premises order. As I understand it, the case for the amendment is that any breach of a prohibition order or premises order would in itself constitute an offence under Clauses 4 to 8, and accordingly it is not necessary to apply the stop-and-search powers to the Clause 23 offence. Such reasoning seems to misunderstand the nature of the prohibition orders and the premises orders. As we have already debated, these orders may contain any prohibitions, restrictions or requirements that the court considers appropriate. Failure to comply with these would be a breach of the order and therefore constitute an offence under Clause 23, so a person could commit the Clause 23 offence without also committing one of the main offences under Clauses 4 to 8. It is therefore entirely appropriate that the stop-and-search powers extend to circumstances where a person is suspected of failing to comply with a prohibition or premises order. To remove the reference to the Clause 23 offence would weaken the enforcement powers in the Bill.

Amendment 89, in the name of the noble Lord, Lord Howarth, would require an annual report to Parliament on the exercise of the stop-and-search powers. We recognise the sensitivity surrounding the exercise of such powers, which is why my right honourable friend the Home Secretary is determined to reform the way that they are used. Indeed, our party manifesto included a commitment to legislate to mandate changes in police practices if stop and search does not become more targeted and stop-to-arrest ratios do not improve.

As to the specifics of the amendment, I advise the noble Lord that forces must already collect data on stop and search that are published annually for public scrutiny. Those data include the ethnicity of the individuals concerned. Forces are also required under the Best Use of Stop and Search Scheme to record additional data, such as the reason for the stop and search, the outcome and whether there is a connection between the two. This greater transparency enables greater scrutiny and accountability. I expect such data collections to include the stop-and-search powers provided for under the Bill. The noble Lord has raised some serious points. He is right that the stop-and-search powers in the Bill need to be properly monitored, but I hope I have been able to reassure him that there are already mechanisms in place to do just that.

Amendment 94A relates to Clause 46, which provides for a fast-track procedure for the disposal of seized psychoactive substances. The clause was included in the Bill at the direct request of the national policing lead on new psychoactive substances. Clause 46(1) outlines four conditions that, when met, allow a substance to be disposed of under the fast-track process.

Amendment 94A relates to the third condition—namely, that the officer reasonably believes that the seized item is a psychoactive substance but is not evidence of any offence under the Bill. Amendment 94A seeks to amend the condition so that a substance can be seized only where it is proved to be psychoactive. The procedure provided by the clause broadly mirrors the well-established process already in operation for temporary class drugs under Section 23A(4) and (5) of the Misuse of Drugs Act 1971. Section 23A(4) uses the same language as here—namely, a test of “reasonably believes”. For small quantities of seized substances, where there is no evidence of an offence under the Bill, this is an appropriate test. We must be mindful both of the need to protect the public—we do not want to be returning potentially harmful substances once seized—and to avoid tying up the police in unnecessary bureaucracy and the need for expensive forensic testing.

The amendment has the potential to severely restrict the utility of this power and questions the professional judgment of police and customs officers. An officer’s reasonable belief in this context could be based on the substance’s packaging, its markings or even whether the individual from whom it was seized appears intoxicated and the officer can infer that the substance found may be responsible. As demonstrated in the context of temporary class drug orders, requiring officers to make decisions based upon their reasonable belief is not new. The Home Office will continue to work with the national policing lead and the College of Policing to ensure that guidance is developed on this issue to assist officers.

The police rely on statutory stop-and-search powers. I refer noble Lords to annexe A of the Police and Criminal Evidence Act codes of practice for the full list. We need to add those statutory powers for the purposes of enforcing the provisions of this Bill. The Government are clear that the powers of stop and search, when used correctly, are vital in the fight against crime. However, when it is misused, stop and search is counterproductive and a waste of police time. That is why the proposal to introduce the best use of stop-and-search schemes and the publication of data, which the noble Lord requested, is such an important part of us monitoring how this legislation is implemented on the ground. That evidence will be collected and, therefore, able to be reviewed as this goes forward. I hope that, with that additional explanation, the noble Lord will feel able to withdraw his amendment.

I am conscious that a letter is on its way to noble Lords, which I promised after the interventions of the noble Lords, Lord Rosser and Lord Harris of Haringey, on the whole process of how one begins testing and determining whether what is there is a psychoactive substance. That is in train and will certainly be available to noble Lords ahead of Report stage. I hope that that will give further clarity on this matter.

[Lord Paddick]

I thank the Minister for his response. By changing horses half way through, I might have thrown the Minister in specifying Clause 23 and not specifying Clauses 4 to 8. Therefore, what the Minister read out was an assumption of what my thinking was, as opposed to what my thinking became when I presented it; namely, that if these are arrestable offences there is a power for the police, once the person is arrested, to detain and search them. Therefore, it would seem unnecessary to have the powers provided by Clause 32. I would not expect the noble Lord to respond now to that because it was my fault for misleading him in the way in which I presented the amendments.

On seizure and destruction of substances that an officer reasonably believes to be a psychoactive substance, my point was not about coming across a small amount in someone’s pocket that the officer could then seize and destroy. We were thinking more of where the substances were found in a head shop, for example, and turned out to be a large quantity which could or could not be a psychoactive substance. Those large quantities could be destroyed simply on the basis of the officer reasonably believing that they are something covered by this Bill, but which then turn out not to be.

Having further explained what I was getting at but did not make clear the first time around, perhaps the Minister will respond to me between now and Report stage. On that basis, I beg leave to withdraw the amendment.

Amendment 87A withdrawn.