Psychoactive Substances Bill [HL]

Lord Tunnicliffe Excerpts

Tuesday 30th June 2015 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, I agree with the noble Baroness. I am glad that she has tabled these amendments and made the points that she has. It does not look as if there is anything to worry about but it certainly would be very helpful to have reassurance from the Minister and some clarification. It would also be very helpful if he felt it possible to add explicitly to the Bill the amendment in the name of the noble Baroness and the noble Lord, Lord Paddick; namely, that,

“the provision of advice or information … shall not be a prohibited activity”.

We have a number of charities and organisations active in the field which simply seek to reduce harm and to protect vulnerable people. They are not proselytising for the taking of drugs but are knowledgeable about it and doing what they do with good intentions. We certainly do not want the kind of information websites that we have debated as regards previous amendments to find themselves with questionable legal status. Clarification would be helpful and if the Minister feels able to put something in the Bill so much the better.

[Lord Tunnicliffe (Lab)]

My Lords, I am sorry that the Chamber is not fuller to witness this unique moment when I agree with my noble friend Lord Howarth of Newport. I am not sure that it will happen again: it has certainly not happened before. We all take the view that well-informed education is key to drugs policy and to addressing these very difficult issues. The spirit of Amendment 54 seems quite interesting. We are very interested in how the Minister responds to it. It would be very bad if, by accident, we inhibited thoughtful education on this issue.

I cannot go all the way on Amendment 53. Certainly, I can see why we would like to make a crime of assisting. Encouraging, once again, gets into worrying territory. I will listen to the Government’s response with great care.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I think we all agree that the key element of this Bill is the provision of civil sanctions. These are important because they offer an alternative, flexible mechanism to tackle the trade in new psychoactive substances. The amendments in this group relate to the list of prohibited activities in Clause 11. These activities essentially cover the offences in Clauses 4, 5 and 8— namely, the production, supply, importation and exportation of a psychoactive substance—along with the secondary offences of assisting and encouraging those offences.

Amendment 53 seeks to remove paragraph (f) from Clause 11(1) and so remove from the list of “prohibited activity” activities which assist or encourage the production, supply, offering to supply, importation or exportation of a psychoactive substance. In the normal way, the secondary offences of assisting or encouraging a crime apply to each of the main offences in the Bill, which is why the Government have specifically included such conduct in the list of prohibited activity.

If this amendment were to be made it would not, for example, be possible to serve a prohibition notice on someone providing precursor chemicals to another person knowing that the other person intended to use them to produce psychoactive substances. Were that the case, the relevant law enforcement agency might then have no option but to charge that person with the criminal offence of assisting the commission of an offence under Clause 4. Amendment 53 could therefore have the opposite effect to the outcome that the noble Lord is seeking to achieve, as it would force law enforcement agencies down the prosecution route rather than deploying a civil sanction.

The noble Baroness has asked how assisting or encouraging a crime differs from aiding or abetting a crime. This is a complex subject, which has excited much debate within the legal community ever since the Serious Crime Act 2007 created the offence of encouraging or assisting. Perhaps it is simplest to acknowledge that there is potential crossover between the two concepts—on occasion it will be possible both to aid and abet, and encourage or assist—but there will also be offences where, because of the circumstances, it will be possible to encourage or assist, even though there is no aiding or abetting.

Amendment 54 seeks to make clear in the Bill that the provision of harm reduction advice or information does not constitute a prohibited activity. Let me assure noble Lords that giving such harm reduction advice will not be a criminal offence under the Bill. The Government have no desire to hinder the giving of such advice—the opposite is in fact true—but if someone were to publish a manual on the production of psychoactive substances, we would wish to see that activity prohibited. The Bill allows for this. For instance, guidance published by a charity which identifies and highlights the dangers of these substances will be seeking to reduce the harms of these substances and will not fall foul of the Bill. I hope that having that assurance on the record will allay any concerns that the noble Lords and the noble Baroness may have in this regard.

The Government recognise that this legislation is not the silver bullet to tackle psychoactive substance misuse. The Bill must be seen in the context of our wider strategy to tackle the harms they cause. We are also driving forward another key recommendation of the expert panel, that of enhancing our efforts to reduce demand, including through effective prevention programmes and by providing the right health-related services to support individuals recovering from substance misuse. This is, of course incredibly important. On the basis of that explanation and the assurance that I have given on Amendment 54, I hope that the noble Baroness will be content to withdraw her amendment.

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[Baroness Hamwee]

My Lords, in moving Amendment 55A, I will speak also to Amendments 60A and 71A, which stand also in my name and that of my noble friend. Again, the amendment deals with notices.

Amendment 55A would apply Clause 12(6) to people over 18 as well as to those under 18, and would mean that a prohibition notice must specify the period for which it is to have effect—certainty, although in a slightly different context, is something which we have touched on a good deal during the passage of this Bill—and that it must not have effect for more than three years.

I cannot envisage circumstances in which it would be appropriate to apply a prohibition notice to anybody for more than three years. I have my doubts about prohibition and premises notices anyway, but if there is a need to apply a prohibition notice for a longer period, surely the circumstances must be such as to suggest that there should be a prosecution—something rather tougher than a notice. At any age, certainty is important. Amendment 60A would apply both certainty and a statutory maximum to a premises notice.

In neither case has an offence been proved. I cannot see what a notice might do that would not be available under other legislation, particularly anti-social behaviour legislation such as a community protection notice. What is achieved by providing that somebody knows that he should not commit a crime and that the police and the local authority have got their eye on him? In a way, a premises notice is more important. I am assuming that if we are talking about head shops the intention is permanent closure. But the straightforward, honest course would be to address that directly with a proper hearing, giving the recipient of the notice more of a chance to deal with his business interests and have his representations heard in a proper way. I am concerned about the extent there.

Amendment 71A would add that what the court should do in an order should be proportionate as well as appropriate. I assume that that is implied because what courts do almost by definition has to be proportionate—but I am seeking confirmation of that at this point. I beg to move.

[Lord Tunnicliffe]

My Lords, I have some limited sympathy with these amendments. Any notice that has indefinite extent, which seems to be where the Bill is, has a certain discomfort about it. Clearly the Government share this discomfort because they are limiting the period of extent to three years for under 18 year-olds. I cannot see, having accepted that indefinite extent is inappropriate for under 18 year-olds, why it should not be inappropriate for those over 18. “Proportionate” is a word we all like to move around in legislation. I found that the Government have used it quite freely throughout the document. I will be interested in their response to Amendment 71A as well.

[Baroness Chisholm of Owlpen]

My Lords, I thank the noble Baroness for these amendments and the noble Lord, Lord Tunnicliffe, for his views. We see the civil sanctions as a useful tool to take proportionate action against offenders. The Bill contains two levels of sanctions: prohibition and premises notices, and prohibition and premises orders. Orders are the most severe, being imposed by a court and attracting a criminal offence for non-compliance.

Amendments 55A and 60A relate to prohibition notices as provided for in Clause 12 and premises notices in Clause 13. The Government have deliberately created the notice regime to be light touch, allowing a senior police officer or local authority officer to impose such a notice where they reasonably believe that a person is carrying on, or is likely to carry on, a prohibited activity as defined by Clause 11. In the case of a premises notice, the test is that there is reasonable belief that prohibited activity is being, or is likely to be, carried on at particular premises. There is no criminal sanction. The purpose of these notices is to try to stop further criminal behaviour occurring in the first instance. They are a form of final warning.

Amendment 55A seeks to remove the differentiation, so that the time limit will apply to all notices. Our starting point in relation to adults is that, as the primary aim of a prohibition notice is to stop an individual engaging in criminal conduct—something they should not be doing in any event—there was no need to impose a time limit. I remind the noble Baroness, Lady Hamwee, that other civil orders of this kind made against an adult—for example, anti-social behaviour injunctions—may also have an indefinite duration. I recognise that there are particular sensitivities about imposing civil sanctions on young people. For these reasons, we have restricted the duration of a notice issued to a person under 18 to a maximum of three years.

On Amendment 60A, a premises notice cannot be issued to an individual under the age of 18. Similar considerations apply here to those in Clause 12, so we feel that there is no need to put a time limit on premises notices.

Turning to Amendment 71A, we entirely agree that any prohibitions, restrictions or requirements contained in a prohibition order or premises order must be appropriate and proportionate. Proportionality will routinely be considered by a court as part of this decision. It is also important to remember that the court is bound by Section 6 of the Human Rights Act 1968 to act in accordance with the convention rights. Arguably, for the reasons I have given, it was not strictly necessary to include a proportionality test in Clauses 17 to 19 but we included it so that there was symmetry with the test applied by a senior officer or a local authority for the issuing of a prohibition notice or premises notice. I accept the spirit in which the amendment is intended but it is simply not necessary to amend Clause 21 to achieve this end. On the basis of this explanation, I hope the noble Baroness will be content to withdraw her amendment.

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[Lord Howarth of Newport]

I, too, endorse what the noble Baroness, Lady Hamwee, proposed. There will need to be very convincing arguments from the Government as to why there should not be a right of appeal, and I have much sympathy also with what has been said on the standard of proof.

[Lord Tunnicliffe]

My Lords, just to revert to my original path, I do not agree with the noble Lord, Lord Howarth, on the burden of proof. We think that for the orders a balance of probabilities is appropriate. The only question I seek assurance on is that if any individual were to be either imprisoned or fined, it would be under the provisions in Clause 23—and my understanding is that under that clause the criminal standard of proof would be necessary. Providing that one has that assurance, we do not object to the burden of proof in the relevant parts of the Bill with respect to the order.

[Lord Bates]

I shall respond, first, to the point made by the noble Lord, Lord Tunnicliffe. Clause 23 would require the higher criminal standard of “beyond reasonable doubt”, so that is how the matter would be dealt with.

Turning to the point about appeals, I believe that, as proposed, Amendment 64A would be disproportionate, given the nature of prohibition and premises notices. These notices are the first stage of our graded response to tackling the supply of new psychoactive substances. They are intended as a final warning and can be issued by a senior police officer or local authority requiring that the subject of the notice desist from any prohibited activities.

A prohibition notice can be issued only if the relevant officer reasonably believes that the respondent is carrying out, or is likely to carry out, prohibited activity. Therefore, it cannot be issued without good reason, and the issuing officer must also reasonably believe that it is a necessary and proportionate response, given the circumstances. As I have indicated, a notice acts as a final warning. Breach of a notice is not a criminal offence and there are no other direct sanctions flowing from a failure to comply.

The noble Baroness drew a parallel with community protection notices and pointed to the fact that the Anti-social Behaviour, Crime and Policing Act 2014 provides for a right of appeal against such notices. Indeed, this amendment largely mirrors Section 46 of the 2014 Act, but there is an important difference between a community protection notice and the notices provided for in the Bill, in that breach of the former is a criminal offence—hence the right of appeal.

I am not persuaded that, in the absence of a direct sanction for breach, a right of appeal is called for. If the respondent takes issue with a prohibition or premises notice, they can make representations to the issuing agency, which could then, if appropriate, withdraw the notice in accordance with the provisions in Clause 14.

Where the relevant enforcement agency concludes that a prohibition or premises notice had been breached, it could decide to pursue a prosecution for one of the main offences or make an application for a prohibition order or premises order, as the case may be. If the respondent is charged with an offence, they will be able to defend themselves in court in the normal way. If an application is made for a prohibition or premises order, again, the respondent will have his or her day in court and will also be able to appeal against the making of the order. We therefore have judicial oversight where it is appropriate.

I have tried to set out the nature of our graded response to the trade in new psychoactive substances and to state why I believe that an appeal process is unnecessary in the case of a prohibition or premises notice.

The other amendments in this group seek to provide for the criminal standard of proof, rather than the civil standard, to apply when a court is considering making either a prohibition or a premises order—a point on which the noble Lord, Lord Tunnicliffe, sought clarification.

Clauses 17 and 19, which Amendments 65, 65A, 68 and 68A seek to modify, make provisions for the application process for prohibition orders and premises orders, outlining a number of conditions that need to be met for an order to be made. Proceedings under Clauses 17 and 19 are civil proceedings. Accordingly, it follows that the civil standard of proof should apply. The noble Lord suggested that, as the proceedings are part of the criminal process, the criminal standard should apply, but this is based on a false premise. The whole point of the civil sanctions in the Bill is to enable law enforcement agencies to adopt a proportionate response to any offending behaviour and, in appropriate cases, to seek to tackle the behaviour by action short of a prosecution.

The application of the civil standard to such proceedings is not without precedent. Under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014, the civil standard applies to proceedings in respect of anti-social behaviour injunctions. The civil standard also applies to proceedings under Section 34 of the Policing and Crime Act 2009 in respect of gang injunctions. Of course, if a prohibition order or premises order is breached, the criminal standard of proof would apply to any proceedings for an offence under Clause 23, as I stated.

One of the key purposes of these civil orders is to enable the police, local authorities and other law enforcement agencies to act promptly to nip problems in the bud before they escalate. If the criminal standard of proof were to apply, it would necessarily dictate that more time was required for evidence gathering and there might be little to be gained by applying for a prohibition order as opposed to pursuing criminal prosecution for an offence under Clauses 4 to 8. These amendments would circumscribe the current flexibility built into the enforcement powers in the Bill, to the detriment of communities and defendants alike.

Much the same arguments apply to Amendments 85A to 85C to Clause 28. The clause provides that proceedings before the court under Clause 18 or Clause 25 are civil proceedings—those clauses relate to the making or variation of orders on conviction. It is the case that such proceedings take place in a criminal court, but it is important to remember that a prohibition order or premises order, as with similar civil orders, is not a punishment. As such, they do not form part of the sentence of the court. These orders are preventive in nature and in these circumstances it is again appropriate that the civil standard of proof and the civil standard of evidence should apply. Given that these are quite properly civil proceedings, I hope that the noble Baroness and other noble Lords with amendments tabled in this group will, on reflection, consider that the civil standard should operate and, in the light of this explanation, that the noble Baroness will withdraw her amendment.