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Session 2001- 02
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Delegated Legislation Committee Debates

Draft Police and Criminal Evidence Act 1984 (Drug Testing of Persons in Police Detention) (Prescribed Persons) Regulations 2001

First Standing Committee on Delegated Legislation

Monday 9 July 2001

[Mr. David Amess in the Chair]

Draft Police and Criminal Evidence Act

1984 (Drug Testing of Persons in Police Detention) (Prescribed Persons) Regulations 2001

4.30 pm

The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I beg to move,

    That the Committee has considered the draft Police and Criminal Evidence Act 1984 (Drug Testing of Persons in Police Detention) (Prescribed Persons) Regulations 2001.

Mr. Amess, it is good to see you in the Chair. I am sure that you will preside over our proceedings in the style to which we have become accustomed.

The draft regulations were laid before the House on 20 June. They relate to new sections that were inserted into the Police and Criminal Evidence Act 1984 by the Criminal Justice and Court Services Act 2000, which introduced new powers for the compulsory drug testing of offenders and alleged offenders at various points of the criminal justice system, including testing in police detention. The regulations prescribe the persons who, if certain conditions are met, may take a sample of urine, or a non-intimate sample, from people in police detention for the purpose of ascertaining whether they have any specified class A drug in their body. The conditions and procedures for such testing are set out in new sections 63B and C of the 1984 Act, as inserted by section 57 of the 2000 Act.

Under the new provisions, police officers will have the power to request persons aged 18 or over who are in police detention to provide a sample of urine or a non-intimate sample such as saliva for the testing for a specified class A drug when the person concerned has been charged with a trigger offence—as set out in schedule 6 of the 2000 Act—or when he or she has been charged and a police officer of inspector rank or above who has reasonable grounds to suspect that the misuse of a specified class A drug caused or contributed to the offence has authorised the taking of the sample.

The class A drugs concerned are heroin and cocaine, including crack, as currently defined in the Criminal Justice (Specified Class A Drugs) Order 2001, which was laid before Parliament on 10 May. The trigger offences are those defined in various provisions of the Theft Act 1968, which mainly covers acquisitive crime, and certain offences under the Misuse of Drugs Act 1971, if committed in respect of a specified class A drug.

In compliance with section 63B(6) of the 1984 Act, the draft regulations define the persons who may take samples from those in the target group. The classes of prescribed person in paragraph 2 of the regulations are intentionally wide. It is proposed that, as well as police officers—as provided for in sub-paragraph (1)(a)—those prescribed to take samples should include persons employed by the police force or authority for that purpose, among other duties, and those employed by a contractor that is engaged by the police authority or force to provide the drug testing service.

Paragraph 2(1)(b) of the regulations provides for police forces or police authorities to employ civilian staff for such testing amongst other duties. That would allow for a similar arrangement to that which exists already in some police forces where civilian staff—sometimes referred to as civilian detention officers—are recruited to carry out fingerprinting and other processes, including the taking of DNA swabs in custody. Sub-paragraph (1)(c) extends that further to allow for the possible future use of persons employed by other bodies that are contracted by police authorities or police forces to provide the service of taking samples for that purpose.

The draft regulations will give police forces and police authorities flexibility to use non-police personnel to take samples when considered appropriate and thereby free up police officers for other duties. The drugs sub-committee of the Association of Chief Police Officers, the Association of Police Authorities and the police forces involved in the three pilot areas under the programme were included in those consulted about the persons to be prescribed to take samples.

The regulations are subject to the affirmative resolution procedure to allow for better scrutiny by Parliament, given the intrusive nature of drug testing, especially if the sample is that of urine. Although the class of prescribed persons is wide, samples can be taken only following a request by a police officer, and sufficient safeguards are in place to ensure that those taking the samples are suitable. Those safeguards include training in the use of the drug testing equipment and procedures; modifications being made to the PACE codes of practice in accordance with new section 66(2) of the Police and Criminal Evidence Act 1984 in connection with the exercise by police officers of their powers under section 63B; and guidance that will be issued to the police and which will be revised, as necessary, to ensure that any future contracting-out arrangements include safeguards in respect of training, security, health and other relevant issues in relation to the persons who will take samples.

The provisions for testing persons in police detention are to be piloted, initially in three police force areas; Nottinghamshire, Staffordshire and the Metropolitan police district. For the purpose of the pilots, only non-intimate samples of saliva are to be taken, making use of the advancements in drug-testing technology. The use of oral fluid is less invasive and avoids some of the health and safety and human rights issues associated with urine testing. Approval of the draft regulations will help provide police forces and police authorities with sufficient flexibility to engage staff to undertake drug testing now and in the event of further implementation in other areas. I commend the regulations to the Committee.

4.37 pm

Mr. Oliver Heald (North-East Hertfordshire): I join in welcoming you to the Chair, Mr. Amess. I know that you will deal with us in your customary courteous manner and we will all be able to hear what you have to say to us. I also welcome the Minister to his responsibilities.

The Opposition welcomed clause 57 of the Criminal Justice and Courts Services Act 2000. We have made it clear that we thought that drug testing was important, both in trigger offences and in circumstances where a senior officer felt that a person who was charged with an offence might have been acting in a particular way because of drug use. We—particularly my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe)—made the point at the time that it is also important to be sure that in cases where a class B drug such as amphetamine has been used, the testing arrangements should apply. Ministers said at the time that they felt that that was not appropriate, but I would be grateful if the Minister could help us on whether the thinking has matured since then.

The persons designated in paragraph 2 as those who can take samples are the right ones, but we would welcome more information about who will supervise the samples. This would normally take place in a custody suite, but can the Minister assure us that police officers will supervise the operations overall? Who will do the training? Will it be done through police training arrangements? Is the Minister satisfied that the training will be adequate?

Clearly, human rights issues can be involved in any detention when a request is made and implemented. In that context, the training should be adequate and should preferably be done by the police or using the police training facilities. The Minister said that he had consulted ACPO and the Association of Police Authorities. Has he consulted the other police organisations, such as the Police Superintendents Association and the Police Federation? If so, what was their view of the proposal?

Finally, can the Minister confirm that the PACE codes will cover the work not just of police officers, but of contractors and civilian workers who are mentioned in the order? I hope that the Minister can write to me if he does not have the answers immediately. We welcome the order, as it advances an important provision.

4.41 pm

Norman Baker (Lewes): I welcome you to the Chair, Mr. Amess; I am sure that you will discharge your duties in a thoroughly commendable manner. May I also welcome the Minister to his new role? He has moved from the Department of the Environment, Transport and the Regions, as it was called in the previous Parliament.

I am not entirely happy with this draft order. The Minister has said that the classification set out in paragraph 2 is intentionally wide. He also referred to the intrusive nature of drug sampling. There is a potential conflict in what we are considering this afternoon. The Government must be careful when they proceed along a track that interferes with what might be regarded as the rights or, dare one say it, the liberties of the individual. We are talking about people who have not been convicted of any crime and who are, at this point in the process, innocent. They have not been before the courts and found guilty, let alone sentenced; yet we are talking about subjecting them to drug testing of an invasive nature. Parliament considered the procedure in the Criminal Justice and Court Services Act 2000, so we are not here today to discuss its merit. However, we can reflect on the invasive nature of the proposals that were agreed as part of that Act and discuss how they should be implemented.

I am not clear why the classification is intentionally wide and why, given the potential invasion of rights and civil liberties, the Government did not conclude that it should be rather narrower to ensure that rights are not infringed. For example,

    ``a person employed by a contractor engaged by a police authority or police force''

is a rather wide definition. We do not want a sort of Railtrack operation in our police stations, undertaking work of this nature. I have every confidence in the police, but I have rather less confidence in those who might be employed as contractors; no doubt at a cheap rate, once the process has been subject to competitive tendering. Such people might be employed at rather low wages and may not have the same job satisfaction or determination as the police. Who will be the contractors? What safeguards or guarantees will there be to ensure that they behave as we would expect police officers to behave?

The Conservative spokesman, the hon. Member for North-East Hertfordshire (Mr. Heald), rightly mentioned training, and I was pleased to hear that there will be training for people employed to do the work. How much training will there be? Will there be a five-minute course, or an exhaustive two-week course? Who will ensure that the people employed are suitably trained, and how will such training be assessed? Who will ensure that once people have been approved, they remain suitable for the job? What ongoing assessment will be made in that respect? I hope that the Minister is taking note of these important questions, which need to be answered.

Will an external witness have to be present when the samples are taken? That is an important point, because a person from whom a sample was taken may subsequently make an allegation of inappropriate behaviour; assault, for example. What will be the process for dealing with such matters, and for ensuring that an external witness is present when a sample is taken?

What safeguards will there be to ensure that samples are not tampered with, so that we can be certain that the sample taken is the one tested? Will the Minister say more about the proposal's definition of a non-intimate sample, the phrase used in the explanatory note? Does it refer only to saliva, the example that the Minister gave? Or are there non-intimate samples, other than urine or saliva, which might fall within the definition? It would be helpful if the Minister said whether the definition was exhaustive.

The trigger offences relate to section 57 of the Criminal Justice and Court Services Act 2000. Will the Minister expand on what he said about an inspector's belief about what had caused or contributed to such offences? Does the Minister take the view that if an inspector or an officer of more senior rank felt that someone was committing burglary to feed his heroin habit, it would justify the police officer in question demanding that a drug test be taken? That seems a very wide proposition and I would welcome the Minister's reassurance that the definition is appropriate and narrow, and not all-encompassing. An all-encompassing definition might lead to the discovery of one or two persons who, unknown to the police, were involved in drug culture, which would be useful in criminal justice terms.

However, I remind the Minister that there is a balance to be struck between criminal justice and an individual's civil liberties. For every individual who tests positive for drugs, another may test negative. That person's liberty will have been interfered with in an invasive way, so the Government must get it right.

If the Minister cannot answer my questions now, perhaps he will write to me in due course.

4.48 pm


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Prepared 9 July 2001