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Lord Thomas of Gresford moved Amendment No. 132:


(" . It shall be a defence for a person accused of an offence under section 8 of the Misuse of Drugs Act 1971 (occupiers etc. of premises to be punishable for permitting certain activities to take place there) that he did not wilfully permit an activity under that section to take place.").

The noble Lord said: This is the miscellaneous chapter in Part III. The amendment raises a new issue. It refers to Section 8 of the Misuse of Drugs Act 1971, which makes it an offence for the occupier or any person concerned in the management of any premises knowingly to permit or suffer the use of drugs on their premises.

The reason for the amendment derives from a case which achieved some publicity in Cambridge recently where Members of the Committee will recall that a charity which was providing services to the homeless in Cambridge, including an open access drop-in centre offering cheap food, washing facilities, free clothing, support and advice and so on, was the subject of a police investigation .

In that case a trial took place at the King's Lynn Crown Court at the end of 1999 and leave to appeal has been granted against the sentences imposed there. The appeal has not been heard .

I do not propose to address any remarks to that appeal because, of course, the appeal will be determined upon the wording of the Act as it presently stands. I do not feel that I shall in any way embarrass the Court of Appeal by moving this amendment .

The purpose of the amendment is to replace the word "knowingly" permit with "wilfully" permit. The circumstances at which this amendment are aimed are these. All over the country there are day centres and centres for homeless people which are attempting to do something to assist and rehabilitate people who have drug problems. It is inevitable that the people whom they are trying to help will, from time to time, bring drugs into the premises and may consume them, or attempt to do so, in different ways .

It is almost impossible to deal with people of that nature without risking the provisions of Section 8 of the Misuse of Drugs Act as it now exists. The purpose of the amendment is to make it a criminal offence if, and only if, there is an element of wilful

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encouragement involved in the person who is charged with this offence under Section 8 of the Misuse of Drugs Act .

In order to take this opportunity to right what may not be a particularly satisfactory criminal provision, I beg to move this amendment.

9.15 p.m.

Lord Bassam of Brighton: The amendment moved so eloquently by the noble Lord, Lord Thomas of Gresford, may have a seriously adverse effect on the number of successful prosecutions against owners and those concerned in the management of premises by providing a defence for those who did not take adequate measures to prevent the production, supply or use of illegal drugs on their premises .

Further, innocent occupiers of premises are already adequately protected, in our view, by the elements of "knowledge" and "permitting" in the Section 8 offence. Section 8 of the Misuse of Drugs Act 1971 recognises as serious offences per se the connivance of those in charge of premises to allow the unlawful production, supply or consumption of controlled drugs to take place there .

Section 8 of the Misuse of Drugs Act 1971 makes it an offence for an occupier or person concerned in the management of premises knowingly to permit certain specified actions to take place on those premises; namely, the production or attempted production of a controlled drug, the supply or attempted supply of a controlled drug or the preparation of opium for smoking or the smoking of cannabis .

Section 8 replaces a similar section in the Dangerous Drugs Act 1965 and was drafted specifically to ensure that only a person with guilty knowledge can be caught by its provisions .

Section 8 as currently drafted does, we think, quite properly require those concerned in the management of premises to accept responsibility for taking all reasonable steps that are available to them to prevent drug dealing.

The Misuse of Drugs Act 1971 currently provides no special defences in relation to Section 8 offences. The suggested new clause, which provides a defence that the person concerned did not act "wilfully", could weaken those provisions. It would certainly make them less clear. It could enable owners and managers to argue that, although they had guilty knowledge of the illegal activity, they had not permitted it wilfully, for example, by showing that they had perhaps taken some half-hearted, but not all reasonable, measures to prevent the production, supply or use of illegal drugs on their premises.

The precise intention of the amendment is far from clear. If it is designed to protect the occupier who does not know about the illicit activity or who, despite his best efforts, is unable to prevent it, the amendment is unnecessary and makes the existing protections less clear. Alternatively, if it is designed to limit the offence to occupiers who positively encourage such use of their premises, I suggest that it represents a significant

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weakening of the criminal law in this area. In any event, it obfuscates and confuses. We believe that clarity is crucial in the drafting of criminal offences.

I am well aware of the prosecution of Ruth Wyner and John Brock. However, I do not believe that it would be appropriate for me to comment on that for the very reasons that the noble Lord has described.

I do not believe that we can accept the amendment. It would not be proper and, from our point of view, it would weaken significantly an important part of the criminal law.

9.30 p.m.

Earl Russell: I listened with much interest to the Minister. He made a serious attempt to engage with the argument of the amendment. However, I believe that there is a certain circularity in his arguments. He says that the amendment might prevent a number of prosecutions which are brought at present. In effect, he is saying that the effect of the amendment might be to alter the law. However, that, of course, entirely begs the question of whether the law should be altered, and it entirely begs the question of whether all the prosecutions which are brought at present should be brought.

It is a very high priority of this Government, and of the Prime Minister in particular, to get homeless people off the streets. We accept that priority, but it entails providing them with somewhere else to go. We have a situation where the use of drugs among large sections of the population is extremely common. We also have a situation where one cannot impose many sanctions against someone who has no home, no property and no regular source of income; that person has nothing on which any of the regular sanctions can purchase.

Therefore, people who are in charge of hostels for the homeless may be confronted by a situation in which either they must know that drugs will on occasion be consumed on the premises, although they may not know by whom, or, in order to prevent that, close the place down altogether.

My late friend Lady Seear used to say that politics was always a matter of choosing the lesser of two evils. In this situation I would not have great difficulty in deciding which I considered to be the lesser of two evils. Does the Minister have an opinion as to which of those two evils would be the lesser?

Lord Bassam of Brighton: I accept that the noble Earl places a very interesting dilemma before us. However, our concern is to ensure that we have effective law to deal with the drugs menace. I have made a case which is clear: we believe that the amendment would significantly weaken the criminal law. We believe that the criminal law is necessary; it sets a standard.

Of course, the circumstances that the noble Earl describes present certain problems for those who run

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such institutions. However, we have put a great deal of resource into trying to tackle homelessness. We believe in getting people off the streets. This piece of legislation does not prevent us pursuing that policy. We believe that the legislation is entirely necessary and we are content with it as it is.

Lord Thomas of Gresford: The essence of the dilemma to which the noble Lord referred is this: he says that the offence is guilty knowledge of the use or consumption of drugs by an occupier on the premises. However, that rather begs the question of whether that is guilty knowledge because the statute is in its present form. Is it in the public interest that a person who does his best for the community by taking homeless people off the streets and providing a roof over their heads takes a risk that they will use or consume drugs because that is their way of life? Is it in the public interest that that person is committing a criminal offence simply because he knows that that is happening, or should not there be an additional element of wilfully consenting to it happening?

I can see the utility of a criminal offence that is based upon the wilful consent to the use or consumption of drugs upon premises. However, I cannot see the utility of evicting people from homes that are provided by charities simply because the person knows that drugs are being consumed or used on the premises. That is the argument. I hope that the Minister will consider the matter.

The Earl of Listowel: Before the noble Lord withdraws his amendment, perhaps I may intervene. I remember interviewing a mental health nurse at a hostel for homeless drug users in Kings Cross. Two of her mental health nurse colleagues had resigned in the course of the year because of the immense pressure that the staff in the hostel experienced. Young people would congregate in the office around the workers, desperate for their attention. I am concerned that people like that worker, who is a single mother but absolutely devoted to her clients, would be put in the position in which they are concerned as to whether they may be breaking the law, although they are doing their best for the young, desperate people. Has the Minister any way of reassuring people in that situation that they can carry out their job without undue anxiety?

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