Scrutiny : third progress report : seventh report of session 2004-05 : report, together with formal minutes and appendices / House of Lords, House of Commons, Joint Committee on Human Rights.
- Great Britain. Parliament. Joint Committee on Human Rights
- Date:
- 2005
Licence: Open Government Licence
Credit: Scrutiny : third progress report : seventh report of session 2004-05 : report, together with formal minutes and appendices / House of Lords, House of Commons, Joint Committee on Human Rights. Source: Wellcome Collection.
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![probabilities; or evidential, which is where the accused must adduce enough evidence for the defence to be an issue, but it remains for the prosecution to disprove the defence. 3.12 In R v Lambert the House of Lords held that, in order to be compatible with Article 6(2) ECHR, the burden of disproving knowledge on a charge of possessing a controlled drug with intent to supply” is required by s. 3 of the Human Rights Act 1998 to be read as imposing only an evidential burden on the accused.°! 3.13 The new provision inserted into the Misuse of Drugs Act casts an evidential and not a legal burden of proof on the accused: it does not require the accused to prove that the defence applies to him on the balance of probabilities, but requires him or her to adduce evidence sufficient to raise an issue that he or she may not have had the necessary intent. 3.14 We are unable to reach a definitive view on compatibility because the prescribed amount which triggers the applicability of the statutory assumption is not on the face of the Bill but will be contained in regulations to be made by the Secretary of State.” Bearing in mind the seriousness of the offence of possession with intent to supply, it will be important that there is a sense of proportion in the amounts which are prescribed by regulation as triggering the statutory assumption. 3.15 Assuming that the regulations prescribe amounts which are proportionate to the seriousness of the offence, we are satisfied that the reverse burden provision in clause 2(2) is compatible in principle with the presumption of innocence in Article 6(2) ECHR because it imposes only an evidential burden on the accused. Drug offence intimate searches (clauses 3-6) 3.16 Clause 3 of the Bill amends the provisions of the Police and Criminal Evidence Act 1984 (“PACE”) relating to intimate searches in relation to drug offences. Section 55 of PACE provides for an intimate search of a person where it is suspected that the person may have a Class A drug concealed on his person. Intimate searches of body orifices can be carried out without the need for the person’s consent. Such intimate searches for drugs offences must be conducted by doctor or nurse in a hospital or clinic. 3.17 The Bill provides that such intimate searches for drug offences can only be carried out where the person concerned has given their consent in writing. It also provides for the person who is to be the subject of the search to be informed of the giving of the authorisation for such a search and the grounds for such authorisation, and requires that the authorisation, the reasons for the authorisation and the fact that the person concerned consented be recorded in the custody record. Clause 5 also amends PACE to make new provision enabling a police officer to authorise an X-ray or ultrasound scan of a person in police detention who is suspected of swallowing a Class A drug. Both clauses provide that, where the appropriate consent to an intimate search or an X-ray or ultrasound is refused without good cause, a court or jury may draw such inferences from the refusal as appear proper. 60 Inss. 5(4) and 28(2) and (3) of the Misuse of Drugs Act 1971 61 [2001] UKHL 37, [2002] 2 AC 545 62 News.5(4C). Such regulations are to be made by affirmative resolution procedure: clause 2(3)](https://iiif.wellcomecollection.org/image/b32221873_0022.jp2/full/800%2C/0/default.jpg)
