Wednesday, 27 April 2011

Sentencing Council - a look at the draft guidelines for drug offences

Sentencing Council - Professional Consultation on Sentencing for drug offences

Consultation and Documentation 

In 2009, some 50325 adult offenders were sentenced for offences relating to controlled drugs.  This is a somewhat complex area and is also controversial since there is a wide spectrum of opinion about enforcement including those who argue for legalisation of drugs.    The Sentencing Council has issued draft guidance for sentencing and has invited comments which have to be received by 20th June. The draft guidance adopts a similar approach to the Council's recently issued guidance on Assault Offences - (Law and Lawyers 17th March).  Once the final guidelines come into effect
they will apply whatever the date of the offence.

The Council has proposed 5 groups of offences: importation offences; supply offences; production or cultivation offences; offences relating to use of premises and possession offences.  In practice, the majority of offending relates to possession.  There will be 8 steps to follow to reach a sentence but each guideline is tailored to the specific offences which it covers.

A full reading of the Council's proposals and also the other documentation on their website is essential to a full understanding of this topic.  However, it is instructive to consider examples.

Example 1: D was found in possession of 5 ecstasy tablets - a controlled drug (Class A).  He was at a licensed club at the time.  He pleaded guilty at the outset - before a trial .  He has no previous convictions.  This is an offence under the Misuse of Drugs Act 1971 s.5(2).  The maximum possible prison sentence is 7 years.  However, the guidelines set an "Offence Range" of Fine to 3 years.  It is highly likely that D's level of offending would be dealt with by the Magistrates.  The 8 steps are:

1.  Decide the Offence Category - it would usually be the weight of drugs which decide the "Offence Category" but for ecstasy it is the number of tablets.  3 to 9 tablets is Category 3.  Here we have 5 tablets. 

2. Decide the Starting Point and "Category Range" - the Starting Point applies to all offenders irrespective of plea or previous convictions.  Ecstasy is a Class A drug which, combined with the "Offence Category" of 3,  leads to a starting point of Medium Level Community Order.  There is a Category Range of low level community order to 26 weeks custody.  The court would then look at the non-exhaustive list of factors which either aggravate the offence (e.g. previous convictions or drugs on license premises etc) or mitigate (e.g. no previous convictions, remorse, isolated incident etc).  In our example the aggravating feature is that the drugs were on licensed premises.  However, by way of mitigation, D has no previous convictions.

3. Are there any factors indicating a reduction in sentencing such as assistance with the prosecution?  [See Serious Organised Crime and Police Act 2005 ss.73,74].

4. Reduction for a guilty plea.  Up to one-third reduction is normal - the amount depending on the timing of the guilty plea.  In our example, D's plea was at the outset.  [Criminal Justice Act 2003 s144].

5. The court must consider the "totality" principle.  This would apply, for example, where there are several offences arising essentially from the same conduct.

6. Consider any "Ancillary Orders" - here the drugs would be forfeited.

7. The court must give reasons for the sentence and explain its effect.  [Criminal Justice Act 2003 s.174].

8. Any time (e.g. in custody) on remand has to be considered and credit given for it.  [Criminal Justice Act 2003 ss. 240 and 240A].

On the basis of this guidance, the likely sentence for such a "straightforward" case would therefore be a low level community order - due allowance having been made for the guilty plea (step 4).  "Low level" community orders include unpaid work requirements of 40 to 80 hours or curfew requirements for up to 12 hours per day for a few weeks.

Example 2:  E has been convicted after trial of possession of a Class A drug (heroin) with intent to supply: Misuse of Drugs Act 1971 s.5(3).  The maximum sentence here is life imprisonment.  The Offence Range within the guidance is Community Order to 16 years imprisonment. 

1. Decide the Offence Category - the guidance divides this into two elements:  the culpability of the offender (i.e. his role) and the quantity (assessed by weight and not taking account of "purity").  The offender's role can be "leading", "significant" or "subordinate."  The amount may be very large, large, medium, small or very small.

Let us assume that E's role was subordinate and a medium quantity was found.

2. Starting Point and Category range - The Tables in the guidance apply to all offenders irrespective of plea or previous convictions.  Possession with intent to supply Class A drugs with a subordinate role and a medium quantity takes us to a starting point of 4 years imprisonment with a category range of 3 years 6 months to 5 years.  The judge would then consider the aggravating and mitigating features including whether there are previous convictions.

Points 3, 4 and 5 are as above.  Point 6 requires the possibility of Confiscation Proceedings to be considered as well as any other ancillary orders.  Points 7 and 8 are as above.  Thus, E will be liable to serve a fairly substantial term of imprisonment.  Had E been a leading actor with a very large quantity of Class A drug he would be facing a prison sentence in the range 12 to 16 years.

The Council indicated that the aim has been to improve consistency of sentencing whilst keeping the average severity of sentence the same.  They have tried to seek fairness, consistency and proportionality.  One type of offender - the "drug mule" - may receive a lighter sentence than previously since the Council was of the view that their sentences have sometimes been disproportionate.  The "drug mule" they have in mind is the person motivated by need as opposed to financial gain.  Such persons, the Council claims, operate as a result of either naivety or pressure.  Refer to "Drug Mules - 12 Case Studies"


  1. "The "drug mule" they have in mind is the person motivated by need as opposed to financial gain."

    Is it possible to make a principled distinction? How poor does one need to be before financial gain becomes need?

  2. Good question Ben - and I am not entirely sure that there is a clear cut answer. Perhaps there does not have to be. Sentencing guidelines must never be allowed to become "tramlines." The facts of cases are extremely variable and matters such as this have to be left to the good sense (hopefully) of the sentencing judge. I think that sentencing hearings might be interesting in these cases since there are lots of points to bring out. Identification in detail of the precise role of the defendant will be crucial and the sentencer will have to examine carefully the motivation.