Written 14th May 2014 by Olliers Solicitors

Section 125(1) of the Coroners and Justice Act 2009 provides that when sentencing offences committed after 6 April 2010 the Court must have regard to the sentencing guidelines, unless it would be unjust to do so. This gives a Judge or Magistrates some scope to sentence outside the guidelines if they feel it would be appropriate.

Effect on Different Offences

Previously sentencing guidelines for drug cases were found in various caselaw. The new guidelines attempt to structure sentencing drug cases for the majority of offences by cross referencing the class of drug against the quantity and the relative involvement of the defendant.

Cross Referenced Guidelines

The following Offences fall into the cross referenced catagories.

Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug.

Prior to the new guidelines being imposed sentences were determined with reference to the case of Regina v Aramah. Previously the 100% purity weight was assessed and the sentenced calculated based on this figure. Heavy deterrent sentences in the region of 6 – 10 years were often passed on drug couriers carrying Class A drugs even after credit for a guilty plea. These defendants often committed the crime due to financial problems or after being put under duress.

This has changed. The sentence is determined on the actual weight of the drugs whatever the purity (though low purity can be a mitigating factor). Sentences for Class A couriers who are deemed to have been exploited, or seen to be acting under direction of others are now in the region of 2 ½ – 6 years (with a guilty plea). This is a significant change in sentencing policy.

Supplying or offering to supply a controlled drug Misuse of Drugs Act and Possession of a controlled drug with intent to supply it to another.

Sentences are broadly in the same range as before. The new sentencing guidelines codify a previous approach by the Court that if someone has bought a small quantity of Class A drugs on behalf of a group of friends on a non-profit basis then they could receive a non custodial sentence.

Interestingly the guidelines seem to set a threshold for prosecutions of offences of this type when the sole evidence is the quantity of drugs found on a person. The bottom level of quantities in the guidelines are:- heroin, cocaine – 5g; ecstasy – 20 tablets; LSD – 170 squares; amphetamine – 20g; cannabis – 100g; ketamine – 5g. This seems to suggest, for example, that if someone is arrested in possession of 19 tablets of ecstasy, and there is no other evidence of supply or intent to supply, they will not be prosecuted for these offences. It will be interesting to see how this works in practice.

Production of a controlled drug Misuse of Drugs Act 1971 and Cultivation of cannabis plant.

The majority of these Prosecutions tend to be for small to large scale production of cannabis in so called ‘cannabis farms’. Often these can be found in city centre office blocks, industrial units or residential housing. Previous guidelines were found in cases such as R v Xu, and Auton, Hindle, Phillips and Wilson v Regina.

The new guidelines effectively follow the principles seen from the old caselaw but put the previous guidance in a framework that is easier for a practitioner to work with.

The sentences seen from the new guidelines seem to be more liberal and less than the previous caselaw generally for people involved at the lower end of the spectrum. This enables more scope for the possibility of suspended sentences being passed instead of immediate custodial sentences than before.

Non-Cross Referenced Guidelines

Possession of Drugs

Prior to the new sentencing guidelines there were already in existence Magistrates Sentencing guidelines for simple possession of drugs. The old guidelines helpfully gave 4 categories of possession ranging from possession of a small quantity of drugs (one wrap or tablet) to the most serious category of ‘possession of a drug in prison’. Different ranges of sentence were given for each category.

Rather strangely, and in contrast to the rest of the guidelines, more discretion has been given to the Courts for these types of offences under the new guidelines.

A sentencing range is given for each class of drugs, with mitigating and aggravating features listed. A court now has a massive discretion to look at the facts and place within the sentencing range provided. This potentially increases the sentences for this class of offence. It will be interesting to see whether or not a Court would be willing to take on board the previous guidelines to place a case in the new guidelines.

Effect on Police Station Advice

When advising clients at Police Stations in relation to drug offences a practitioner should have at least a basic familiarity of the new guidelines.

A general principle that seems to emerge from the new guidelines is that the more serious offenders face potentially longer sentences. However the less involved offenders face less punitive sentences. Clients will have to be advised accordingly at the Police Station.

The new guidelines are particularly important when advising clients who could benefit under the new guidelines.

For example in the past it would often be of no benefit to advise a drugs courier to give an account in interview. If however now there is clear evidence of a drug couriers guilt and they admit the offence to the practitioner at the Police Station, it may be of benefit to them to put that account across either by answering questions or providing a statement to the Police. This is particularly the case when they state they were put under pressure, exploited or acting under direction.

This would apply equally for any defendant charged with other drug offences on the lower end of the spectrum in similar circumstances where putting across an account could place them in the lower end of the sentencing guidelines with the potential of a non-custodial sentence.

However it becomes more difficult to advise a person arrested for possession of any type of drugs under the new regime. In theory there is a risk of anyone possessing Class A or B drugs receiving a custodial sentence now, when previously there was less risk.

Toby Wilbraham

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