Drugs sentencing guidelines consultation

On 15th January 2020 a new Consultation on Drug Offences was released. Alex Close-Claughton discusses such consultation and considers how the Sentencing Council are proposing to update the guidelines with regard to the changing landscape of illegal drugs.

The Drug Offences Definitive Guidelines for Sentencing came into force in February 2012. It is a document that Judges use in order to determine the appropriate sentence for specific drug offences. Judges use a series of tables in order to cross reference the type of offence with the facts of the case, often including the quantity of the drug in question and the Defendant’s role in commission of the offence. Once this have been done a starting point and a range are determined. The Judge then applies any mitigating or aggravating features of the case in order to determine where in the sliding scale of the range the Defendant falls. It covers the main offences under the Misuse of Drugs Act 1971 and can be found here.

However, lot has changed since 2012 which has caused the guidelines to appear a little out of touch. For this reason, the Sentencing Council have created a new Consultation on Drug Offences which contains proposed new guidelines that are designed to take into account the changes that have taken place. The most notable changes are: The Psychoactive Substances Act 2016; the rise of the county lines operations; changes in the usage and strength of drugs; and the increase in cyber-enabled offences including the use of encrypted phones or the use of the dark web.

Psychoactive Substances

In the last decade there has been an increase in the use of new psychoactive substances such as synthetic cannabinoids (Spice, Black Mamba etc.) and drugs imitating the effect of traditional stimulants (mephedrone, BZP, MDAI). These were legal and often more dangerous than the drug they were designed to imitate and could cause serious health issues and addiction. The problem was (and still is) particularly acute in the UK’s prisons. It led to the implementation of the Psychoactive Substances Act 2016, which criminalised any substance ‘capable of producing a psychoactive effect in a person who consumes it.’ New offences relating to psychoactive substances which are not controlled by the Misuse of Drugs Act, were introduced by the legislation.

The current sentencing guidelines predate the new legislation and therefore the Sentencing Council have decided that they should be updated.

The proposed new guidelines will include the new offences introduced by the Psychoactive Substances Act 2016. These offences are as follows: producing a psychoactive substance, supplying, or offering to supply a psychoactive substance, possession of a psychoactive substance with intent to supply, importing or exporting a psychoactive substance, possession of a psychoactive substance in a custodial institution. They appear in the proposed guidelines alongside their corresponding Misuse of Drugs Act offences.

County Lines

Whilst the proposed guidelines have been altered to include the new offences, the general sentencing practice remains largely unchanged. Judges are still required to determine the category of harm (usually based on the quantity of the drug) and then to determine the culpability of the offender. This is done by determining what role the offender has played in the offence. The roles are: lesser, significant and leading. Specific factors are listed by the guidelines which assist the judge in determining the role of the defendant. For example, the guidelines stipulate that a defendant convicted of supplying drugs who have ‘substantial links to, and influence on, others in a chain’ should be placed into the leading role category. This results in an increased sentence when compared to someone who would be placed into a significant or lesser role, even though quantity of the drug is the same.

The rise in the prevalence of county lines gangs who migrate out of the bigger cities where competition is high and street prices of drugs are lower into smaller towns and rural areas where the opposite is the case. It is said that these gangs often use children or vulnerable adults to mule the drugs across the country; and trends such as ‘cuckooing’ have come to the foreground.

Cuckooing is where offenders exploit vulnerable people in the local area by using violence or the promise of free drugs for the use of their address as an outpost for the gang’s drug suppling activities. The sentencing council have sought to address these issues by introducing the following factors as an indication that the Defendant should be placed into a leading role: Exploitation of children and/or vulnerable persons to assist in drug-related activity; Involving an innocent agent in the commission of the offence (importation guideline only); Exercising control over the home of another person for drug-related activity (supply and production guidelines).

The existing guidelines go some way to protect those who have been exploited by gangs but are still guilty of criminal offences, by including the following factors in the lesser role category: performs a limited function under direction; engaged by pressure, coercion, intimidation. However, the consultation has asked readers for their view on any additional factors that could be introduced.

Changes in usage and strength of drugs

Over the last 8 years there has also been an increase in the purity and strength of drugs and some change in the way that they are consumed. Some changes specifically relating to MDMA are dealt with by the guidelines. Firstly, the way that MDMA is consumed has changed.

Under the current guidelines whilst with drugs like cocaine and heroin the level of harm is determined by the quantity in grams, MDMA’s level of harm is determined by the number of pills that can be made from the quantity of the drug. This means that if there are two drug suppliers being sentenced, both with the same quantities, one with MDMA and the other with heroin, the heroin supplier may get a lighter sentence.

The Sentencing Council now recognise that often MDMA is consumed it its powder or crystalline form therefore have drawn a distinction between MDMA and Ecstasy pills on the proposed guidelines and they bring MDMA in line with cocaine and heroin by distinguishing categories by quantity. This avoids the absurd situation described above.

The proposed guidelines also increase the anticipated yield of a cannabis plant for cultivation offences. Meaning the upper threshold for category 4 (the lowest category) has been moved from 9 to 7 plants and this has a knock on effect for the higher categories.

Cyber-Enabled Offences

In response to the use of encrypted phones by some of those involved in (often higher level) drug supply, the consultation suggests a new aggravating feature for drug offences. Meaning that evidence of ‘deliberate use of sophisticated methods, including encrypted communications or similar technologies, to facilitate the commission of the offence and/or avoid or impede detection’ would be an aggravating feature for drug offences.

This aggravating feature could also apply to offences where drugs are supplied through the Dark Web because it requires the use of Tor browsers to mask the IP address of users.

Conclusion

As the UK and Global society changes, so does the way that drugs are consumed and supplied. The Consultation on Drug Sentencing is the Sentencing Council’s attempt to keep up with the ever changing landscape of drugs and crime. It does go some way to address the main changes we have seen in the last 8 years. Whilst it may be the first consultation since the Definitive Guidelines were introduced, it is likely not to be the last as the factors which have influenced the recent changes continue to prevail.

This article is not a definitive assessment at the consultation and those wishing to read further on this can find the consultation in full here.