The Sentencing Council released the updated Definitive Guidelines for Drug Offences on 27th January 2021 which come into force on 1st April 2021.
This article examines the updated guidelines and how they have sought to react to changes in the countries drug landscape since the guidelines were originally published in 2012.
What are the Drug Sentencing Guidelines and how do they work?
Drug sentencing guidelines are the same as other sentencing guidelines in that they are a document published by the Sentencing Council that a judge uses as a guide when passing sentence. Each section of the guidelines deals with a specific offence under the Misuse of Drugs Act 1971.
As with other guidelines, they seek to place offenders into categories based on harm and culpability. The level of harm is based on the quantity of the drug and is broken down into 4 categories, with weights ranging from 3 grams to 4 kilos. The level of culpability is determined by the offender’s role in the offence. The three ‘roles’ are leading role, significant role and lesser role. The guidelines contain direction as to the nature of each.
Once harm and culpability is established, the judge cross-references them with the class of drug to reach a sentence starting point and range. The guidelines then contain mitigating and aggravating features which that should be considered in order to determine where, in the range, the offence falls.
How have the Drug Sentencing Guidelines Changed?
There have been some notable changes in the guidelines. Firstly, the guidelines have been updated to reflect a change in the way MDMA (otherwise known as Ecstasy) is consumed. Also significant, is the introduction of into the guidelines of substances that come under the Psychoactive Substances Act 2017. In addition to this, in order to take into account the rising prevalence of County Lines operations and the phenomenon of ‘Cuckooing,’ the guidance on aggravating features and the offence of ‘Allowing Premises to be Used’ has been altered. The guidance was also updated to reflect the increased use of the dark web and encrypted communications in drug supply. All of this is explored in more detail below.
How has the guidance on MDMA/Ecstasy changed?
Previously, the guidelines did not mention MDMA at all. Reference was made to Ecstasy tablets (which generally contain MDMA or similar derivatives) but no mention to the substance itself. This is because when the original guidelines were published in 2012, the assumption was that MDMA was predominantly consumed in tablet form.
Problematically, those who were those convicted of offences concerning crystalline MDMA were sentenced based on how many Ecstasy tablets could have been made out of the crystalline form, with the calculation being based on 100mg of MDMA per tablet. This meant that being in possession with intent to supply 30 grams of MDMA could see an offender placed into category 3 (attracting a starting point of 4 years and 6 months) whereas the much higher figure of 150g grams of heroin or cocaine would attract the same starting point.
The recent consultation accepted two things; firstly that MDMA is commonly purchased and consumed by the gram in its crystalline form; secondly, that MDMA pills are stronger now than they have been in the past.
The above has led to two significant changes in the guidelines. Primarily, the guidelines now treat MDMA in the same way as heroin or cocaine, i.e. the weight required for each category is the same. This has resolved the strange situation outlined above where those convicted of MDMA related offences were at risk of facing significantly longer sentences than those convicted based on the same quantities of heroin or cocaine. The second noteworthy change is that MDMA or Ecstasy tablets are now considered by the guidelines to typically contain 150mg of MDMA as opposed to the 100mg previously assumed.
Guidance on Psychoactive Substances
Before the Psychoactive Substances Act 2017, which brought in a blanket ban on any substance deemed to be ‘psychoactive’; drugs that didn’t fall under the Misuse of Drug Act 1971 or other legislation were legally available to purchase. This led to endemic use of synthetic cannabis, commonly known as Spice, in the homeless and prison communities.
With the old guidelines outdating the new legislation, there was a need for the sentencing guidelines to be updated in this area. It is for this reason that the new guidelines contain explicit mention of synthetic cannabinoids. Interestingly, the Sentencing Council have refrained from numerically defining quantities and weights and instead have used descriptive words such as ‘very small’ or ‘large indicating commercial scale’ to determine the correct category. It is not obvious why but it may be in order to reflect the fact that synthetic cannabinoids can vary significantly in appearance and potency and this then allows judges to use an element of discretion when sentencing.
Guidance on County Lines operations and Cuckooing
County lines operations and the phenomenon of cuckooing are often mentioned in conjunction with each other but they are not mutually exclusive. Both issues have come to the fore in recent years and the consultation on the guidelines stressed the need to adapt them in order to address this.
What is a county lines operation?
County lines operations are where drug suppliers from the big cities to travel over ‘county lines’ to into smaller towns in order to supply those areas with drugs. The rationale being that there is less competition from local suppliers in the smaller towns meaning it is easier and potentially less dangerous to make money. It is said that drug suppliers from big cities often exploit teenagers and younger adults in their local area by pressuring them into becoming involved in county lines operations.
What is Cuckooing?
Cuckooing is a term for when a drug supplier or other offender infiltrate and then take over the home of a vulnerable person, often a drug user, and use the property as a base or outpost for their criminal enterprise. The term comes from the behaviour of the cuckoo bird who lay their eggs in the nests of other birds and when the larger cuckoo chick hatches, it takes over the nest to the detriment of the other chicks.
Cuckooing can happen as part of a county lines operation where a small town drug user is exploited by city based suppliers needing an outpost for their operation. Equally, it can happen in the cities themselves with premises being used for various reasons. For example, as a drug storage or cutting location or as a strong house where users can attend to collect their deals but where police or rival suppliers can’t easily gain access.
How have the drug sentencing guidelines changed in response to county lines gangs and cuckooing?
As previously mentioned, the guidelines contain a section that requires the consideration of any aggravating or mitigating features, which can result in an increased or decreased sentence for offenders. The guidelines now specifically mention that it is an aggravating feature to exploit children or vulnerable adults to assist in drug dealing activity, as is the act of exercising control over the home of another person for drug-related activity.
The guidelines have also been updated for the offence of ‘allowing premises to be used’. In the past, this offence has been used to punish the victims of cuckooing. The guidance now urges judges to consider whether the offender has been involved through intimidation or coercion and whether the offender’s vulneratibilty has been exploited when deciding on culpability.
Cyber enabled offending, including use of the dark web and encrypted phones and communications
As technology has improved over the last decade, it’s use in illegal activity has increased. Higher level drug suppliers have long used encrypted phones and communication networks to organise their enterprises. Equally, for years now drugs have been sold on the dark web which can only be accessed using a Tor which masks IP addresses. For this reason, the sentencing council have inserted the aggravating feature of the use of sophisticated methods or technologies in order to avoid or impede detection into their guidelines. This means suppliers convicted of an offence involving the use of encrypted communications or the dark web to facilitate drug supply may find themselves facing a longer sentence than they would previously have done.