Public consultation on drug offences guideline launched by the sentencing council

Drugs and Alcohol Today

ISSN: 1745-9265

Article publication date: 17 June 2011

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Citation

(2011), "Public consultation on drug offences guideline launched by the sentencing council", Drugs and Alcohol Today, Vol. 11 No. 2. https://doi.org/10.1108/dat.2011.54411baa.003

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Emerald Group Publishing Limited

Copyright © 2011, Emerald Group Publishing Limited


Public consultation on drug offences guideline launched by the sentencing council

Article Type: Legal Eye From: Drugs and Alcohol Today, Volume 11, Issue 2

Niamh Eastwood, Head of Legal Services, Release.

The Sentencing Council has launched a public consultation[1] on a draft guideline for sentencing drug offences. The guideline will assist the Crown Court and Magistrates’ Court in sentencing cases which deal with drug offences, with the aim to encourage consistency in sentencing. The Sentencing Council replaced the Sentencing Guidelines Council (SGC) and the Sentencing Advisory Panel (SAP) in April 2010. The SAP launched a detailed consultation into sentencing guidelines for drug offences in 2009 and published their final advice early 2010, however, this advice was never adopted by the SGC because of the establishment of the new Sentencing Council.

The consultation paper indicates that the Sentencing Council is taking a similar approach to its predecessor in respect of any guidelines for the Crown Court, in that, the role of the offender will play a significant part in the determination of the seriousness of the offence and the appropriate sentence. The approach adopted by the Council in the proposed guidelines is to identify whether an offender had a “leading role”; a “significant role”; or a “subordinate role”[2].

In light of this rationale, the Sentencing Council identifies that the current sentencing of “drug mules” is “disproportionate to the levels of culpability and harm caused”[3]. The Council specifically supports the SAP advice that those considered to be “drug mules” should be considered as having played a subordinate role in the drugs trade. If this position is adopted into the Council’s guidelines this will result in significantly lower custodial sentences for those falling within this category.

The seriousness of the offence will be determined not only by the role of the offender but also the quantity of drug involved. These factors will be used to establish the culpability (role) of the offender and the harm (quantity) caused. The Council supports SAP view that the street value of the drug seized in not helpful in determining the seriousness of the offence. However, in respect of the purity of a drug seized the Council appear to be inclined to depart from SAP’s advice on this factor. SAP’s advice had identified that, like street value, purity is not a helpful factor in determining the seriousness of the offence but rather it would be one of many factors that would indicate the role of the offender. The Council, on the other hand, has sought views on whether to treat purity as an indicator of harm and, therefore, central to the offence, or whether it should be relevant to aggravating or mitigating the offence.

Like SAP’s previous guidance, the Council fails to distinguish between “social supply” and other forms of low level dealing, as such anyone caught in this group will be considered to have a subordinate role. Release in its response to the Sentencing Council will be advocating for the introduction of a fourth role, that of social supply, for the purposes of supply and possession with intent to supply offences. The Council proposes that the starting point for supply offences involving someone considered to be in a subordinate role is 26 weeks in custody. Considering the nature of social supply and the low level of culpability and harm involved, as identified by the Sentencing Council in the consultation, this would appear to be a disproportionate response.

If you are interested in reading the consultation paper or wish to contribute go to: www.sentencingcouncil.judiciary.gov.uk/sentencing/consultations-current.htm

New case law on sentencing guidance for cannabis cultivation

Whilst the Sentencing Council consultation paper outlines its proposals in respect of sentencing for offences involving cannabis cultivation, a Court of Appeal case has provided some definitive guidance in such cases until the Council issues its’ advice. Interestingly, the Council has moved away from quantity as a determinant factor in cultivation cases (unlike for other offences) and has indicated that harm should be determined on the scale and sophistication of the operation. The case of Auton[4] does not follow such reason.

The case of Auton involves four separate defendants; all involved in varying types of cannabis cultivation operations although not considered to be of an industrial level. The Court of Appeal judgement was concerned with providing sentencing guidelines in cases, which involved a reasonable amount of sophistication in respect of the operation. In the four cases before the Court the yield was around 1 kg of cannabis. Lord Justice Hughes stated that the methods adopted were “likely to include the essential features of hydroponic cultivation and intensive artificial lighting”[5]. The judgement stated that people who grow cannabis, even where for their own use, do so to avoid “the risk of being caught on the open market and making available to himself large quantities of strong cannabis”[skunk]. “The total drug available in the community is appreciably increased by these operations”[6]. So rather than identifying that avoidance of the criminal and illegal market as being a mitigating factor the Court considered this increased harm.

The Court held that even where the cannabis grown is for the “exclusive use” of the defendant the threshold for custody is passed. The Court went on to say that to provide a distinction between “social supply” and other types of supply was of little use in determining the sentence, stating that “it makes good sense for a drug supplier to deal with friends whom he can trust rather than with strangers he cannot”[7]. Lord Justice Hughes stated that the only relevant distinction in sentencing would be supply for profit, as opposed to all other types of supply and that it would not be useful to differ between the possible categories.

In providing advice to the Courts on sentencing, Lord Justice Hughes said that in cases involving industrial production then the guidelines in R v. Xu[8] should be adopted[9]. The following guidelines should be adopted for those falling short of that level:

  • Where there is no element of supply the sentence range is likely to be between nine and 18 months, depending on size of operation and the defendant’s personal circumstances.

  • Where there is no evidence of commercial supply for profit but there is supply to others the range is likely to be 18 months to three years – operation and personal circumstances again relevant.

  • Where the operation is a commercial one but falls below the industrial operation outlined in Xu the range will be three to six years.

Certainly, many in the drugs field have been surprised at the severity of the sentencing guidelines produced by the Court. It will be interesting to see if the final guidelines produced by the Sentencing Council agree with their lordships judgement.

ACMD recommends Naloxone be given to prisoners on release

The Advisory Council on the Misuse of Drugs (ACMD) met on 12 April 2011. Amongst the items on the agenda was naloxone, the short acting opioid antagonist, which when given to those who are overdosing from heroin can reverse the effects of the overdose.

At the meeting the ACMD recommended that the Government should provide all prisoners on release with naloxone. This is a very sensible and welcomed recommendation considering that those just released from prison are 7.5 times more likely to die from a heroin overdose than the rest of the population. The risk is created when people leave prison and believe that they can consume the same level of heroin that they did before they were incarcerated. However, their tolerance to the drug will be much reduced either because they will have been taken an alternative substance in prison or will not have used as much or at all.

One of the reasons for the recommendation is that there are currently legal hurdles to overcome in respect of dispensing naloxone as it is a “prescription only drug”. This means that doctors can only dispense it to those who would not be able to use it on themselves; however, there is no legal barrier to the administering of the drug to save lives, so maybe this hurdle is not so insurmountable.

Polish MPs vote to decriminalise possession of all drugs

On 1 April 2011, Polish MPs voted in favour of amending the country’s drug legislation which would see the possession of small amounts of drugs decriminalised. Essentially, the new law would prevent public prosecutors from prosecuting anyone caught in possession of a small amount of an illegal substance for the first time. Whilst quite limited in its application, it is positive to see the development of progressive drug policies in countries of the Former Soviet Union. In January 2010, the Czech Republic decriminalised possession of controlled drugs.

The amendment to the legislation still needs to go before the Polish Senate and then it will have to be approved by the President.

Notes

The consultation paper takes two forms, one is a public consultation and the other a professional consultation aimed at those working within the criminal justice system (Sentencing Council, 2011).

The consultation paper takes two forms, one is a public consultation and the other a professional consultation aimed at those working within the criminal justice system (Sentencing Council, 2011, p. 11).

The consultation paper takes two forms, one is a public consultation and the other a professional consultation aimed at those working within the criminal justice system (Sentencing Council, 2011) – professional consultation, p. 4.

R v. (1) John Auton (2) Lawrence Hindle (3) Glen Vincent (4) Stephen Willis, (2011) EWCA Crim 76.

R v. (1) John Auton (2) Lawrence Hindle (3) Glen Vincent (4) Stephen Willis, (2011) EWCA Crim 76 at paragraph 2.

R v. (1) John Auton (2) Lawrence Hindle (3) Glen Vincent (4) Stephen Willis, (2011) EWCA Crim 76 at paragraph 5.

R v. (1) John Auton (2) Lawrence Hindle (3) Glen Vincent (4) Stephen Willis, (2011) EWCA Crim 76 at paragraph 7.

R v. Xu (2007) EWCA Crim 3129.

The Court of Appeal in Xu held that the starting point for sentences in cases of large-scale cannabis cultivation would be three years if they acted as a gardener; three to seven years if they acted as a manager and higher sentences where they controlled a large number of such operations.

References

Sentencing Council (2011), “Drug offences guideline”, available at: http://sentencingcouncil.judiciary.gov.uk/sentencing/consultations-current.htm

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