Updated Guidelines for Drugs offences – In force from 1st April 2021.

From 1st April 2021, the updated sentencing council guidelines in respect of drugs offences come into force. The new guidelines, although largely the same in sentencing lengths, expand the guidelines to cover new substances, vary existing quantity boundaries, address roles relevant to financial advantage and give clearer guidance on how to approach sentencing in situations involving exploitation. The guidelines also take a step towards addressing a sentencing imbalance ‘associated with ethnicity’ . In order to consider the significant changes, it is helpful to take a look at the guidelines for the most common offence of possession with intent to supply, although the guidelines are varied across the different offences under the Misuse of Drugs Act 1981 (MDA).

New substances

The introduction of the Psychoactive Substances Act 2016 (PSA) and the prevalence of drugs such as ‘spice’ being introduced to the market have created a lacuna in the existing sentencing guidelines. Therefore, the new guidelines seek to provide some guidance on how to approach sentencing for these less well-known substances both by adding them to the existing guideline and by creating new guidance specifically for those under the PSA. Given the wide range of potency in respect of many of these substances, they have not been codified with a definitive quantity or weight to determine harm in the same way as other drugs. The pre-existing guideline categorises the ‘Synthetic cannabinoid receptor agonists (for example ‘spice’)’ as the following;

Category 1 – very large quantity indicative of an industrial scale

Category 2 – large quantity indicative of a commercial scale

Category 3 – smaller quantity between categories 2 and 4

category 4 - very small quantity

However, one matter of note that will need to be addressed is the scientific issue of potency. The guideline makes clear that drugs not defined by quantity such as ‘fentanyl or its agonists’ will require expert evidence to assist the judiciary in determining its potency as “in cases of particularly potent drugs, even very small quantities may be held to be equivalent to the large quantities of drugs listed” .

By comparison, the supply of drugs pursuant to the PSA now has its own definitive guideline where the categorisation of harm is not based solely on quantity but by circumstances of supply :

Category 1 – Large quantity indicative of a commercial-scale of operation or supply in a custodial institution

Category 2 – Supply directly to users

Category 3 – Very small quantity

In addition to these categories, the guidelines make clear that where there is evidence on the effects of the substance, the Court may move from the starting point both within the category range or alternatively to place the offence within a higher or lower category. The introduction of these guidelines could be considered a helpful starting block, but the ambiguity, broad discretion and lack of quantification may give rise to liberal interpretation.

Weights and category boundaries

Owing to an increase in the purity of some substances the sentencing council have amended the quantities in respect of harm caused. One such example being strains of cannabis, such as ‘skunk’. In particular, ecstasy previously had an average purity of 100mg of MDMA per tablet, but this has increased to 150mg. Accordingly, an increased potency equates to a reduction in the number of tablets required in each category. The prevalence of MDMA in powder form has resulted in its own independent inclusion, separate to the ecstasy tablet. These amendments are displayed alongside the previous guidelines for comparison in the tables below:

Financial advantage

The Court has long been facing the difficulty of applying the existing guidelines where a Defendant is ‘motivated by financial or other advantage’ but otherwise meets the criteria of a lesser role. That financial gain, even where it amounts to a discount on drugs for personal use or a nominal amount in comparison to the value of the drugs has the effect of tipping the offender into the category of significant role, increasing the starting point to an almost inevitable immediate custodial sentence. The somewhat overused cliché of ‘guidelines not tramlines’ is bounded around in courts up and down the country in an attempt to correctly categorise an offender who, but for receiving £100 to do the dirty work or a couple of freebies, would otherwise be categorised as having a lesser role. It will no longer be necessary to straddle the categories as the sentencing council have clarified the relationship between financial gain and the roles;

• Leading role: “Expectation of substantial financial or other advantage”
• Significant role: “Expectation of significant financial or other advantage (save where this advantage is limited to meeting the offender’s own habit), whether or not operating alone”
• Lesser role: “Expectation of limited, if any, financial or other advantage (including meeting the offender’s own habit)”

Whilst there is no guidance on what amounts to significant, it seems that the street runners or those who are having their premises overrun, so called ‘cuckooing’ will now have a definitive submission on culpability. In all likelihood, the use of the word ‘limited’ in lesser role will assist in categorising couriers, mere custodians or those who supply/share to close friends for minimal benefit.

Incorporation of vulnerability into sentencing

Following the rise in cases concerning modern slavery and the use of young and/or vulnerable people as runners either in a locality or in county lines operations, it was perhaps inevitable that formal guidance would be needed to ensure a consistent approach to sentencing, both for those on the bottom rung of the ladder and for those responsible. Whilst this vulnerability will in part be met by the definitions surrounding financial advantage, the statutory mitigating features now specifically include provision where the “offender’s vulnerability was exploited”, which will assist for those falling short of the defence of modern slavery.

The position in respect of exploitation by those higher up the chain has also been incorporated into the statutory aggravating factors “Offender used or permitted a person under 18 to deliver a controlled drug to a third person”. As well as the addition of other aggravating features:

• Exploitation of children and/or vulnerable persons to assist in drug-related activity
• Exercising control over the home of another person for drug-related activity

The relative affect of these aggravating and mitigating features will likely see a reduction in sentence for those being exploited whilst simultaneously permitting an increased sentence for anyone demonstrably exploiting others. Phone material will likely play a key role in establishing which side of the line a Defendant falls.

Ethnicity

2020 was a year for the world to take stock of its approach to racism, diversity and inherent privilege that is systemically built into every aspect of society. It is therefore reassuring to see that not only has the consultation process identified some disparities in sentence based on ethnicity but that the sentencing council have gone as far as to highlight this in the updated guidelines. It would of course be completely discriminatory to have a sentence which was directly affected by race, there is no suggestion here that an offender should receive some sort of increase/decrease based on such characteristic. However, bringing the disparity in sentencing to the forefront of the mind will no doubt have the effect of at least triggering a stock take, perhaps of the social inequalities or in contrast the unused advantages to that particular defendant in the dock. The wording of the sentencing council directs the sentencer to the Equal Treatment Bench Book:

“Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that a higher proportion of Black, Asian and Other ethnicity offenders receive an immediate custodial sentence than White offenders and that for Asian offenders custodial sentence lengths have on average been longer than for White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 paragraphs 123 to 129 of the Equal Treatment Bench Book.”

Conclusion

In order to ensure sentencing practices do not become outdated, the sentencing council have committed to reviewing the harm category both in terms of the drugs included and the quantities involved every three years. The evolving culture of drug supply has seen an increase in young defendants and those who are vulnerable. The sentencing update evidently seeks to reflect in the sentence such exploitation by way of leniency for the exploited and potential for increased sentences for the exploiters. What remains to be seen is how the Courts will interpret the vocabulary used in this update such as ‘substantial, significant and limited’? What is the distinction between a ‘small quantity’ and a ‘very small quantity’? With some unspecified boundaries, there will undoubtedly be a period of liberal interpretation until the Court of Appeal provide further guidance. As with many offences, drugs cases continue to be fact specific so whilst the update to the guidelines is largely aimed at keeping up with the times, perhaps we shouldn’t rush to hang up the ‘guidelines not tramlines’ submission just yet.