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Updates to Sentencing Guidelines for Drugs Offences 2021 by Ella Embleton

Wed 24th Mar 2021

Introduction

Earlier this year, the Sentencing Council published revised sentencing guidelines for offences falling under the Misuse of Drugs Act 1971 and new guidelines for offences falling under the Psychoactive Substances Act 2016. The updated guidelines come into effect from 1st April 2021 and apply to all adult offenders.

The rationale behind the new guidelines is to account for changes in the nature of drugs offences including an increase in the exploitation of vulnerable people, and to cover those offences which fall under the relatively new Psychoactive Substances Act 2016.

All guidelines now list MDMA and Synthetic cannabinoid receptor agonists (for example ‘spice’).

For the purposes of this article, only the new guidelines and the more commonly current guidelines which have been amended will be addressed. Please go to the Sentencing Council website for all changes.

The new guidelines introduced for offences under the Psychoactive Substances Act 2016 include:

The changes to existing guidelines are outlined in turn below.

Production of a Controlled Drug/ Cultivation of Cannabis

In the previous guidelines, this simply addressed the production of a controlled drug, whereas the new guidance makes specific reference to the cultivation of cannabis.

For cultivation of cannabis cases, the maximum sentence is 14 years’ custody with a range starting from a Band A fine – 8 years’ custody.

The overall range under the old guidelines for each ‘Class’ have shifted slightly.  For Class A, the range now specifies a starting point of a High Level Community Order – 16 years’ custody, compared to the pervious range which didn’t state the level of Community Order. The range for Class B is now a Band B fine – 10 years’ custody, thus providing a clearly defined starting point. Class C now ranges from a Band A fine – 8 years’ custody, again giving a more distinct range. Practitioners may be pleased to note that it is only the overall range which has changed under the new guidelines, the ranges in each category remain as before.

In addition to the changes to range, new aggravating features have been set out and are listed as follows:

        • 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;
        • Exposure of drug user to the risk of serious harm over and above that expected by the user, for example, through the method of production or subsequent adulteration of the drug;
        • Exposure of those involved in drug production/cultivation to the risk of serious harm, for example through method of production/cultivation;
        • Exposure of third parties to the risk of serious harm, for example, through the location of the drug-related activity;
        • Use of violence (where not charged as separate offence or taken into account at step one);
        • Offending took place in prison (unless already taken into consideration at step 1);
        • Use of sophisticated methods or technologies in order to avoid or impede detection.

It should also be noted, that low purity is no longer considered as a mitigating factor.

Possession of a Controlled Drug

The slight change to these guidelines is the addition of the quantity of drug being a relevant mitigating or aggravating factor, however this is dependent on the purity and potency of the drug. Also of note is the removal of ‘Charged as importation of a very small amount’ which is now appropriately captured under the amended guidance for ‘Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug’.

Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another

The ranges for these offences have marginally changed in that the starting point for each range is specifically outlined. Class A now specifically starts as a High Level Community Order – 16 years’ custody. The range for Class B is now Band B fine – 10 years’ custody, and for Class C from Band A – 8 years’ custody.

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

Arguably it is this guideline which has seen the most drastic changes, which is assumed to account for cases whereby a defendant may pass through customs with a small quantity of drugs possibly for personal use.

For those drugs classified as Class A, the range is now between a Band A fine – 16 years’ custody compared to the old guidelines which ranged from 3 years 6 months’ – 16 years’ custody. For Class B drugs, the range is now from Discharge – 10 years’ custody in comparison to 12 weeks’ – 10 years’ custody. The range for Class C has been amended from a Community order – 8 years’ custody, to Discharge – 8 years’ custody.

Summary

As stated at the outset, this article is only intended to cover the substantial changes to the guidance and to highlight how these changes reflect the change in offending patterns for drug offences. It will be useful for practitioners to familiarise themselves with these changes prior to them coming into effect from 1st April 2021.

Ella Embleton
Pupil Barrister
Broadway House
24th March 2021

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