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Drug offences sentencing guidelines revised to reflect changes in modern offending

View profile for Duncan Phillips
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Since 1st April 2021, updated sentencing guidelines have come into effect for offences falling under the Misuse of Drugs Act 1971 and the Psychoactive Substances Act 2016. These guidelines will apply to all cases sentenced on or after this date.

Over recent years, new drugs have been brought onto the market, including Synthetic Cannabinoid Receptor Agonists (SCRAs), which include the drug commonly known as ‘Spice’. There has also been changes in offending, such as a rise in the exploitation of vulnerable people, an increase in drug purity and new drugs in the market.

The Sentencing Council revised the sentencing guidelines in order to account for these changes in the nature of drug offences, to cover additional offences which will fall under the fairly new Psychoactive Substances Act 2016, and to bring clarity and transparency around the sentencing process for drug offences.

What are the drug sentencing guidelines and how do they work?

The drug sentencing guideline is a document published by the Sentencing Council, which a judge will use as a guide when passing sentence for an offence. The guidelines place offenders into categories based on two aspects: culpability and harm.

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 level of harm is primarily based on the quantity of the drug.

Once the level of culpability and harm has been established, this is cross-referenced with the class of drug in question to reach a sentence starting point and range. Mitigating and aggravating factors are identified by the guidelines which should be taken into account in each case to determine where, in the range, the offence falls.

How have the drug sentencing guidelines changed?

Separate reference is now made to MDMA in powder form, as distinct from ecstasy tablets.

The quantity guidelines have been updated to reflect the change in purity (ecstasy) and yield (cannabis) of the drugs since the old guidelines were introduced in 2012.

For example, in the importation, supply and production guidelines an offender previously had to have at least 10,000 tablets of ecstasy to be in the highest category of harm. This has been reduced to 7,000 tablets. The previous guideline was based on an average purity of 100 mg of MDMA per ecstasy tablet, but evidence shows that purity has increased to 150mg per tablet.

What aggravating factors have been included in the new sentencing guidelines?

The new guidelines have introduced several new aggravating factors that could increase sentences for offenders who exploit children, use the home of a vulnerable person (so-called ‘cuckooing’), or running county lines in their offending. These were initially said to be examples which would help identify offenders in a leading role. However, it was recognised that these factors should be aggravating factors as offenders lower in the offending chain may also exploit vulnerable people or children in their offending.

As technology improves, its use in illegal activity increases. Encrypted phones and communication networks have been used to facilitate drug operations, as well as drugs being sold on the dark web. The Sentencing Council have included the aggravating factor of using sophisticated methods or technologies in order to avoid or impede detection.

What offences do the new guidelines cover under the Psychoactive Substances Act 2016?

Prior to the Act, substances that did not fall under the MDA or other legislation were legally available to purchase. This led to endemic use of drugs such as Spice in the homeless and prison communities.

The Act brought a blanket ban on any substance deemed to be ‘psychoactive’. Unlike MDA offences, there is no complete list in the PSA of psychoactive substances controlled under the act. Rather, a psychoactive substance is defined by its effect on the user, and the intention of the offender in supplying, importing or producing it.

The new guidelines contain explicit mention of SCRAs. The council refrained from numerically defining quantities and weights of such drugs and instead used descriptive words such as ‘very small’ or ‘large indicating commercial scale’ to determine the correct category for each offence.

The new guidelines cover the following offences:

  • Importing or exporting a psychoactive substance- a maximum sentence of 7 years imprisonment.
  • Possession of a psychoactive substance with intent to supply- a maximum sentence of 7 years imprisonment with a range from a Band B Fine.
  • Producing a psychoactive substance- a maximum sentence of 7 years imprisonment with a range from a Band B Fine.
  • Supplying, or offering to supply, a psychoactive substance/ Possession of a psychoactive substance with intent to supply- a maximum sentence of 7 years imprisonment with a range from a Band B Fine.

The future for the sentencing guidelines

The Council have decided to “future proof” the guidelines by agreeing to review the harm table every three years to look at the list of drugs that are included and the quantities given. This is an attempt to ensure the guidelines remain update to date with the ever evolving times.

Will I go to prison for being in possession of or selling drugs?

As the guidelines have only recently been introduced, it is too difficult at this stage to predict what will happen to overall sentencing lengths. However, it is a common expectation that new sentencing guidelines will increase custodial sentences for drug related offences in some cases.

With the help from our expert team at Stephensons, we will be able to assist and protect your best interest all stages of your case, with the aim of mitigating the impact that any changes may have on your case.

What should I do if I am accused or charged of a drug related offence?

If you are accused or charged with a drug related offence, due to the updated sentencing guidelines it is more important than ever that you seek specialist legal advice from the offset, including seeking representation at police station interviews, to ensure your best interests are protected.

Drug supply related offences are treated as very serious offences, hence why certain offences have a sentence of life imprisonment attached. We understand how daunting it may be to be accused of a drug supply related offence knowing the severity of the punishment at risk. We strongly advise that you contact our team of experienced solicitors as soon as possible in order for you to have well-informed guidance and expert representation in order to defend your case. At Stephensons, our solicitors have an extensive history of successful defending and reducing sentences of offences of this nature.

Contact Stephensons for expert assistance

If you are facing allegations or charges of drug related offences, our team are waiting and ready to hear from you. Please do not hesitate to call our specialist solicitors on 0161 696 6188 or complete our online enquiry form.

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