A comprehensive package of revised sentencing guidelines for drugs offences that reflect a change in the nature of offending and additional offences in relation to psychoactive substances has been published today by the Sentencing Council following consultation.

Changes in offending include a rise in the exploitation of vulnerable people, an increase in drug purity and new drugs in the market.

For the first time, judges and magistrates in England and Wales will have updated sentencing guidelines for offences under the Misuse of Drugs Act (MDA) 1971 to reflect modern drug offending and new guidelines for offences created by the Psychoactive Substances Act (PSA) 2016 to bring clarity and transparency around the sentencing process for drug offences. The new guidelines, which will come into effect on 1 April 2021, update the guidelines published in 2012 and apply to adult offenders.

Research conducted by the Council in preparation for producing the guidelines indicated that there are disparities in sentence outcomes for some drug offences associated with ethnicity and sex. The Council has taken measures in the guidelines to address this, including drawing sentencers’ attention to evidence of sentencing disparities in specific offences as an integral part the sentencing process.

The Council is committed to investigating apparent disparity in sentencing outcomes further. As part of this work the Council has convened an internal working group to consider what further steps might be taken in this area and is in the process of commissioning a review of how its guidelines operate to help identify any areas for further work.

The MDA offences of importation, production and supply of controlled drugs carry the highest sentences – up to a statutory maximum of life imprisonment for Class A drugs (e.g. heroin/ecstasy/LSD) and a statutory maximum of 14 years for Class B drugs (e.g. amphetamines/cannabis/ketamine) based on quantity and the role of the offender.

New and more powerful drugs have also been brought onto the market over recent years, including various kinds of “Spice”, and synthetic opioids such as fentanyl and carfentanil. The new MDA guidelines provide for such drugs. In the assessment of harm, the quantity of some drugs has been updated to reflect the change in purity (ecstasy) and yield (cannabis) of the drugs since the 2012 guidelines.

Sentencing Council member Her Honour Judge Rebecca Crane said:

“Drug dealing is a serious crime, and the effects cut across all groups of people: from addicts whose lives can be destroyed, to their families and the community, to people forced to take part in the trade either through coercion or threats, some of whom are young and vulnerable.

“These new sentencing guidelines provide a clear sentencing framework for the courts. They cover all the main offences and provide an approach to sentencing offending involving any type of drug. They will ensure that victims, witnesses and the public will have clear information on how drug offences are sentenced.

“The Council has also taken this opportunity to include measures to address disparities that exist in the sentence outcomes of some drug offences associated with ethnicity. This is an important area of work for the Council and we continue to explore whether any further changes could be beneficial to guidelines to help address any disparities in sentencing outcomes.” 

The PSA offences are similar to those under the MDA 1971 and, for the offences of trafficking, supplying or producing illegal drugs, the same approach used to assess culpability for the MDA offences will be applied. Offences under PSA carry up to seven years in custody.

The main difference in sentencing between MDA and PSA offences is in relation to harm. Unlike MDA offences, there is no 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 guidelines provide an approach for sentencers to use in assessing harm of these wide-ranging substances.

Notes to editors

1. The list of drugs covered by the new MDA guidelines:

• Class A (Heroin, Cocaine, Ecstasy, MDMA, LSD) are treated as the most dangerous
• Class B (Amphetamine, Cannabis, Ketamine, Synthetic Cannabinoid Receptor Agonists _SCRAs)

The drugs available on the market change over time and many substances can vary hugely in strength. For these reasons not all substances were included in the list. Fentanyl and its variants are an example of this.

2. Changes to the 2012 list of relevant drugs include:

• the addition of MDMA, separate from ecstasy. This has been added as MDMA is now just as commonly used in forms such as powder rather than just tablet form.
• the addition of Synthetic Cannabinoid Receptor Agonists (SCRAs), in the list of relevant drugs. These drugs, commonly referred to as SPICE, are becoming increasingly common.
• amendments to the quantities of ecstasy within the guidelines. For example, in the importation, supply and production guidelines an offender 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 as evidence has shown that the average purity of ecstasy has increased. The current 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.

3. Table of drug quantities.

Harm table for Importation, Production and Supply

	New quantities	Previous quantities
Category 1	·         Ecstasy – 7,000 tablets	·         Ecstasy – 10,000 tablets
Category 2	·         Ecstasy – 1,300 tablets	·         Ecstasy – 2,000 tablets
Category 3	·         Ecstasy –200 tablets	·         Ecstasy – 300 tablets
Category 4	·         Ecstasy – 13 tablets	·         Ecstasy – 20 tablets

Harm table for Production/ Cultivation

	New quantities	Previous quantities
Category 1	·         Cannabis – operation capable of producing industrial quantities for commercial use	·         Cannabis – operation capable of producing industrial quantities for commercial use
Category 2	·         Cannabis – operation capable of producing significant quantities for commercial use	·         Cannabis – operation capable of producing significant quantities for commercial use
Category 3	·         Cannabis – 20 plants	·         Cannabis – 28 plants
Category 4	·         Cannabis – 7 plants	·         Cannabis – 9 plants

 Heroin, LSD, Ketamine and Amphetamines quantities remain as in the 2012 guideline and MDMA has been added for the first time. The quantities for these drugs are in the guidelines.

4. The Council also decided to “future proof” the guideline by agreeing to review the harm table every three years, looking at both the list of drugs which are included, and the quantities given.
5. The five guidelines under the Misuse of Drugs Act 1971 being revised are:

• section 3 (and Customs and Excise Management Act 1979 (section 170(2)) – fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug
• section 4(3) – supplying or offering to supply a controlled drug
• section 5(3) – possession of a controlled drug with intent to supply it to another (“PWITS”)
• section 4(2)(a) or (b) – production of a controlled drug
• section 6(2) – cultivation of a cannabis plant.

6. The new guidelines under PSA cover the following offences:

• section 4 – producing a psychoactive substance
• section 5 – supplying, or offering to supply, a psychoactive substance and section 7 – possession of a psychoactive substance with intent to supply
• section 8 – importing or exporting a psychoactive substance

7. The Sentencing Council recently carried out research into sentencing disparities based on ethnic and sex lines, and the new guidelines reflect this.
8. Data from the Crown Court Sentencing Survey (CCSS) were used for most of the analysis, but the data on offenders’ ethnicities were matched onto the data from the Ministry of Justice Court Proceedings Database.
9. Sentencing guidelines must be followed, unless the court is satisfied that it would be contrary to the interest of justice to do so. If a judge or magistrate believes that a guideline prevents the correct sentence from being given in an exceptional case, he or she can sentence outside of the guideline.
10. Guidelines set sentencing ranges within the maximum for the offence as set out in current legislation. The guidelines are intended to reflect current sentencing practice for these offences.
11. The Sentencing Council was established by Parliament to be an independent body, but accountable to Parliament for its work which is scrutinised by the Justice Select Committee. Justice Ministers are accountable to Parliament for the Sentencing Council’s effectiveness and efficiency, for its use of public funds and for protecting its independence. Judicial Council members are appointed by the Lord Chief Justice with the agreement of the Lord Chancellor. Non-judicial council members are appointed by the Lord Chancellor with the agreement of the Lord Chief Justice.

For more information, please contact Kathryn Montague, Sentencing Council Press Office, on 020 7071 5792 / 5788 / 07912301657 / Email