Plans to revise sentencing guidelines for drugs offences in England and Wales were published for consultation today by the Sentencing Council, following significant change in the nature of offending, the increased seriousness of the offences, emerging drugs and new offences in psychoactive substances.

The Council is also releasing today research conducted to support the guideline review that looks at the sentencing of three supply-related drug offences in the Crown Court between 2012 and 2015. The research considers the association between an offender’s sex and ethnicity and the type and length of sentence they received.

Revised sentencing guidelines for drug offences

The Council is proposing to revise five of the current drug offences guidelines, which came into force in 2012 and cover offences under the Misuse of Drugs Act (MDA) 1971 to bring them up to date with modern drug offending, and to introduce four guidelines for new offences created by the Psychoactive Substances Act (PSA) 2016.

The Council is inviting views from judges, magistrates and the public on the proposed changes. The consultation is open until 7 April 2020.

Launching the consultation, Sentencing Council Chairman Lord Justice Holroyde said;

“Drug offending affects a large cross-section of society; from people voluntarily involved in the trade including dealers and users, to families and the community who often have to deal with the aftermath, and it has to be taken seriously.

“The nature of offending is also changing and we are seeing more vulnerable people including children being exploited either through grooming or coercion. The proposed guidelines will provide guidance for courts and clear information for victims, witnesses and the public on how drug offenders are sentenced.”

The main changes being proposed for the current guidelines apply to the offences of importation/exportation, supply/possession with intent to supply, and production/cultivation of drugs created under the MDA 1971.

The proposed changes reflect the evolving nature of offending, including the rising exploitation of children and vulnerable people (so called “clean skins”) in county lines operations to transport drugs from city hubs to smaller towns and rural areas, and the increasing use of dedicated phone lines and the internet, including the dark web.

The draft guidelines introduce new culpability factors for offenders in a leading role in drug related activities, including:

• Exploitation of children and/or vulnerable persons to assist in drug-related activity
• Involving an innocent agent for importation or exportation of drugs
• Exercising control over the home of another person for the supply and production of drugs.

A less-common offence under the MDA 1971 is the offence of permitting your premises to be used for drug dealing or drug related activity. The revised guideline for this offence introduces a high culpability factor where a child or vulnerable person is used to deal drugs from their premises – a practice known as “cuckooing”. Offenders who are involved in drug related activity due to coercion or intimidation or whose vulnerability has been exploited will face lower sentence levels.

The new offences brought in by the PSA 2016 are similar to offences under the MDA 1971 and, for the offences of importation/exportation, supplying/possession with intent to supply, and production of drugs, the Council proposes to use the same approach to assess culpability as proposed for the MDA offences.

New and more powerful drugs are also being brought onto the market, including purer forms of existing drugs, various kinds of “Spice”, and synthetic opioids such as fentanyl and carfentanil. Some of these newer substances are covered by offences under the PSA 2016, for which there are currently no sentencing guidelines. The Council’s proposed guidelines would assist the courts in sentencing these offences.

Sex, ethnicity and sentencing of drug offences

To support the revision of the Council’s drug offences guidelines, the Council commissioned research that looked at the sentencing of three supply-related drug offences in the Crown Court between 2012 and 2015. The research considered the association between an offender’s sex and ethnicity and the type and length of sentence they received. It shows that, when taking into account the main sentencing factors for the three offences, the sex and ethnicity of offenders were associated with different sentencing outcomes.

• The odds of a male offender receiving an immediate custodial sentence for the three supply related drug offences were 2.4 times the size of the odds for a female offender, and male offenders received sentences on average 14 per cent longer than women.
• For Asian offenders and those in the “Other” ethnic group (which included offenders who were not Asian, Black or White), the odds of receiving an immediate custodial sentence for the three drug offences were 1.5 times the size of the odds for White offenders. The odds of a Black offender receiving an immediate custodial sentence were 1.4 times the size of the odds for a White offender.
• Asian offenders received custodial sentences that were on average 4 per cent longer than the sentences imposed for White offenders. No differences were found when comparing custodial sentence lengths between other ethnic groups.

The analysis does not set out to identify any reasons for the disparities in sentencing outcomes. The Council is, however, concerned that the sentencing guidelines should not contribute to or exacerbate disparities and is asking in its consultation whether any of the factors in the draft drug offences guidelines, or the language used, could impact disproportionately on different social groups.

Lord Justice Holroyde, Chairman of the Sentencing Council, said:

“The sentencing guidelines are intended to apply equally to all offenders, irrespective of their sex or ethnicity. In drafting the guidelines the Council always takes great care to use language that is clear and unambiguous and will ensure the equal application of sentencing factors to all social groups.

“We do recognise, however, that there is potential for draft guidelines to be interpreted in different ways. The Council is seeking views on whether any of the factors in the draft drug offences guidelines could be interpreted in ways that could lead to discrimination against particular groups, and we are asking whether there are any other equality or diversity issues the guidelines have not considered.”

A summary of the key findings is available alongside this press notice.

Notes to editors

1. The consultation will run for 12 weeks
2. 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.

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
• section 9 – possession of a psychoactive substance in a custodial institution

3. 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.
4. 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.
5. 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.
6. 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
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