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Revised Drugs Sentencing Guidelines from the Sentencing Council – clear reminder to Sentencers of racial disparity in sentences

Revised Drugs Sentencing Guidelines from the Sentencing Council

The sentencing council published its revised sentencing guidelines relating to drug sentencing on 27th January 2021. This new guidance applies to the existing drug sentencing guidelines. This revision was made in view of legislative changes and considering how drug related offending has changed and increased in severity, including the prevalence of CCE and recognition of racial disparity in sentencing. These new guidelines come into effect on 1 April 2021.

Details

The changes directly tackle the increasing prevalence of drug related offending which involves the exploitation of vulnerable people. This exploitation can take various forms, one of which is ‘cuckooing’, which involves the use of a vulnerable person’s home for offending. Until these guidelines were introduced, the leading case on sentencing offences involving cuckooing was Regina v Richard Ajayi, Kai Limby [2017] EWCA 1011 (Crim). The Court of Appeal considered that where an offender organises an operation from the metropolitan centre, rather than being ‘hands-on’ locally, they would fall within the “leading role” category in the sentencing guidelines. Another offender, engaged locally enforcing and managing the drugs supply operation would also fall within the “leading role” category. With cuckooing in particular, those who are involved in taking over the premises would fall into the “significant role” in the sentencing guidelines. Every case would turn on its own facts and the judge would need to consider all the facts.

The new sentencing guidelines address this differently by introducing new aggravating factors in place of the ‘leading role assessment’.  Thus, ‘Exercising control over the home of another person for drug-related activity’ and ‘Targeting of any premises where children or other vulnerable persons are likely to be present’ have been introduced as aggravating features to offences such as supplying or offering to supply a controlled drug and possession of a controlled drug with intent to supply it to another, production of a controlled drug and cultivation of cannabis plant. How this will affect the lengths and kinds of sentences imposed is yet to be seen.

Further aggravating features have been added to deal specifically with child criminal exploitation offences.  These offences have become increasingly prevalent with the rise of county-lines drug trafficking and other such operations. The new aggravating features in question are:

  • ‘Exploitation of children and/or vulnerable persons to assist in drug-related activity’ and
  • ‘Participates in the exploitation of a child or vulnerable person including one who is also involved in the drugs operation’.

The new guidelines also attempt to tackle racial disparity in sentencing. For example, where possession with intent to supply controlled substances offences are concerned, there is now a clear reminder that ‘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.’ This can be found within the guidelines for the individual offences under step 2 – starting point and category range.

Commentary

This new guidance covers the ever-prevalent offences involving some form of child criminal exploitation. This is reflected in the addition of new aggravating features.

It can be expected that offenders being sentenced in relation to child criminal exploitation offences can expect to receive a greater sentence under these new sentencing guidelines. The addition of these aggravating features is arguably a much clearer framework for ensuring that exploitation is accounted for in sentence.

These guidelines raise the profile of child criminal exploitation further.  Hopefully this will increase decision makers’ awareness of this growing issue and, in turn, mean that more children who become mixed up in drug offences as a result of some form of exploitation are treated as victims rather than perpetrators.

See also the Sentencing Council’s press release on this revised changes.

Written by Lady-Gene Waszkewitz, Barrister, 25 Bedford Row