BLOG: Old habits die hard: new Drug Sentencing Guidelines address vulnerable offenders but may not go far enough

Vanessa Reid discusses upcoming changes to the sentencing guidelines for drug-related offences intended to reflect and recognise the vulnerability of many people involved in the supply of illegal drugs. 

Introduction

On 27th January 2021, the Sentencing Council (“Council”) published a revised set of guidelines for drug-related offences. These new guidelines, which come into effect on 1st April 2021, update the guidelines previously published in 2012 and apply to adult offenders. These updated guidelines were based on a comprehensive Drug Offences Consultation (“Consultation”) undertaken by the Sentencing Council in January 2020.

Among other changes, the new guidelines attempt to address growing concerns about the exploitation of vulnerable people within the illegal drug trade. The Consultation notes the continued rise in “county lines” dealing in which drug orders are transported from city hubs to smaller towns and rural areas, and the associated increase in violence and exploitation of children and vulnerable adults.

A 2020 Independent Review of drugs by Dame Carol Black notes that “Young people and children have been pulled into drugs supply on an alarming scale, especially at the most violent end of the market” and that “Children displaying vulnerabilities, such as poverty, family breakdown, becoming known to social workers, looked-after status and exclusion from school are targeted.” Many people who are first recruited into the drug trade as children will remain involved as young adults and therefore fall under the adult sentencing guidelines once arrested and prosecuted. Other adult victims of exploitation by county lines operations are often people with drug addiction and mental health issues.

The new guidelines implement a number of changes intended to reflect both the seriousness of such offending and the diminished culpability of those offenders who are themselves often vulnerable and exploited.

“Significant” Changes to Culpability Factors

A significant change implemented by the new guidelines is an update to the factors used to determine the level of culpability for offenders convicted of the most serious offences under the Misuse of Drugs Act (MDA) 1971, namely importation/exportation, supply/possession with intent to supply (PWITS), and production/cultivation. These same changes will apply to the new guidelines applicable to parallel offences under the Psychoactive Substances Act (PSA) 2016.

As practitioners will be aware, the current guidelines’ approach to culpability for these offences is based on the role of the offender, which is deemed leading, significant, or lesser depending on a set of culpability factors. The differences between these categories can have enormous consequences for defendants. For example, a Category 3 offence for street dealing of Class A drugs will have a starting point of 3 years’ custody for a lesser role, 4 years 6 months’ custody for a significant role, and 8 years 6 months’ custody for a leading role. The new guidelines make some sensible changes to these culpability factors based on issues which commonly arise in practice.

Leading role: new ‘county lines’ factors

The Council has added new culpability factors to the “leading role” category intended to address particularly serious conduct prevalent in county lines cases, principally the systematic exploitation of young and vulnerable people and the practice known as “cuckooing”—namely occupying the home of a vulnerable individual to use as a base for selling drugs. A similar factor has been added to the importation guideline to reflect the use of a vehicle belonging to an otherwise innocent third party to transport drugs. These new factors are as follows:

• Exploitation of children and/or vulnerable persons to assist in drug-related activity
• Involving an innocent agent in the commission of the offence (importation guideline only)
• Exercising control over the home of another person for drug-related activity (supply and production guidelines)

 Whilst these new factors are intended to reflect the Council’s view that these types of activities are serious aspects of offending, and therefore merit inclusion in the leading role category, they may create some difficulties in practice. For example, a defendant could be a relatively low-level participant in a large-scale county lines operation—and potentially vulnerable or exploited themselves—but also in some way involved in the recruitment of other children or vulnerable adults. Nonetheless, these factors will help to more clearly distinguish and define the most culpable types of conduct in these cases.

Significant role: expectation of significant financial or other advantage

A change to the “financial advantage” culpability factor may have a major impact on how numerous defendants are categorised. The previous guidelines include “motivated by financial or other advantage, whether or not operating alone” as a significant role culpability factor. As the Council rightly recognises, this factor “applies to nearly all cases, as very nearly all drug offending is driven by some level of financial motive, whether that be to obtain money, free drugs or to pay off a drug debt” (Consultation at 13). There is evidence that in some low culpability cases where there was a financial motive, sentencers were disregarding this factor or trying to work around it, often in inconsistent ways (Consultation at 13).

The new guidelines have therefore been amended to reflect what is already happening in practice, namely that offenders who have a very small or limited financial motive should be placed in the lesser role category while significant role should be reserved for those receiving a higher level of financial or other advantage. The revised factor for significant role is therefore:

• Expectation of significant financial or other advantage (save where this advantage is limited to meeting the offender’s own habit), whether or not operating alone

Lesser role: limited or no financial advantage and exploited offenders

In keeping with the change to the “financial advantage” factor set out above, a new factor has been added to the lesser role category as follows:

• Expectation of limited, if any, financial or other advantage (including meeting the offender’s own habit)

The Sentencing Council has explicitly recognised that changes in the drug trade have been accompanied by increased violence and exploitation of vulnerable children and adults. The Council considered whether the existing lesser role factors adequately covered offenders who have themselves been exploited, including by the county lines type activities now added to the leading role category. These factors are:

• Engaged by pressure, coercion, intimidation
• Involvement through naivety/exploitation 

The Council concluded that these factors were sufficient, and they were not amended. However, it is hoped that sentencers will appreciate that these factors are intended to capture the involvement through exploitation of both children and vulnerable adults that is now recognised as commonplace and will therefore correctly place those offenders into a lesser role category. This is particularly important given the higher bar required for adults to establish a defence under s.45 of the Modern Slavery Act.

Sentencers should be reminded that such exploitation of both adults and children is widespread. They should not make habitual cynicism and disbelief their default stance towards defendants’ accounts of involvement with the drug trade through pressure, coercion, and intimidation.

Importation offences and drug mules

The previous guideline for importation offences was specifically intended to change sentencing practices to reduce the sentences for so-called “drug mules”—people who are often victims of human trafficking used to ferry small quantities of drugs across international borders. The new guidelines do not further reduce these sentences but do attempt to improve clarity and consistency in this area.

The previous guideline for importation offences did not give sentencing levels for Category 4 harm (i.e., very small quantities of drugs), but instead referred sentencers to other guidelines (for supply and possession) which referred to importation of a small quantity of drugs as an aggravating factor. This approach was not transparent and was confusing to sentencers. 

The Council has therefore set out the relevant sentence levels clearly by including sentencing ranges for Category 4 importation offences in the importation offences guideline itself. For Class A drugs, the starting points for Category 4 importation offences will be a low-level community order for a lesser role, 3 years’ custody for a significant role, and 5 years’ custody for a leading role. This sharp delineation in starting points between lesser role and significant role offences in this category only further highlights the importance of the new changes to the culpability factors discussed above.

“Cuckooing”: new culpability factors

The practice of “cuckooing”—occupying the home of a vulnerable individual to use as a base for selling drugs—has become of increasing concern with the rise of county lines drug offences. Dame Carol Black’s review notes that “Adult victims of exploitation by county lines are predominantly people with drug addiction and mental health issues. They will often be ‘cuckooed’, whereby their residences are taken over as a base for preparing and dealing drugs.”

The new guidelines introduce changes to the culpability factors for the offence of permitting premises to be used for drug-related activity which are intended to reflect both the seriousness of cuckooing-type offending and to recognise the vulnerability of those who come under pressure to permit drug-related activity on their premises.

The primary change to the guideline is to bring the previous step 3 mitigation factor of “Offender involvement due to pressure, intimidation or coercion falling short of duress” into step 1, which will enable sentencers to give this factor greater weight. The Council has also added an additional high culpability factor aimed at situations where a child or vulnerable person is being used to deal drugs from the premises.

The new culpability factors for this offence are as follows:

Higher culpability:

• Participates in the exploitation of a child or vulnerable person including one who is also involved in the drugs operation.

Lower culpability:

• Permits use for limited or no financial gain
• No active role in drug activity taking place
• Involved due to intimidation or coercion
• Offender’s vulnerability has been exploited

It is hoped that these new factors may help sentencers more accurately reflect the genuine level of culpability and involvement of people who allow their premises to be used for drug activity. Nonetheless, the new sentencing guidelines may not go far enough to reflect the vulnerability of individuals who are subject to cuckooing.

For example, the new guideline retains a starting point of 36 weeks’ custody for a Class A drugs offence of Category 1 harm (regular drug-related activity and/or premises used for drug activity over a long period or higher quantity of drugs) and Culpability B (the lower culpability factors set out above). This means that a person who allows their premises to be used for drug trade entirely through intimidation and coercion and has no active role in the drug activity and no financial gain will still be subject to a starting point of 36 weeks’ custody if they allow their premises to be used on a regular basis or for a high quantity of drugs. This would appear to fly in the face of any genuine concerns about the well-being of the very vulnerable people who are being exploited by the practice of cuckooing.

Conclusion

The new sentencing guidelines for drug-related offences make great strides in acknowledging and reflecting the vulnerability of many offenders who become involved in the drug trade. It is clear that there is increasing awareness that youths and vulnerable adults are being regularly exploited and subjected to violence, coercion, and intimidation which significantly mitigates their levels of culpability. However, in many ways the new guidelines do not go far enough in recognising that many people involved in the drug trade do not fall neatly into the role of either victim or perpetrator. The violence and exploitation involved in the illegal drug market is driven by complex factors, and many vulnerable offenders may themselves become involved in recruiting or involving other vulnerable people. Nonetheless, the recognition by the Sentencing Council of the various ways in which vulnerable people are exploited by the drug trade is very welcome, and it is hoped that the impact of these changes will start to be felt as soon as the new guidelines come into effect. 

Vanessa Reid is a junior tenant at Carmelite Chambers. She frequently represents vulnerable defendants charged with serious drug-related offences and is currently instructed in multiple Crown Court cases in which defendants charged with drug trafficking offences have put forward a Modern Slavery defence. She recently secured an out-of-court disposal for a vulnerable youth client charged with possession with intent to supply by making representations that the prosecution was not in the public interest.