New Guidance for Determining Defendants’ Roles in PWITS Cases: R v Elis Kola [2024] EWCA Crim 1656

Overview

Luna Spada considers the recent decision of the Court of Appeal in R v Elis Kola [2024] EWCA Crim 1656 and its potential implications on the sentencing exercise. The issue for the court was the proper determination of the defendant’s culpability as a County Lines courier of Class A drugs.

The Facts

On 9 March 2023, Kola was found sitting in a white Vauxhall parked in a Cambridge car park, an area notorious for drug activity. Officers who had been observing the vehicle noted that Kola was using a smartphone when they approached. Upon being questioned, Kola immediately admitted there were drugs in the vehicle. A search revealed 13.24 grams of cocaine, cash (£180 and €10), and a phone that, upon inspection, showed no messages linked to drug supply but which continued to ring during the search. Kola was around 150 miles from his home address in York.

At trial, Kola asserted that the cocaine was for personal use. The jury disagreed, convicting him based on expert evidence regarding the packaging and quantity of drugs which suggested street dealing.

The Sentence

The sentencing judge determined that Kola had played a significant role in the supply operation. In doing so he had regard to the fact that Kola had a smartphone in his hand when the police opened the door. An inference was drawn that he was deleting messages, which was bolstered by the absence of any drug-related material found on the device. Without a pre-sentence report, he imposed a custodial term of 3 years, based on a starting point of 4 ½ years’ custody with a reduction for mitigation.

The Appeal

Lady Justice Andrews found that the Judge had erred in categorising Kola’s role as significant. There was no evidence that Kola had a managerial or organisational function. Nor was he directing others. Whilst he was street dealing a long way from home, this was consistent with him being a County Lines runner who was being brought in by others from outside the area.

The Court emphasised that the mere presence of certain items – a ringing phone or possession of cash – is insufficient on its own to infer a significant role. Although Kola had cash and an active phone, there were no communications or messages tying him to larger dealings. To the contrary, the absence of material on the phone was suggestive of Kola being directed by others. The Court observed that there was “no significant financial gain evident from the cash found in the car,” and no evidence on the phone to indicate the organisation or direction of others​. Andrews LJ held that the judge was wrong to draw an inference on the evidence available that Kola was deleting messages. Even if it had been open to him, it was wrong to speculate about the nature of the messages.

Absent more direct proof of involvement, such as messages arranging supply or evidence of controlling others, the inference must be that Kola was a low-level street dealer or courier within a county-lines network. Because of this, a lesser role was more appropriate, warranting a lower starting point within the guidelines. The appeal was allowed and the Court substituted the original sentence for one of 18 months’ imprisonment.

Conclusion

It is common for the Crown to place all PWITS cases under significant role on the Sentencing Guidelines as a matter of default. This decision makes clear that marking a defendant as someone of significant role within a drug operation is not, and cannot be, an automatic assumption. Rather, there needs to be an evidential basis to support that assertion and any similar inferences.

The Court effectively warned against presumptions: ordinary indicators of dealing (cash, packaging, or phone use) do not automatically escalate culpability from a lesser role. In sentencing, prosecutors and judges must not simply assume greater culpability from such circumstantial factors. Instead, there must be credible evidence of the offender’s organisational control, intent to profit at scale, or one of the other elements highlighted in the Sentencing Guidelines.