Comment
Release has launched a comment page where Release staff and guest commentators will provide analysis of current issues within drug policy. Readers of the comment sections will be able to leave their thoughts about the issues being raised. This section of the website has been launched to coincide with Release’s new campaign Drugs – It’s Time For Better Laws.
How do the new Sentencing Guidelines impact on cannabis offences
Posted by Niamh Eastwood on Friday, 27 January 2012
We have received a number of emails from cannabis activists asking for clarification on how the new Sentencing Guidelines will impact on cannabis cultivation and possession. Release provided detailed advice to the Council and has welcomed many of the changes in the guidelines as an improvement on the previous regime, but in relation to cannabis, there has only been a slight shift in approach.
With regards to possession of cannabis, there has been very little change from the current Magistrates Sentencing Guidelines. The starting point for sentencing remains the same, that is, a Band B fine. The sentencing range has changed, previously it was Band A fine (A is lower than a B fine) to 12 weeks custody (this covers sentencing for both small and large possession offences). The new guidelines range from discharge (more lenient than before) to 26 weeks in custody (harsher than before). If someone comes before the court in respect of possession of cannabis for medicinal purposes that would mitigate the sentence, and if there were no other factors could reduce it down from a Band B fine. However, it is still a criminal conviction resulting in a criminal record even with an absolute or conditional discharge.
In terms of cultivation and production of cannabis there does seem to have been real movement, but this is primarily due to the recent guidelines in the Court of Appeal case of R v Auton. This case was decided only last summer and provided much harsher guidelines for sentencing cannabis production cases involving yields of approximately 1 kilo. The guidelines stated that:
- Where there is no element of supply the sentence range is likely to be between 9 – 18 months, depending on size of operation and the defendant’s personal circumstances;
- Where there is no evidence of commercial supply for profit but there is supply to others the range is likely to be 18 months to 3 years – operation and personal circumstances again relevant;
- Where the operation is a commercial one but falls below an industrial operation the range will be 3 to 6 years.
The new guidelines are certainly an improvement on R v Auton and sentencing will be determined through a two-step approach. The first step is to determine the role of the offender and there are three potential categories – lesser role, subordinate role or leading role. The second step is the quantity of drugs involved and there are four categories:
- Category 4 – 9 plants (presumed yield 40gram per plant)
- Category 3 – 28 plants (presumed yield 40 gram per plant)
- Category 2 – operation capable of producing significant quantities for commercial use
- Category 1 - operation capable of producing industrial quantities for commercial use
The Court will then consider mitigating/aggravating factors.
In relation to someone who is producing for their own purposes, or even where it is social supply, it is likely they will fall within the ‘lesser role’ category within the new guidelines. In terms of quantity 1kg (25 plants) would fall within category 3. This would lead to a sentencing starting point of a high level community order and a sentencing range of a low level community order to 26 weeks custody, again depending on mitigating and aggravating circumstances. This is definitely an improvement on Auton but there is still a risk of imprisonment especially where there is a previous conviction.
Where someone was growing a lesser quantity (9 plants) and falls within the lesser role the guidance suggests a starting point of Band C fine, with a sentencing range of a discharge through to a medium level community order. This would then be increased/decreased through aggravating and mitigating factors. Frankly, this is only a slight departure from current Magistrates guidelines which state that the starting point for small scale cultivation is a Band C fine and the range is Band B fine to low level community order.
So overall, whilst we are pleased that our advice has been followed to some degree and has impacted on other areas of sentencing, the general approach to cannabis offences has not shifted a huge amount, and cannabis activists should be aware that the offences remain criminal, and so can result in a criminal conviction. There is also no evidence to suggest that the police will de-prioritise the policing of cannabis cultivation.
Fine Bands
Fine A – Starting point 50% of relevant weekly income; Category range 25% - 75% of relevant weekly income
Fine B – Starting point 100% of relevant weekly income; Category range 75% - 125% of relevant weekly income
Fine C – Starting point 150% of relevant weekly income; Category range 125% - 175% of relevant weekly income
If anyone has any questions on the new guidelines please feel free to comment below and we will respond as soon as possible.
If anyone needs legal advice please contact the helpline on 0845 4500 215 or 020 7324 2989.
Disproportionate policing goes beyond stop and search
Posted by Niamh Eastwood on Wednesday, 18 January 2012
The decision by the Metropolitan Police to review the use of stop and search laws is certainly a welcomed development. According to a report in the Guardian last week the Met intends to halve the number of drug searches carried out. As an organisation that provides legal advice on drug laws we are well aware of how young black men are targeted by the police under s23 of the Misuse of Drugs Act 1971, which permits stop and search where there is reasonable suspicion of drug possession. Often the most tenuous excuses are used to establish that suspicion.
In 2010 the Metropolitan Police carried out 250,000 stop and searches for drugs in the Greater London area, over half of those stopped and searched were under the age of 24 and both those from the black and Asian communities were significantly overrepresented. The arrest rate resulting from these stops and searches was 8%. Research carried out by Professor Alex Stevens at Kent University has found that black men are 9 times more likely to be stopped and searched for a drugs offence. This is despite the fact that the British Crime Survey shows that drug use is higher amongst the white population.
The same survey estimates that nearly 3 million people used an illegal substance in the last year, during the same period almost 80,000 people were found guilty of or cautioned for drug possession, a further 95,000 were dealt with under the cannabis warning scheme. This means that only 5% of those who use illicit drugs are caught up in the criminal justice system. This tends to be the unlucky or the targeted, police stop and search simply does not impact on rates of drug use in the UK.
The decision by Scotland Yard to review police powers in this area is a first step in improving community relations but more needs to be done. Young black men face unfairness throughout the criminal justice system not just in relation to stop and search. In the policing and prosecution of drug offences, Professor Stevens’ research shows that black men are 6 times more likely to be arrested and 11 times more likely to be imprisoned. The reality is that our criminal justice system still suffers from institutional racism. This issue needs to be addressed not only by the police but by prosecutors, judges and the Ministry of Justice.
The fact that senior officers in the Met are highlighting the fact that the laws are being applied disproportionately is progress. The Commissioner’s call for greater ‘training and education’ of officers on the street is certainly a starting point but recognition must be given to the huge rift that exists between the police and certain sections of our communities. This rift is invasive in a number of ways – it undermines community relations; it breaches the basic trust that should exist between an individual and the State; it acts as a barrier to young people joining the police either because of their own negative experiences or because of the judgement of their peers. This ultimately leaves us with a police force which does not reflect the ethnic diversity of our society.
Young people in these communities know that middle class white kids are not being stopped for drugs and those who are caught are generally treated leniently. The unequal application of our drugs law is a powerful reason for other alternatives to be considered. If we took drug possession out of the criminal justice system and dealt with it through education and health, well that would be 250,000 less searches a year and it may go to improve the police relationship with local communities.
Release responds to Sentencing Consultation for Drug Offences
Posted by Niamh Eastwood on Wednesday, 22 June 2011
Release has responded to the Sentencing Council's Consultation Paper on sentencing for drugs offences. We welcome the aim of the Council to achieve consistency in sentencing for such offences. In particular, we strongly welcome the recognition that 'drug mules' are often vulnerable individuals who sentences should not be commensurate with those who are instigators of the drugs trade.
However, we are concerned about the disproportionality of sentencing of drugs offences when compared to other, much more serious and harmful, crimes. The proposed sentence starting point for importation of a large quantity of Class A drugs is 11 years imprisonment. The current sentence starting point for rape is 8 years and for GBH is 3 years. It is shocking that someone who subjects their victim to the humiliating experience of rape will receive a shorter sentence than someone who imports 500g of heroin or cocaine (based on the Council's proposals). Whilst it can be argued that there is a risk of harm to the wider public in importation cases, this is a presumed harm in each instance rather than the direct proven harm in rape, GBH and robbery.
The lack of consistency continues in the grouping of quantities of drugs into categories, which sees no link between the amounts and the relative harms. The proposals would see Ecstasy with a street value of just £200 sentenced in the same way as £4000 worth of heroin. Even leaving aside the problems with the A, B, C classification system, this is clearly unjust. Release strongly calls for a working group made up of experts in the field to determine the correct quantity threshold based on evidence.
In addition to this we propose that the use of quantities in cases of simple possession is unhelpful and the starting point should be based on the class of drug, with quantity taken into consideration at a later stage.
We have also submitted that medical use of a drug should be included as a mitigating factor, as the persecution of people with serious health conditions cannot be in the interests of justice. This is an area of great concern to many who call the Release helpline, and needs to be considered seriously in any sentencing exercise.
In our experience, it is essential that any new guidelines are proportionate and fair and in order to achieve this they must be based on the evidence and hence the realities of the drugs trade. The proposed guidelines reflect a move in this direction but more work needs to be done to ensure sentencing reflects the real harms to society.
Read Release's full response.
Why I want the Government to commission an independent review on the effectiveness of present drug policy
Posted by Rowan Bosworth-Davies M.A. on Wednesday, 01 June 2011
The present Government policies on the use and possession of illicit drugs have failed utterly.
As a former detective in the Metropolitan Police, I saw first-hand how the policies of criminalising people for possessing and using proscribed drugs resulted in wholly discriminatory and socially-excluding enforcement, whereby the young, the marginalised and black communities were targeted, while the white middle-class users of illicit but socially-accepted narcotics were ignored and allowed to continue unmolested.
More to the point, as an active detective focusing on financial crime and money laundering, I realised that by insisting on enforcing the policy, drug criminalisation was helping to pour a torrent of raw cash into the pockets of organised criminals. The more we criminalised the problem, the more money the drug pushers made, while the resultant costs of crime escalated.
It was the most futile and ridiculous policy, but no one had the courage to challenge it publicly, because politicians on both sides of the House of Commons were scared to engage in a real debate, for fear of alienating the opinion forming leader writers in the scaremongering media. The Home Office too had set its mind against any form of debate, and indeed, any informed person in a position of public authority who has dared to challenge the status-quo, finds themselves being marginalised. Professor David Nutt is a recent and classic example.
It was when I became actively involved in the issue of interdicting money laundering, and seeking to prevent the profit flows from the narco-trade, that I began to realise the real truth. The anti-money laundering laws were routinely flouted by the banks, because the flow of drug money was so important to their bottom line. Frankly, without the drug trade, many medium-sized banks around the globe would have gone out of business years ago.
In the UK drug cash is generally calculated by HMRC to be in the region of £6.5 billion, annually. It is only when you appreciate the size of the narco-cash flows that you begin to get a handle on just how big and how widely extended illicit drug taking is. Most children at our schools have experienced drug sales taking place in their grounds. Many of them have taken drugs during school time. At university, it is almost a sine-qua-non that drugs are routinely available in every hall of residence, depending on your narcotic of choice. Many young people prefer to drop Ecstasy prior to going out because pills are cheaper than the alcohol they would have to buy at the club.
This is one of many reasons why the so-called war on drugs is an abject failure and continuing along this road of criminalisation is a hugely expensive waste of valuable police time and resources.
That is one of the many reasons why we urgently need an evidence based health focussed approach to drug policy and for the decriminalisation of drug possession, and why I am proud to be associated with the efforts being made by Law Enforcement Against Prohibition (LEAP) to promote this outcome.
The author is a former Metropolitan Police Detective and lawyer. He has published widely on the subject of financial crime and money laundering. He is the co-author of 'Money Laundering - A Practical Guide for Practitioners', and he has authored three other books on similar subjects. A member of the British chapter of LEAP, he is a member of the Mannheim Institute, a criminology think-tank at the London School of Economics. He is a financial crime consultant and has recently completed projects for the Asian Development Bank in Pakistan, and as an Expert Panel Member for the UN, monitoring financial sanctions in Liberia.
Drugs - It's Time for Better Laws
Posted by Niamh Eastwood on Wednesday, 01 June 2011
Release decided to launch the 'Drugs - It's Time for Better Laws' campaign to highlight the negative impact of the current policy and the need for change. This is why:
In 2010 nearly 80,000[1] people in England and Wales were found guilty of or cautioned for possession of an illegal drug - most were young, black or poor. The young in particular, are affected by these laws with 24,000[2] being cautioned or prosecuted for possession of a drug, primarily cannabis. Since the introduction of the Misuse of Drugs Act 40 years ago, millions of people have been criminalised; in the last ten years alone nearly 1 million people have been cautioned or prosecuted in England and Wales for possession of drugs. There is no evidence that the risk of criminal sanctions deters people from using drugs[3]. The harms caused by criminalising large sections of society are well established and lead to significant wasted resources. At a time when the country is facing the deepest spending cuts in modern history wasting enormous resources to police and prosecute individuals for drug possession is unacceptable.
A criminal record can have a serious impact on educational aspirations. Young people can avoid entering professions such as health, law and working with young or vulnerable people because their record may prevent them from gaining a job in those areas. For those employed as teachers, doctors or nurses an arrest and conviction for drug possession can result in them being barred from working in their profession[4]. Just an arrest for a drugs offence can make it extremely difficult for people to travel to other countries. Consider the economic costs of this wasted potential. Criminalising people who use drugs leads to greater social exclusion and stigmatisation making it much more difficult to play a productive role in society.
Decriminalisation of possession of drugs is one way of overcoming the negative impact of the current system. Portugal adopted a decriminalisation model in 2001 - this saw the introduction of a civil system of dealing with all cases of drug possession. People caught in possession still face sanctions such as a fine, or referral to a treatment programme if they use drugs problematically, however they do not receive a criminal record. Since the introduction of the new model in 2001, Portugal has seen a small rise in the number of people using drugs (there has also been increase in neighbouring countries), however the number of young people using drugs has reduced, as has the number of people who use drugs problematically.
Release supports decriminalisation on pragmatic grounds. The current system of criminalisation creates harms and does not deter drug use. Drug use is a matter of health and education not criminalisation. It is time to stop pointlessly criminalising large sections of society.
Niamh Eastwood
[1] Ministry of Justice, Criminal Justice Annual Report 2010, Conviction Tables, Table A.4 (http://www.justice.gov.uk/publications/statistics-and-data/criminal-justice/criminal-annual.htm)
[2] Ibid.
[3] Stevens, A. & Reuter, P., An Analysis of UK Drug Policy, 2007, UKDPC, page 10 - found that there was little evidence that drug policy impacted on number of users.
[4] The Rehabilitation of Offenders Act 1974 details how a criminal record becomes ‘spent', that is not necessary to disclose, however this does not apply to a range of professions who will always be required to disclose a record.
