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Drug Offenders and Sentencing Policy*

Ralph Henham

Reader in Law
Nottingham Trent University

*Revised version of a paper delivered at the British Criminology Conference, Loughborough University, July 1995.

Copyright © 1996 Ralph Henham.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This paper is concerned to illustrate how recent sentencing policy has precipitated a reversal of the apparent welfarism in the treatment of drug offenders evident in the Criminal Justice Act 1991. An increasingly retributivist penal climate has produced a situation where drug offenders are likely to receive more frequent and lengthier custodial sentences. Since neither the executive nor the judiciary appear able to contribute towards the development of a coherent sentencing strategy for dealing with drug related crime it is argued that the introduction of strategic incentives to treatment in the criminal process may provide a solution.

Contents

Introduction
The retreat from welfarism
The impact of recent criminal justice legislation
The role of the criminal courts
Drug trafficking and sentencing principles
Concluding remarks

Bibliography

Introduction

In February 1994 the Home Secretary, Mr Michael Howard, announced a proposal to increase the maximum fines for cannabis possession fivefold to £2500 by an amendment to the Criminal Justice and Public Order Bill 1993. Fines were also to be increased from £500 to £2500 for illegal possession, production and supply of amphetamines and barbiturates. The announcement was justified by reference to the Government's "get tough" approach to law and order, sources close to the Home Secretary being quoted as stating that:

"His view is that if these are fines, they ought to be stiff ones, in order to drive home the message that illegal conduct is not acceptable. People who transgress should realise that they face a fine, not a minor financial penalty they can view as an occupational overhead" (Sunday Times, 13 February 1994).

Predictably, the announcement met with almost universal condemnation.(1) The most telling criticism concerned the Government's apparent determination to eschew the trend towards liberalisation despite Home Office statistics which showed that 51% of those arrested for cannabis possession received a caution in 1991. The main implication of the proposals was a predicted significant increase in custodial sentences for drug offenders resulting from their inability to pay increased fines. Notwithstanding, Schedule 8, Part II, Criminal Justice and Public Order Act 1994 contained (inter alia) increases in maximum fines for offences relating to possession of Class B drugs (s 5(2) and Schedule 4, column 5, Misuse of Drugs Act 1971) from £500 to £2500 and offences relating to the possession of Class C drugs (s 5(2) and Schedule 4, column 6, Misuse of Drugs Act 1971) from £200 to £1000 which apply to offences committed after 3rd February 1995.(2) These provisions may be seen as enacted in pursuit of a political agenda which seemingly chooses to ignore the fact that the consequences of failure to meet these increased financial penalties will be a continuing contribution to the rising prison population. Home Office statistics continue to reveal that possession of cannabis is by far the most common drug offence accounting for almost 90 per cent of 48,900 convictions in 1992 (Home Office 1993a, paras. 12 and 15). Some 7 per cent of this total (about 3400 offenders) were given immediate jail sentences. This represents approximately 9.6 per cent of prisoners in Prison Service establishments or 7.4 per cent of the average population in custody in 1992 (Home Office 1993b, Tables 4 and 5) and is clearly a significant component of the prison population. With substantially increased Class B and C drug seizures being reported (3) the proportion receiving custodial sentences for possession will inevitably reflect this trend. The upward trend will itself be inflated by those additionally receiving custodial sentences for breaches of financial orders or crime to finance payment.

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The retreat from welfarism

This latest twist in Government sentencing policy for drug offenders is symptomatic of the anomalies and confusion persisting in this area of policy-making during recent years. For example, there has been a bifurcation of approach, fostered by recent criminal justice legislation, which is exemplified by the failure to distinguish between drug takers and suppliers with regard to the scaling of penalties. As Collison (1993) has pointed out drug users rapidly assume the status of suppliers and traffickers once they have been drawn into the criminal justice system. This results in punitive and deterrent measures designed only for the so-called "villains" being applied to both groups. Since, the largest prisoner group relates to Class B drug offenders rather than Class A suppliers and traffickers (Home Office 1992, Table S2.12) it is arguable that the relevant legislative provisions are failing to make a significant impact upon this important group. The implications of blurring the distinction between custody and treatment are profound since it results in the criminalisation of less serious offenders with consequential increases in drug related activity with its attendant social consequences. Such a policy eventually contributes to an increase in the numbers of recidivist drug offenders who become locked in a cycle of increased prisonisation. Hence, the serious nature of the prison drug problem is continually exacerbated by the failure of sentencing policy for drug offenders to address this issue. The bifurcation of approach is further perpetuated within penal institutions where the relationship between custody and treatment is tenuous. As a result there is a tendency for treatment initiatives to become diluted within the mainstream prison system. Not only is any form of compulsory treatment invariably defined as punishment by prison inmates but treatment may also become a guise for control within a penal institution. Since custodial and treatment objectives may be seen as mutually contradictory there is no doubt that any system of specialised treatment has to recognise that inmates must contribute to the maintenance of the prison. Hence, the prospect of treatment-oriented penal institutions is limited by two factors:-

1. The attitudes and demands of inmates exist in an environment characterised by inmate hostility. Attempts to apply individualised treatment criteria may be interpreted as the administration of special favours or privileges.

2. Any system of specialised treatment must accept that the maintenance of the prison needs the co-operation of the inmates. It is certainly arguable, therefore, that the recent introduction of random drug tests in prison will serve to undermine prison treatment initiatives.(4) In any event, there is no doubt that the endemic nature of the drug culture in British prisons (5) and the power hierarchy it sustains exacerbates attempts to foster individual or group treatment programmes.

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The impact of recent criminal justice legislation

Nowhere is the retreat from welfarism more apparent than in the recent history of criminal justice legislation. The Criminal Justice Act 1991 appeared to herald an era of progressive change through the introduction of a requirement to be added to a standard probation order that an offender should receive treatment with a view to the reduction or elimination of the offender's dependency on drugs and alcohol (Schedule 1, Part II, para. 6 (2)). Paragraph 6(1), not only made it a condition of the order that the drug or alcohol dependency must be treatable (Schedule 1, Part II, para 6 (1) (c), it also made it a condition of such an order that the offender is dependant on drugs or alcohol but also that his dependency caused or contributed to the offence in respect of which the probation order is made (Schedule 1, Part II, para 6 (1) (a) and (b).(6) The 1991 Act provisions marked a significant change to welfarism in comparison with the pre-Act probation alternatives.(7) The most significant aspect of the changed criteria relates to the wide definition of drug dependency as including a propensity towards the misuse of drugs or alcohol, thus moving away from the restrictive psychiatric requirement (Schedule 1, Part II, para 6 (9). Lee (1993) has observed that drug agencies were advised to regard the 1991 Act's approach as a major policy initiative requiring significant forward planning. However, Lee reported several weaknesses in the 1991 legislative framework indicating a failure to provide a community based sentencing alternative for recidivist drug offenders. Lee also suggested that sentencers might prefer the pre-Act conditional residence requirement rather than conditional treatment since the former can be used as a punitive restriction on liberty (see further Lee and Mainwaring, 1995).

The welfarism of the 1991 Act probation provisions was, of course, against the overriding policy contribution of the Act with its emphasis on just deserts (Home Office 1990, para. 1.6, 2.3 and 2.9. The subsequent amendments to the 1991 Act made by the Criminal Justice Act 1993, s 66.(8) provided further evidence of a concerted re-alignment of policy towards punishment and deterrence. These provisions appeared to signal the end of any deliberate sentencing policy aimed at diverting the petty persistent or recidivist offender away from custodial to community based sentencing alternatives. This would ensure a return to punishment at the expense of treatment for many drug offenders. These difficulties were compounded by the impact of s 29(1) (as substituted by s 66(6) Criminal Justice Act 1993)(9) since Ashworth and Gibson suggested that the wording of the substituted s 29(1) would have the effect of allowing previous convictions and sentences to lift a particular offence over the custody threshold.(10) Wasik and von Hirsch (1994, p 415) however, retorted that in their opinion reference to "failure to respond" in the new s 29(1) had to be construed narrowly and was relevant only "in considering the seriousness of the offence".(11) Even if this limitation were accepted there was considerable doubt concerning what could be regarded as a "response" to previous sentences. Ashworth and Gibson opined (1994, p105) that any conduct following the imposition of a sentence could be construed as a "response" including breach or failure to respond to a community order, and also reconviction (and perhaps even other behaviour falling short of criminality or conviction) after the termination of such an order. As Collison has pointed out (1993, pp 390, 393) drug addicted offenders who lack the motivation to give up and who have demonstrated this through their past behaviour may become suitable cases for prison more quickly. Furthermore, the drug-related nature of many offences involving recidivist offenders often remains undisclosed. Such offenders may perceive the custodial option as less unattractive than what they perceive to be strict breach and treatment conditions. There is no doubt that drug addicted offenders are more likely to be disadvantaged by the 1993 Act amendments to the 1991 Criminal Justice Act considered herein.

There remain several other policy implications of the 1991 and 1993 Criminal Justice Acts requiring comment in so far as they impinge on the sentencing of drug offenders. Firstly, it is arguable that the early release procedures introduced by the Criminal Justice Act 1991 may result in longer terms of imprisonment being served by drug offenders in common with offenders in general (Thomas 1992, Home Office 1994a, para 14) and, in addition, that the strict breach criteria introduced by the 1991 Act for community service and probation orders will result in an increase in custodial sentences for drug offenders where drug dependency renders them more likely to commit breaches of such orders (Collison 1993, p 393). The second point concerns the protective sentencing provisions introduced by ss 1(2)(b) and 2(2)(b) 1991 Act (12) allowing a protective element to be added to the sentence in the case of violent and sexual offences (defined by s 31(1)) where necessary to protect the public from serious harm from the offender (defined by s 31(3)). Section 31(3) currently states that any reference to protecting the public from serious harm is to be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological which would be occasioned by future violent or sexual offences committed by the offender. Since R v Bowler [1993] Crim. L.R. 799 the Court of Appeal has been prepared to recognise that in assessing the incidence of serious harm a court may have regard to the degree of vulnerability of potential victims and it is certainly arguable that the definition of serious harm in s 31(3) is capable of including such harm as is caused by the supply and sale of dangerous drugs.(13) Although doubt exists as to the protective efficiency of the life sentence as a maximum sentence in serious Class A supply cases protective sentences under s 1(2)(b) of the 1991 Act are currently restricted by the upper limit of the maximum term available for the offence (Thomas 1993, p. 978). Finally, it should be remembered that s 4 of the 1991 Criminal Justice Act introduced an apparently progressive requirement concerning mentally abnormal offenders which provides that in addition to requiring a medical report in all cases where an offender is or appears to be mentally disordered (unless the court deems it unnecessary) the court must also consider the likely effect of a custodial sentence on any mental condition and treatment that may be available (see Henham 1995a). It is arguable that these provisions should apply equally in the case of drug addicted offenders generally as regards the necessity to consider the likely effect of a custodial sentence on the offender's drug problem and treatment availability. At present, unless the drug offender is specifically selected by the court for a treatment-oriented option, he or she will be subject to the general provisions contained in the 1991 Act. (14) However, it should be noted that the requirement to obtain a medical report under S 4 does not apply where a pre-sentence report has been dispensed with under s 3(2) on the basis that the court is of the opinion that it is unnecessary to obtain one in the circumstances of the case. There has been a general relaxation in the legal requirements regarding pre-sentence reports following amendments to Criminal Justice Act 1991, ss 3 & 7 by Schedule 9, paragraph 10 Criminal Justice and Public Order Act 1994 which apply to any sentence passed after 3rd February 1995 (Criminal Justice and Public Order Act 1994 (Commencement No 5) Order 1994). These amendments (inter alia) enable a court in any case of an offender aged 18 or over to dispense with a pre-sentence report as unnecessary when forming an opinion as to the need for, or the appropriate length of a custodial sentence.(15) There seems little doubt that these new provisions will adversely affect prospects for the individualisation of sentences and, therefore, treatment initiatives for drug addicted offenders. Even before the pre-1994 Act provisions the court was only under an obligation to take into account the content of the pre-sentence report together with any other relevant information about the offender and the offence, including aggravating and mitigating factors. The provisions did not oblige the court to consider the impact of imprisonment on the offender's condition or treatment potential.

The drift towards punishment and retribution has recently received further impetus following the announcement by the Home Secretary of the Government's proposals to abolish existing non-custodial sentences and to create a single community sentence (Home Office 1995). The Green Paper suggests that magistrates would decide the type of community punishment and would be empowered to impose extra conditions such as attendance on a drug treatment course. Probation officers would lose their discretion over such matters and magistrates would become involved in decisions regarding the supervision of community sentences by probation and social services departments. It is proposed that magistrates could specify penalty combinations and conditions designed to correspond to the seriousness of the offence and an offender's behavioural or other problems. Magistrates would therefore not only specify the type of punishment in any particular case but also impose conditions such as treatment for alcohol or drug abuse. The proposals have predictably met with considerable opposition (16) and there is no doubt that a reduction in the social welfare input relating to treatment decisions and supervision of drug-addicted offenders is a retrograde step.

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The role of the criminal courts

Further evidence of the recent increased emphasis on punishment and retribution in the sentencing policy for drug offenders can be derived from a comparison of Court of Appeal sentencing principles and the Magistrates Association sentencing guidelines introduced in 1993.(17) Detailed guidelines for drug offences were laid down by Lane C.J. in R v Aramah (1982) 4 Cr. App R (S) 407) and R v Bilinski (1987) 9 Cr App R (S) 360. In cases involving simple possession of Class A drugs Lord Lane in Aramah suggested that the possible variety of individual circumstances was so wide that it was not possible to lay down any meaningful guidelines but that custody would be "both proper and expedient" in many cases. Where possession is for personal use typical sentences have been in the range of six to twelve months in recent years; eg R v Gallagher (1990) 12 Cr App R (S) 224. However, although the National Mode of Trial Guidelines (18) advocate that possession of Class A drugs cases should be committed (now transferred) for trial unless the amount is small and consistent only with personal use, the 1993 Magistrates Association sentencing guidelines (p 23) recommend the entry point as community service. The former Magistrates' Association guidelines (p 22) starting point for possession of a small quantity was a guideline fine of 30 units (under the now abolished unit fine system). It has been argued that sentencing levels in such cases will be raised since the existence of the entry point under the new guidelines will dissuade magistrates from considering lesser alternatives such as the fine and they will be more inclined to move up the penal severity scale. Justification of the reverse will be more difficult. Magistrates may also simply fail to take proper account of those factors which might make an offence less serious or neglect those factors relevant to personal mitigation which are crucial in many drug offence cases. Where the offence is simple possession of Class B drugs Court of Appeal sentencing principles indicate that a fine is usually considered appropriate; R v Jones (1981) 3 Cr App R (S) 51. Although the National Mode of Trial Guidelines point out that possession cases should be committed (now transferred) for trial where the quantity is substantial, both the former and new Magistrates' Association sentencing guidelines (pp 24 and 25 respectively) reflect agreement on the appropriateness of a fine in normal simple possession cases. However, general principles have established that continued flouting of the law may justify a short prison sentence (R v Robertson, Coupar and Baxendale (1982) 4 Cr App R. (S) 150) and even possession of a small amount may result in a short custodial sentence where the offender has a persistent record of cannabis related offences (R v Osborne (1982) 4 Cr App R (S) 362). Notwithstanding the continued existence of these sentencing principles and guidelines there is no doubt that the dominant trend in simple possession cases is towards release with a caution. This reflects a trend towards general relaxation of penalties for soft drug use in European countries. For example, in Germany a number of lower courts recently appealed to the Constitutional Court alleging that they were unable to pass judgment on soft drug users on the basis that the present law was incompatible with the constitutional right to equal treatment with alcohol and nicotine users. The Constitutional Court judgment of 28th April 1994 rejected this argument but advised lower courts to show tolerance to individuals possessing small quantities exclusively for personal use.(19) It is interesting to note that while some 16 per cent of Germans aged between 12 and 39 admit to having consumed illegal drugs at least once (cannabis predominating) findings from the 1992 British Crime Survey reveal that some 28 per cent of UK citizens aged between 16 and 29 admit to some drug use (again, cannabis predominating) (Home Office 1993c). Nevertheless although 24 per cent admitted cannabis use this fell to one per cent for those aged 12 to 13 admitting cannabis use in 1991.(20) It is consequently apparent that de facto decriminalisation of soft drug use and possession has occurred in certain European countries without necessitating deliberate sentencing policy changes.

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Drug trafficking and sentencing principles

The continued emphasis on punishment and deterrence is clearly discernible in recent sentencing legislation and principles aimed at curbing drug trafficking. Although such developments are understandable and necessary it is arguable that their introduction has been at the expense of a diminution of offenders due process rights. Whilst there are several major erosions of due process discernible in the Drug Trafficking Act 1994 (see Henham 1994, p 225) the most significant is that contained in s 2 (8) of the 1994 Act which reverses the rule in R v Dickens (1990) 12 Cr App R (S) 191 by requiring the civil standard of proof to determine whether a person has benefited from drug trafficking or the amount to be recovered. Sallon and Bedingfield (1993) have questioned the efficacy of a policy which drastically erodes some of the fundamental rights of an accused in a criminal trial without establishing the potential for any perceptible reduction in drug use. In March 1994 the Court of Appeal in R v Richardson, Teixeira, Dean, Tredwin (The Times, 18 March 1994) felt obliged to provide detailed sentencing guidelines for abnormal crimes of Class A drug trafficking. Lord Taylor CJ, giving the judgement of the court pointed out that the existing guidelines laid down in Aramah (and revised in R v Bilinski) were inadequate. In Aramah it had been suggested that where the street value of the consignment was of the order of £1 million or more 12 to 14 years imprisonment was the appropriate sentence whereas in Bilinski Lord Lane CJ had felt compelled to increase that figure to "14 years and upward". Since the present case involved the importation of hard drugs worth £50 million in street value, the question of what was meant by "and upwards" had to be explored and some guidance provided for what was becoming an increasing trend. The Court of Appeal agreed with the approach adopted by Lord Lane C.J. in R v Scamaronie (1992) 13 Cr App R (S) 702 that in such cases sentences in the order of 25 years were not inappropriate reduced to 20 years to reflect mitigating circumstances such as plea and assistance given.(21) Finally, in R v Aroyewuni [1994] Crim. LR 695 the Court of Appeal again amended existing sentencing guidelines relating to the importation of Class A drugs. The court held that street value would no longer be used as a basis for determining the sentence in such cases and that a better way to measure the relative significance of any seizure of Class A drugs is by weight. Following the increase in the maximum sentence for importing Class A drugs (from 17 September 1985) the Court of Appeal in Bilinski had increased the suggested sentences to 10 years and upwards where drugs had a street value of around £100,000 and (as stated earlier) to 14 years and upwards where the street value was in the order of £1 million or more. Lord Taylor CJ in Aroyewuni stated that the Court of Appeal has decided to substitute the Bilinski guidelines with the following:- where the weight of the drugs at 100 per cent purity (22) is in the order of 500 grammes or more sentences of 10 years and upwards are appropriate. Where weight at 100% purity is in the order of 5 kilogrammes or more sentences of 14 years and upwards are appropriate. The Court did not think it appropriate to extend the guidelines to other Class A drugs such as LSD and Ecstacy (MDA) (23) or to the Class B drug amphetamine sulphate. With regard to the latter, there already existed numerous reported decisions of the Court of Appeal confirming its treatment along broadly similar lines to cannabis offences, within the Aramah guidelines, although the Court emphasised the importance of taking into account the purity level as well as weight or quantity in such cases. One of the main reasons given by the Court for preferring weight to street value in assessing the relative significance of Class A drug seizures concerned the ready availability of heroin and cocaine causing a fall in the consumer price. Thus increasing drug imports were lowering the street value per gramme. By taking the street value as the criteria, the sentencing level for like quantities of the drug became lower as the drug became more plentiful. It could not serve Parliament's purpose if the more drugs imported and the lower the street price, the lower the sentencing level. In a recent study Green, Mills and Read (1994, p 483) confirm that both previous sentencing guidelines and previous findings appeared to indicate that the crucial determinant in the sentencing of drug importers was estimated street value of the drug imported yet their analysis found only a moderate positive correlation between the estimated street value of the drug imported and the length of sentence. Green et al state that in their view a substantial proportion of the variation in sentence length was attributable to factors other than the estimated street value of the drug and that judges appeared prepared to depart from the guideline sentences in more serious cases by exercising their discretion thus "obscuring the apparent proportionality implicit in the Aramah and Bilinski guidelines". The result is perhaps not surprising in that the Court of Appeal had frequently recognised the shortcomings in the provision of street value estimates (see Kay 1987) and had itself stated in R v Patel (1987) 9 Cr App R (S) 319 that so long as they were used as a rough yardstick there was no reason why judges should not measure the length of a sentence to some degree by them. With cocaine and crack seizures increased by 20 per cent and heroin 10 per cent during 1991-92 (Home Office 1993a, paras 8 and 9) it may be surmised that the Appeal Court has responded with uncharacteristic speed to a perceived need to maintain the elements of retribution and deterrence in sentencing levels for large scale drug importation. There is also evidence to suggest that this view is not simply confined to drug importation. For example, in R v Kempley (The Times, 4 April 1994) the Court of Appeal held that there had to be a deterrent element in any sentence imposed on someone found in possession of the Class A drug Ecstacy with intent to supply it to others. In this case the Court upheld the defendant's five year prison sentence for this offence although it was his first offence.

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Concluding remarks

The implications of the drift towards retribution and deterrence in the sentencing policy for drug offenders is all too apparent. The increased numbers imprisoned will contribute to an already grossly overcrowded and deteriorating prison situation (Home Office 1994, para 20) and drug-related crime will increase. There is a danger that the UK could follow the United States where Bureau of Justice Statistics recently revealed that the prison population had almost tripled during the period 1980-93, from 329,821 to 948,881. The Bureau attributed almost half the increase in prisoners to the US Government's war on drugs with stiffer sentences and limits on parole.(24) It has been argued in this paper that the welfarist provisions contained in the Criminal Justice Act 1991 seem destined to be subsumed by the general climate of punishment and deterrence evident in recent government sentencing policy. In the medium to long term recent changes will neither reduce drug use nor the imprisonment of drug offenders. I would argue that certain strategic sentencing provisions would repay closer scrutiny and provide constructive alternatives. For example, in Germany, drug sentencing law not only reflects a clear distinction between repressive and therapeutic measures it also integrates therapy into the sentencing process and uses it as an incentive enabling the offender to mitigate or suspend the punitive aspects of the sentence (see Council of Europe 1991). Under s 56 of the Criminal Code the public prosecutor may with the court's consent temporarily refrain from charging the defendant if he proves that he has been undergoing treatment for drug addiction with a view to rehabilitation for at least three months provided the expected sentence is not more than two years imprisonment. The proceedings are themselves terminated after four years provided treatment has been completed, the defendant has not re-offended, and there is no fresh evidence indicating a more severe sentence for the initial offence. In the case of imprisonment for up to one year (exceptionally two) the court will suspend the sentence on probation for two to five years if it expects the defendant to be deterred from future offending merely by the fact of conviction, even without the impact of a prison sentence. The court may impose conditions and directions such as the direction (with the defendant's consent) to undergo curative treatment or a residential requirement. If the defendant fails to comply the suspension of the sentence is revoked; if he does comply the sentence is remitted at the expiration of the probation period. Section 57 of the Criminal Code provides for the suspension of the remaining part of a sentence after two- thirds (exceptionally one-half) has been served if the court is satisfied that the defendant will not re-offend following release. These measures are mainly applied where a defendant has a good prognosis and displays a willingness to undergo treatment. Where a sentence is not suspended due to unfavourable treatment prognosis ss 35 and 36 of the Narcotics Act allow the public prosecutor, with the court's consent, to postpone execution of a prison sentence (or the remainder of one of not more than two years) for up to two years where the defendant's offence was connected with his drug addiction and he is undergoing treatment for the purpose of rehabilitation or definitely about to commence it. The duration of the treatment counts towards the sentence and successful therapy may result in suspension and finally remission of the sentence. Failure to complete the therapy may result in revocation of sentence postponement and continued execution of the sentence, although renewed postponement is a possibility. Finally, s 64 of the Criminal Code allows a court to order in a sentence for admission of an addicted offender to an institution for drug addicts if the prognosis is that he may commit serious offences in the future because of his disposition.

Collison (1994, pp 28 and 37) has indicated that changes in cautioning policy with respect to Class A drug offenders are inconsistent. Further, not only do referral practices differ between police forces, cautioning policy may be attributable to organisational demands for efficiency and production. Since the majority of Class A drug offenders will find their way to court it becomes imperative for sentencing policy to adopt strategic proposals for harm reduction to halt the post-1991 Act slide towards the increased criminalisation of addicted offenders. With criminal justice and Government agencies each pursuing separate agendas compromise solutions must be urgently pursued. I would argue that for sentencing policy such a compromise should represent a reduction in penalty levels and the implementation of suspended sentences of imprisonment by strategic postponement in sentence execution provided therapeutic measures are completed.(25)

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Bibliography

Ashworth, A and Gibson, B (1994) 'The Criminal Justice Act 1993: Altering the Sentencing Framework' Criminal Law Review 101.

Collison, M (1993) 'Punishing Drugs: Criminal Justice and Drug Use' 33 British Journal of Criminology 382.

Collison, M (1994) 'Drug Crime, Drug Problems and Criminal Justice: Sentencing Trends and Enforcement Strategies ' 33 Howard Journal of Criminal Justice' 25.

Council of Europe (1991) Study and Synopsis of Basic Criminal Law Concepts of Pompidou Group Member Countries on the Prevention of Drug Trafficking and Abuse, Strasbourg: Council of Europe.

Floud, J and Young, W (1981) Dangerousness and Criminal Justice (London: Heineman).

Green ,P, Mills, C and Read, T (1994) 'The Characteristics and Sentencing of Illegal Drug Importers' 34 British Journal of Criminology 479.

Henham, R (1994) 'Criminal Justice and Sentencing Policy for Drug Offenders' 22 International Journal of the Sociology of Law 223.

Henham, R (1995a) 'Dangerous Trends in the Sentencing of Mentally Abnormal Offenders' 34 Howard Journal of Criminal Justice 10.

Henham, R (1995b) 'Sentencing Policy, Appellate Guidance and Protective Sentencing' Journal of Criminal Law.

Home Office (1990) Crime Justice and Protecting the Public (London: HMSO) Cm. 965.

Home Office (1992) Statistics of Drug Seizures and Offenders dealt with, UK, 1991, Supplementary Tables (London: HMSO).

Home Office (1993a) Statistics of Drug Seizures and Offenders dealt with, UK, 1992 (Statistical Bulletin 30/93) (London: Home Office).

Home Office (1993b) The Prison Population in 1992 (Statistical Bulletin 7/93) (London: Home Office).

Home Office (1993c) Self Reported Drug Misuse in England and Wales Main Findings from the 1992 British Crime Survey (London: Home Office).

Home Office (1994a) The Prison Population in 1993 and Long Term Projections to 2001 (Statistical Bulletin 16/94) (London: Home Office).

Home Office (1994b) (Green Paper) Tackling Drugs Together : A Consultation Document on a Strategy for England 1995-1998 (London: HMSO) Cm 2678.

Home Office (1995a) (Green Paper) Strengthening Punishment in the Community (London: HMSO) Cm2780.

Home Office (1995b) (White Paper) Tackling Drugs Together: A Strategy for England 1995-1998 (London: HMSO) Cm2846.

Kay, L (1987) 'Aramah and the Street Value of Drugs' Criminal Law Review 814.

Lee, M (1993) 'The Unspoken Sentence? Treatment Conditions for Drug Using Offenders under the 1991 Criminal Justice Act' 12 Criminal Justice Matters 15.

Lee, M and Mainwaring, S (1995) 'No Big Deal: Court Ordered Treatment in Practice' Druglink, January/February 14-15.

Leitner, A, Shapland, J and Wiles P (1993) Drug Usage and Drugs Prevention: The Views and Habits of the General Public (London: HMSO).

Maden, A et al (1991) 'Drug Dependance in Prisoners' 302 British Medical Journal 880.

Sallon, C and Bedingfield, D (1993) 'Drugs, Money and the Law' Criminal Law Review 165.

Thomas, D A (1992) 'Towards a New Tariff' 4 Sentencing News 12.

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Walker, N (1985) Sentencing Theory Law and Practice (London: Butterworths).

Wasik, M and Taylor, R D (1994) Blackstones Guide to the Criminal Justice Act 1991 (London: Blackstone Press).

Wasik, M and von Hirsch, A (1994) 'Section 29 Revised - Previous Convictions in Sentencing' Criminal Law Review 409.

Footnotes

(1) Mike Bennett, chairman of the Metropolitan Police Federation; "This is absurd. Just to announce a fivefold increase in the fine instead of looking at the problem won't make it go away. You'll end up with an awful lot of unpaid fines. That will deplete court resources. These proposals are not well thought out. Many people who use cannabis simply won't be able to afford the new fines and may end up in prison."
Anthony Scrivener Q.C., former chairman of the Bar Council; "This is a ridiculous waste of resources. All this will do is lead to an increase in people going to prison."

- both quoted in the Sunday Times, 13 February 1994.
Richard Coyles, chairman of the Police Federation; "It is what magistrates decide that matters. They deal with the reality of the people before the courts. We know there is a link between crime and drugs. Fines at this level will mean more people committing crime to pay them."
Mike Goodman of Release commenting on the tougher penalties of the last 25 years; "Drug seizures have increased, drug offences have increased, and drug use has increased. The policy has not worked and in our view won't work."
- both quoted in The Times, 14 February 1994.

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(2) Criminal Justice and Public Order Act 1994 (Commencement No. 5) Order 1994. Fines were also increased in the case of the following offences by Schedule 8, Part II of the 1994 Act - Production or being concerned in the production of Class C drugs; s 4(2) Misuse of Drugs Act 1971 - from £500 to £2500.
Supplying or offering to supply Class C drugs or being concerned in the doing of either activity by another; s 4(3) Misuse of Drugs Act 1971 - from £500 to £2500.
Having possession of Class C drugs with intent to supply; s 5(3) Misuse of Drugs Act 1971 - from £500 to £2500.
Being the occupier or being concerned in the management of premises and permitting or suffering certain activities concerning Class C drugs to take place there; s 8 Misuse of Drugs Act 1971 - from £500 to £2500. Back to text

(3) Ecstacy seizures increased by almost 40 per cent to 2400 compared with 1700 in 1991 and 400 in 1990. Seizures of amphetamines rose 55 per cent to 10600, more than three times as many as in 1989. LSD seizures increased by 50 per cent to 2500, the number of doses recovered totalling 540000 compared with 170000 in 1991. Heroin seizures were up 12 per cent to around 3000 and cocaine seizures rose by 20 per cent. Fifty one tonnes of cannabis were found, 60 per cent more than in 1991 although seizures actually dropped by 3 per cent to 57700 (Home Office 1993a, paras. 8 and 9). Back to text

(4) It was reported in The Guardian 7 July 1994 that random drug tests would be carried out on 12000 prisoners each year following a prison service drugs survey which had revealed a 58 per cent increase in Class A drug finds in the previous year. The tests would apply to 5 per cent of inmates with a further 5 per cent being tested on suspicion. Inmates who refused would be disciplined and lose privileges. Section 151 Criminal Justice and Public Order Act 1994 introduced powers for prison officers to require prisoners to provide a sample of urine for drug testing purposes (operative from 9 January 1994; Criminal Justice and Public Order Act (Commencement No 2) Order 1994). The Prison (Amendment) Rules 1994 (No 3195) made under the Prison Act 1952, s 47 (also operative from 9 January 1995) amended S.1. 1964 No. 388 to allow for collection of samples from prisoners for drug testing and introduced a new disciplinary offence (inter alia) of unlawful administration of a controlled drug. Back to text

(5) See, for example, Maden et al (1991). Maden et al estimated that 11 per cent of the imprisoned male population and approximately 25 per cent of the female population were dependent on drugs whilst it is acknowledged that a significant number of imprisoned drug offenders do not admit their problem to the prison medical service. Back to text

(6) It was suggested by Wasik and Taylor (1994, p 67) that the provisions could be used where the offender had committed an offence to obtain money for drugs, or assault to obtain drugs or robbery or burglary of a chemist's shop. In other words the offence does not have to be directly drug or alcohol related or committed under the influence of either. Many such offences would not qualify for a probation order in any event, since they would be regarded as "so serious" that only a custodial sentence could be justified. Back to text

(7) The first of these was a probation order containing a requirement as to psychiatric treatment available where the offender was not found to be suffering from one of the forms of mental disorder which would have justified the making of a hospital order. Such an order was regarded as appropriate where it was felt that it would have such beneficial effects on the offender as would outweigh the risk to the public; R v Mcdonald (1983) 5 Cr App R (S) 419. The other two pre-1991 Act probation orders were orders made with a residential requirement in a drug rehabilitation unit or as directed by a probation officer. The use of such orders is discussed by Collison (1994, p 29). Back to text

(8) Section 66(1) of the 1993 Act amended s 1 of the 1991 Act to permit the court to look at the offence and all associated offences (or any combination thereof) when considering whether to impose a custodial sentence on the basis of its seriousness. This removed the controversial restriction that the courts were only allowed to take account of the offence and one other associated offence in considering whether to impose a custodial sentence or a community penalty on the basis of its seriousness. Section 66(2) made corresponding amendments to allow a court to consider all associated offences when determining the length of a custodial sentence. Finally, s 66(3) amended s 3(3) (a) of the 1991 Act by requiring that in forming an opinion as to whether a custodial sentence is justified and as to the length of any such sentence, the court must take into account all such information as is available to it about the offence and any associated offences combined with it under ss 1(2) (a) or 2(2) (a) (as amended). Back to text

(9) The subsection states that "in considering the seriousness of any offence the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences". Back to text

(10) "Thus, the notion of proportionality to the seriousness of the current offence, so pivotal to the scheme of the 1991 Act has been weakened. Prisons and young offender institutions may once again fill with people who have been sentenced on their record rather than for a serious offence (Ashworth and Gibson, 1994 p 106). Back to text

(11) The logic of their argument is that an offender's failure to respond is relevant only when it impinges on the offender's culpability which is in turn circumscribed by the concept of seriousness embodied in the 1991 Act. It is, therefore, consistent with the notion of just deserts that the current offence should be regarded as a ceiling of "seriousness" beyond which the sentencer cannot go. A weakness in this approach lies in the implicit assumption that it is possible to know how aggravating factors such as previous convictions, operate on sentencers' decision-making processes and raise the sentence for the present offence above one threshold to another. Back to text

(12) Section 1(2)(b) provides that a court shall not pass a custodial sentence on an offender unless it is of the opinion, where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him. Section 2(2)(b) provides that the length of the custodial sentence, where the offence is a violent or sexual offence, shall be for such longer term (not exceeding the permitted maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender. For the sentencing policy implications of these provisions see Henham (1995b). (13) Since there is no definition of "dangerousness" and no legal test or guidance in its prediction contained in the 1991 Act or elsewhere it is open to suggest that the danger presented by drug suppliers and pushers approximates that of an imminent danger (see Walker 1985, p 363). There would be no difficulty in accommodating the danger in terms of the sorts of harm against which precautions are justifiable in the terms postulated in Floud and Young (1981) viz "any offence which caused or was intended to cause; death; serious bodily injury; serious sexual assault; evere or prolonged pain or mental distress; loss or damage to property which results in severe personal hardship; amage to the environment which has serious adverse affects on public health or safety; serious damage to the security of the state". The change required would be in terms of the behaviour which produces the harms in question. Back to text

(14) If the offence is so serious it may merit a custodial sentence; ss 1(2)(a) and 2(2)(a). Back to text

(15) Under the original provisions contained in Part I of the 1991 Criminal Justice Act a sentencing court was required to obtain and consider a pre-sentence report when making a decision whether a custodial sentence is justified and as to the appropriate length of a custodial sentence. Section 3(3)(a) requires the court to take into account "all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it. Further, s 28(1) provides that "nothing shall prevent a court mitigating an offender's sentence by taking into account any such matters as, in the opinion of the court, are relevant in mitigation of sentence." Finally, s 29 (1) permits the court to have regard to the offender's previous convictions and responses to previous sentences. In all these matters the pre-sentence report is a vital source of information. The only exception to the original mandatory requirement for a pre-sentence report in custody cases was under s 3(2) which provided that no pre-sentence report needed to be obtained where the offence was triable only on indictment and the Crown Court judge took the view that obtaining one was "unnecessary". Back to text

(16) See comment in The Times on 16 March and 4 April 1995 and, particularly, the letter from Paul Cavadino, Chair, Penal Affairs Consortium, The Time 28 March 1995. Back to text

(17) The introduction of revised sentencing guidelines for magistrates in September 1993 was treated with some suspicion that the courts would be reluctant to depart from the prescribed "entry points" to take account of the factors relevant to the seriousness of the offence and mitigating factors. See, for example, comments by Roger Ede, Secretary, Law Society's Criminal Law Committee and Frances Crook, Director, Howard League in The Gazette 21 September 1993, p 4. Scepticism was also voiced by Lord Taylor CJ in his speech to NACRO in September 1993. It was felt that the new guidelines would contribute to an increase in the prison population because of the fundamental change in their recommended approach to sentencing. The former guidelines (issued in June 1992) had provided a number of "starting points" for each offence and magistrates were invited to consider tougher sentences on the basis of weighing up aggravating and mitigating circumstances and rejecting lesser alternatives. The new guidelines provided that the term "entry point" was simply used as a guide for an offence of average seriousness. The main criticism was that the entry points had been fixed at a higher level in the case of certain offences and magistrates would be deterred from considering lesser alternatives as they would have been forced to do by the approach adopted in the former guidelines. Back to text

(18) See Practice Note (Mode of Trial: Guidelines) [1990] 1 WLR 1439. (19) See The Times 29 April 1994 where some of the other legal problems raised by the court judgment are referred to eg the reporting by police of increasing numbers of car accidents caused by soft drug users, the problem being that drink-drive tests do not show up the use of marijuana although the effects are similar. Back to text

(20) These figures are supported by research carried out by Leitner, Shapland and Wiles (1993). Their research also confirmed (inter alia) that:-

(i) only a small minority of the population admitted ever taking illicit drugs;
(ii) there were regional variations in admitted drug use in addition to variations by drug type;
(iii) "recent" usage was much less extensive than "ever" usage;
(iv) drug usage was spread generally across different social classes;
(v) generally whites were more likely than non-whites to have used illicit drugs;
(vi) men were more likely than women to have taken illicit drugs.

Back to text

(21) Lord Taylor CJ again repeated that a plea of guilty in such cases should result in a substantial discount. As regards assistance to the authorities the discount would depend on a number of factors such as: the actual value of the assistance, the extent to which it demonstrated contrition, the risk to the offender and his family of possible reprisals and any evidence of the results of the assistance given. Back to text

(22) The court decided that in order to achieve an accurate and fair standard applicable to all cases it was necessary to calculate the weight of the drug of 100 per cent purity contained in each seizure. By calculating the weight at 100 per cent strength, a consistent approach could be made to the significance of each consignment. Back to text

(23) In R v Warren, Beeley, The Times, 3 July 1995 the Court of Appeal produced sentencing guidelines for Ecstacy (MDA). Lord Taylor CJ stated that the criteria should be based on the drug's active constituents which in most tablets was approximately 100 mg. On this basis 5,000 tablets would be assumed to contain 500 g of Ecstacy. Following R v Aranguren (1994) 99 Cr App R 347 (heroin and cocaine) the Court stated that where 5,000 tablets were involved the appropriate sentence would be in the order of 10 years and upwards whilst 14 years or more was appropriate where 50,000 or more tablets were involved. Back to text

(24) See comment in The Times 23 April and 3 June 1994. Back to text

(25) The relative merits of voluntary and compulsory treatment strategies for addicted offenders are not discussed here (see Council of Europe 1991, Ch 2). Regrettably, very little of substance as regards sentencing policy appears in the recent White Paper (Home Office 1995b). The Government re-affirmed its opposition to decriminalisation of any controlled drug set out in the Green Paper. (Home Office 1994b, Annex C, C 19, p.55). In Chapter 2, 2: 5, p 8 and Annex B, B.25, p 44 it is simply stated that the Green Paper (Home Office 1995a) provides an opportunity to consider the role of treatment for drugs misuse in the rehabilitation of offenders serving a community sentence. Back to text

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