Sentencing for Drug Offences in England and Wales Law Reform without Legislative Reform

Fundamental issues of principle were brought forward for a constructive public discussion for the first time and an Advice has been issued which, if adopted, will radically change sentencing in the courts for many drug offences, and particularly in the case of drug-couriers.

England and Wales has a common law system, not a penal code, and therefore offences can cover a wide breadth of seriousness. It would not be possible, within one guideline, to foresee and prescribe all the myriad computations of factors to do with an offender and an offence that could arise. Accordingly the UK has chosen a presumptive, rather than mandatory guideline system.

Whether or not the balance has been struck correctly - and whatever respondents’ disappointment about the mechanism’s inability to go behind the flawed statutory drug classification system - progress has certainly been made towards evidence-based guidelines. This progress has been achieved via the consultation process because it takes into account the latest academic and statistical research and the views from interested third parties as opposed to the old-style process of a closed court which heard only from parties in the guideline case itself. In terms of drug policy, it is here where the value of the mechanism has lain. Through the consultation and advice process we have learnt that the basis of drug sentencing in England and Wales – deterrence – is, in fact, without evidence-base and ineffective.

Conclusions & Recommendations

• Through the Sentencing Advisory Panel (SAP) we have learnt that deterrence as the basis of drug sentencing is, in fact, without evidence-base and ineffective.
• In the UK, current levels of sentencing for drugs couriers are disproportionate to their culpability and to the harm associated with their offence.
• SAP’s advice has attempted to give a delicate balance between the consistency, transparency, and separation of powers necessary for the rule of law, the predictability which allows better resource allocation, and the overriding commitment to do justice in the individual case.