Where do we draw the line on drug issue?
THE ODD CRACK had begun to appear, hinting that a hard-line sentencing policy on drugs offenders might be softening a touch. Two or three ecstasy cases had seen jail terms being reduced on appeal to community service orders, and others were starting to look for similar leniency. However, the Justiciary Appeal Court has now gone out of its way to make clear that the policy adopted a decade ago has not yet reached its sell-by date.
Those involved in trafficking class A drugs, even at the lower end of the chain of supply, can expect and will receive a custodial sentence unless there are exceptional mitigating circumstances, the court reaffirmed.
In 1994, Lord Ross, the then Lord Justice-Clerk, headed an appeal court which heard the first case in which the Crown used newly introduced power to challenge a sentence on the ground that it was "unduly lenient". The case selected involved a youth who had been given probation for selling LSD to schoolgirls. The court overturned the sentence and imposed three years' detention.
The ruling was cited a year later in another Crown appeal. This time, a youth had been freed and sentence deferred for two years when he admitted being concerned in the supplying of ecstasy at a disco where, only weeks earlier, a man had died after taking the drug. The youth was a first offender, but it did not stop the appeal court imposing a sentence of four years' detention. Presiding judge Lord Hope, then Lord Justice-General, referred to Lord Ross's remarks in the previous case: "He issued a plain warning to the public, and guidance to sentencers generally, about the way in which offences of the kind committed in this case would require to be dealt with by the court. The requirement is for an immediate and substantial custodial sentence, to punish the offender, to deter others and protect the public. It is only if there are strong mitigating circumstances that any other disposal will be appropriate."
Lord Hope continued: "It has not been suggested in this case that there were any strong mitigating circumstances. [Affirmation of the original sentence] would be contrary to the sentencing policy which this court has felt obliged to follow in the public interest in order to do what it can to deter and punish those who engage in the supply to others of class A drugs. It must be brought home to those who engage in this activity for their own gain, or who may be tempted to do so, that the offence of trafficking in class A drugs is a very serious one. The supply of these drugs. especially to young people frequenting a disco, is an evil practice, in view of the risks which are faced by those who take these dangerous drugs in such circumstances.
"The court must deal severely with these cases and normally a substantial custodial sentence will be inevitable."
The message in that judgment, referred to as HM Advocate v Lee, would have been clear in the mind of a sheriff who last year imposed a ten-month jail sentence on a man, 21, for possession of ecstasy tablets with intent to supply. He was stopped by police coming out of a Cumbernauld nightclub and was seen trying to pass a polythene wrap containing 34 tablets to a woman. Initially, the man was refused leave to appeal against sentence, but his lawyers submitted examples in 2004 where the appeal court, in trafficking cases involving ecstasy, had quashed jail sentences up to nine months and ordered the accused to perform community service work.
With that information, the man was granted leave to appeal. It was also granted in a similar case in which a youth from Dornoch was given six months' detention after he was caught delivering 20 ecstasy tablets as a favour for a friend. It was decided the two appeals would be heard together "with a view to consideration being given to the sentencing issues arising in cases of this kind".
Appeal judges Lords Osborne, Hamilton and Emslie heard a suggestion by the defence that the attitude of the courts regarding ecstasy had been modified since the 1995 judgment of Lord Hope, and that custodial sentences were not appropriate in the two cases. Giving the court's judgment, Lord Hamilton said they were unable to accept the submission. He said general policy considerations discussed in HM Advocate v Lee in respect of sentencing those convicted of dealing in class A drugs, including ecstasy, were "as applicable today as they were when they were pronounced in 1995".
Lord Hamilton said: "Nothing has occurred, in terms either of the potential harm attendant on the abuse of such drugs or of public perception of the evils associated with dealing in them, to justify this court departing from these policy considerations. A custodial sentence is not inevitable, but courts in dealing with such cases will require to bear in mind, among other considerations, the policy clearly set forth in HM Advocate v Lee."
The court felt it was "unnecessary" to attempt an analysis of the three successful appeals in 2004. To emphasise they had been exceptions to a general rule of the very many cases of trafficking, very few were disposed of on a non-custodial basis.
The Cumbernauld man's appeal was refused. The Dornoch youth had his six months' detention cut to four and a half months because the sheriff had not given him a discount for pleading guilty.
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