Advice to the Sentencing Guidelines Council : sentencing for drug offences.

  • Great Britain. Sentencing Advisory Panel
Date:
2010
Catalogue details

Licence: Open Government Licence

Credit: Advice to the Sentencing Guidelines Council : sentencing for drug offences. Source: Wellcome Collection.

    13/64 (page 9)
    possession of illegal drugs.'’ A mistaken belief concerning the type of drug may mitigate culpability. The level of mitigation will depend on factors such as the ‘degree of care’ so that, where only a small degree of curiosity could have revealed the true nature of a drug, any effect would be small. Offence not commercially motivated 37. The extent to which commercial motivation plays a role in offending will vary across drug offences. There will be some offenders who aspire to obtain significant profits and for whom the motivation is primarily commercial: others will be motivated by the need to fund a drug habit or raise funds to pay drug related debts, or be involved with ‘social supply’, such as supply to a specified group of friends without profit (see discussion at paragraph 89 below). 38. With the exception of the guideline relating to production, where the commercial nature of the enterprise is a key determinant of seriousness, the Panel's proposals assume the presence of commercial motivation; its absence should be treated as a mitigating factor. Inducement to supply falling short of entrapment 39. The fact that an offence was committed following the entrapment of an offender by a police officer or agent provocateur is not a substantive defence in English law, although it may be sufficiently fundamental to justify staying the prosecution or excluding evidence.'® In cases where the commission of an offence was encouraged through a lesser degree of entrapment the culpability of the offender may be mitigated. 7 Misuse of Drugs Act 1971, s.28 '8 Loosely [2001] UKHL 53 Summary 40. The factors likely to mitigate a drug offence are: Factors indicating significantly lower culpability: e ——- Mistaken belief of the offender regarding the type of drug e §=- Of fence not commercially motivated e¢ —_|Inducement to supply falling short of entrapment Other considerations: Offering to supply fake drugs 41. In some cases, an offender may dishonestly offer to supply a drug with the knowledge that what will be supplied is not, in reality, the drug offered - for example, supplying talcum powder as cocaine or pills that contain a non-illicit substance instead of ecstasy - which will be charged as offering to supply a controlled drug.'? Under these circumstances, an offender's culpability remains high as there is an intention to supply a substance which the buyer believes to be a genuine, illegal, substance. 42. However, if it can be shown that the substance offered was not harmful, it could be argued that, because no illicit drug is being made available, the level of harm caused, likely or risked is low. 43. The fact that an offer to supply was in respect of a fake drug should normally be neutral for the purposes of assessing seriousness; however, it may be an aggravating factor where the substance was especially potent or a mitigating factor where the fake drug could cause no harm. '9 in such circumstances, a charge of going equipped to cheat (contrary to Theft Act 1968, s.25) may be preferred