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Drug mules lose retrospective leniency appeal

4 April 2012

Six drug mules arguing that more lenient sentencing guidelines that have only just come into force should apply to their cases retrospectively have lost their appeal.

“I am very disappointed”, sole practitioner Alured Darlington, who acted for the women, told Solicitors Journal. “In terms of its primary function, which is to do justice, the Court of Appeal has taken a large step backward with this decision and I very much hope that the government will now step in and redress the situation.”

Two of the appellants in R v Boakye and Ors pleaded guilty on the understanding that this would give them a better chance to have their appeal allowed.

Darlington said the case of R v Wilson last month suggested that it was for the benefit of ‘everyone’ that there should be guilty pleas. “Everyone clearly does not include these unsophisticated young women who showed their remorse at an early stage by pleading guilty”, he commented.

The new guidelines issued by the Sentencing Guidelines Council on 24 January came into effect on 27 February. They provide for shorter sentences where drug couriers can show they were coerced into trafficking.

Economic duress and whether a drug smuggler is financially supporting a family or dependents such as elderly relatives will be relevant factors.

Darlington, who lodged the six test cases in February, said not only did the ruling was disappointing for those who pleaded guilty but “it even applied to those who whose appeals were in time”.

If the women had been sentenced just a few weeks later, or in one case only days later, they would have been sentenced under the new guidelines, the sole practitioner said.

He went on: “The court got some things terribly wrong despite the best efforts of our counsel Edward Fitzgerald QC. First they suggested that the Sentencing Guidelines Council intended that the guidelines should operate from 27 February 2012 and not retrospectively, totally ignoring the fact the council had no power to make the guideline retrospective even if it wanted to.”

According to Darlington, only the government could issue explicitly retrospective guidelines but he suggested the courts had jurisdiction to interpret them to this effect too.

The new guidelines replace the so called Aramah guidelines, named after the 1982 House of Lords ruling where Lord Lane laid down minimum terms for offenders convicted of drug supply and smuggling.

Alured Darlington said the Aramah guidelines have long been regarded as “a deterrent policy that had been shown not to work” and that the sentences should have reverted to what was proportionate. The new guidelines merely formalised this, he argued.

He was also concerned that the practical result of the ruling would be a two-tier sentencing regime where some offenders sentenced under the new regime would be released years before others sentenced under the old regime.

In a letter to his MP he said the government should now step in and issue an executive order designed to achieve parity between those two groups.

Now that the litigation has ended, the matter could properly be raised on the floor of the House of Commons, he said.

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Procedures