Leniency for drug mules: not just what they've done but who they are

Being a 'sole or primary care for dependent relatives' is now incorporated as one of the statutory mitigation factors reducing seriousness or reflecting personal mitigation in some recent guidelines on assault, burglary, drugs and dangerous dogs offenders.

The current consultation guideline on fraud closing on 4 October 2013 contains a similar provision so it would appear that this is the format for future guidelines. Perhaps the overarching guideline of principles effecting seriousness (mitigating factors in the assessment of culpability and harm), issued in 2004 could now be extended by inclusion of these words so as to apply to all guidelines and not just recent ones. These are the reasons why.

Failure to be able to care for dependent relatives, particularly children, hits defendants very hard, and even more so if they come from an underdeveloped country where there is no social security, social services or other safety net. Of course in the majority of such cases the family is able to make provision, albeit at a reduced level, but there remains a significant minority where this does not or cannot happen. The defendants in such cases will not only be serving their sentences for their offences but they are sometimes punished further by having to 'witness a death sentence' on their nearest and dearest where they are powerless to help. Effectively such defendants are being sentenced twice for the same offence (See also R v Petherick [2012] EWCA Crim 2214 as to the application of article 8 of the ECHR to the issue).

Early compassionate release

Such a recent case was R v Fascina [2012] EWCA Crim 2473, which unsuccessfully challenged R v Boakye [2012] EWCA Crim 838 as being fundamentally unjust (See Solicitors Journal 2012, No retrospective leniency for drug mules). This held that the new sentencing drug guideline could not apply to those sentenced before the new guideline came into effect on 27 February 2012. Ms Fascina was sentenced in January 2012 which meant that following Boakye she could not benefit from the shorter sentences imposed by the new guideline. But equally the decision in Boakye meant that she could not benefit from the sole or primary carer for dependent relatives provision either. This was important in her case because she was the sole or primary carer for her grandmother in Ghana who relied on her to provide her medication. Ms Fascina's application for leave to appeal her original sentence was dismissed. The grandmother died two weeks after the Court of Appeal decision.

Such hardship could be mitigated if the Ministry of Justice was more prepared to permit early compassionate release in appropriate cases pursuant to section 248 of the Criminal Justice Act 2003. In R v Kyere (unreported 5 June 2013), the applicant had three children, again in Ghana, with no one willing or able to take financial responsibility for them, homeless and begging on the street. The two youngest were found to be suffering from malaria, a killer disease in Ghana, and the eldest from severe boils all over her body attributed to malnutrition. A South African doctor gave a risk assessment and stated that "'all three children were at risk of severe damage to their health or death". Ms Kyere had been supporting all three children, together with her grandmother who had suffered from a stroke, before her arrest.

Ms Kyere had been sentenced in 2011 so again, because of Boakye, she could not rely on the sole or primary care provision for dependent relatives in the new guideline. However she did seek leave both to appeal her original sentence out of time and also made a formal application to her prison governor for early compassionate release pursuant to section 248 of the 2003 Criminal Justice Act. The Court of Appeal dismissed her application for leave to appeal but did direct that the prison should consider her application for early compassionate release. The grandmother died in June 2013. Despite the intervention of the Court of Appeal it took seven weeks, and a judicial review application, before the prison responded to Ms Kyere's application. When it did so it supported the application for early compassionate release but the Ministry of Justice opposed it and the children were only rehoused because of the charitable intervention of a church in the UK.

Although the vast majority of such cases come from developing countries, the importance of the dependent relative provision is not exclusively confined to it. Local authorities are under increasing pressure to seek adoption when they have children in care. In R v F, still ongoing, the applicant serving a sentence of nearly nine years, found that her children's child minding arrangements had broken down and had no choice but to place her children in care. The local council has now obtained a placement of the youngest child with a view to adoption and F has applied for leave to appeal her sentence out of time. The dependent relative provision may be a factor here.

Full picture

The above three cases may be sufficient to show that solicitors and advocates should consider the dependent relative provision with great care when obtaining instructions. It is particularly important that this should be mentioned in interview as a failure to do so may result in subsequent mitigation to that effect being treated with scepticism on sentence.

In her article 'When is a courier not a 'mule'' (Journal of Criminal Law, 2012 76 JCL 444-455) Janet Loveless rightly observes that "it is now incumbent on defence solicitors to provide to sentencing judges as full a picture as possible of background circumstances so that both role and mitigation of drug couriers can be properly assessed. It has to be recognised that many couriers do not disclose their circumstances in the early stages of the judicial process because of disorientation, shame, the need to protect others who were under threat or lack of trust (Sentencing Council Research interviews at pages 4/6). It is therefore vital that defence solicitors are aware of these matters, and find ways to address them, so as to assist courts to arrive at more proportionate sentences than before".

This is quoted in full because sadly mitigation is not always being structured round the new guidelines - with disastrous results. One case where it was possible to correct this on appeal was R v Mildred Teresa de Leon 30 January [2013] EWCA Crim 196 where the Court of Appeal was prepared to accept, with the benefit of new information and the above article, that the defendant's role should have been 'lesser' rather than 'significant' resulting in a reduction of sentence.

For their part judges should be alert not only to consider placing such cases lower in the sentencing range but also in cases of sufficient hardship to place them in a lower category altogether as they are entitled to do (Drug Sentencing Guideline page 7: "In some cases having considered these factors it may be appropriate to move outside the category range.").

In my very respectful submission fairness dictates they should always consider this when faced with a defendant from an overseas country facing 'being sentenced twice' because there is none available to look after their children or other close dependent relative. Indeed it is arguable that the Sentencing Council should place such cases in a category of their own.

Beacon for the future

In subsequent years historians, with a world view rather than a first world view, may struggle to understand how a just and compassionate judicial and prison system, could permit Ms Kyere's children to live unsupported and ill, begging on the streets of Accra, or Ms Fascina's grandmother to die without medical provision. In the same way we now look with amazement and horror at a sentencing culture in this country, of public executions, the treadmill and 'the cat', only 150 years ago.

But history may also regard the Drug Sentencing guideline as a watershed in sentencing policy and as a beacon for the future. This is because, for the first time (apart from the guideline on youths), it was recognised that there could be a group of people (in this case the genuine drug mules), who could be sentenced on the basis of who they were as well as what they had done. Despite a savage increase in a pro victim custody culture this is a very welcome light at the end of the tunnel and recognition that sentencing policy should embrace everybody - victims, defendants and their dependents.

This process can only be accelerated by a willingness to use the sole or primary carer provision for dependent relatives, particularly in the third world, to the full.

Alured Darlington is a solicitor at BSB solicitors (incorporating Hanwell Chambers). He was Legal Aid Lawyer of the Year in 2007 for his work in support of drug mules (Face to face: Alured Darlington).