No retrospective leniency for drug mules

More lenient sentencing guidelines for drug mules should only apply to cases decided where sentencing takes place after their entry into force in February, the Court of Appeal has confirmed.

The defendant, Patricia Fasicna, had pleaded guilty to drug trafficking on the understanding that this would facilitate her sentence.

As a result her case was decided more quickly and she was given a seven-year prison sentence under the old drug mule guidelines.

Her application for the issue to be revisited  by a five-judge court was brought following an unsuccessful appeal in a separate test case involving six mules, which sought to secure immediate application of the new guidelines in April.

“If she had deferred her plea for a few weeks and then been sentenced under the new guidelines she would have got half that and been more likely to be able to support her mother in Ghana who has had two heart attacks or strokes,” Fasicna’s solicitor Alured Darlington (pictured), told Solicitors Journal.

The Court of Appeal  upheld a previous ruling in R v Boakye that the new guidelines should be applied strictly, irrespective of the circumstances, from the date they became effective.

The new guidelines issued by the Sentencing Guidelines Council on 24 January came into effect on 27 February 2012. 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.

These factors were “largely irrelevant” under the old guidelines but a mandatory mitigation requirement under the new guidelines, according to Darlington.

He went on: “This decision appears likely to have been motivated by a misguided and inaccurate fear of the floodgates and appears to me to be an unworthy reason for not giving justice to sometimes the very poorest and most vulnerable people from the third world.”

“Martin Luther King said that 'an injustice anywhere is  a threat to justice everywhere' - we forget that at our peril,” the 77-year-old solicitors said, before adding: “The Court of Appeal in Boakye allowed itself to be enslaved by precedent. It could and should have distinguished the earlier authority of Graham which forbade all retrospective sentencing and treated the drug mules as a special case.”

Darlington said it might be possible to argue for a sentence reduction under the old guidelines but that this would only be possible in very few cases where there is really substantial mitigation not previously known about.

The appeal court’s only concession to the appellant was that it did not make a ‘loss of time’ order against her nor a costs order against Darlington.

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.

Darlington said the new guidelines merely acknowledged the fact that the Aramah guidelines had failed to work as a deterrent.

He said Spain reduced sentences by ministerial decision in 2010 and called on the new justice secretary Chris Grayling to intervene likewise and show leniency.

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