Drugs and the Law - Chapter 4 - Trafficking Offences

Drugs and the Law

REPORT OF THE
INDEPENDENT INQUIRY INTO THE MISUSE OF DRUGS ACT 1971

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Chapter Four: Trafficking Offences

Introduction

1 Trafficking is a broad term used to describe the illicit trade in drugs. The Misuse of Drugs Act 1971 (MDA) does not itself distinguish between trafficking and non-trafficking offences. The distinction was made later in legislation introduced in 1986. This is now consolidated in the Drug Trafficking Act 1994. The main relevance of designating an offence as a drug trafficking offence is that conviction will attract the confiscation provisions of that Act. Also, if a Class A drug is involved, a third consecutive conviction for a trafficking offence will result in a minimum sentence of seven years custody under the Crime (Sentences) Act 1997.

2 In our discussion of individual offences in this and the following chapter we adhere to this distinction between trafficking and non-trafficking. It is, however, often blurred in practice. For example, although trafficking offences attract high maximum penalties, they are often used to prosecute rather low-level crimes (for example cultivation of a small number of cannabis plants for personal use). Or they may not be prosecuted at all, as in the case of the many cannabis importation cases dealt with by compounding.

3 Trafficking offenders represent:

(a) 16% of all those found guilty, cautioned, given a fiscal fine or dealt with by compounding for drugs offences in the United Kingdom in 1997

(b) 27% of the total found guilty of drugs offences in all courts

It must be borne in mind that the resources needed to detect and prosecute trafficking offences are far higher than for possession offences. The small proportion that they represent of the total of cases dealt with does not necessarily mean that the police and customs fail to give them priority.

What are trafficking offences?

4 The MDA offences that are trafficking offences for the purpose of the 1994 Act are:

(a) production, supply and possession with intent to supply under section 4 (2) or (3) or 5 (3);

(b) incitement to commit such offences under section 19;

(c) assisting in or inducing the commission outside the United Kingdom of an offence punishable under a corresponding law (section 20).

Cultivation of cannabis under section 6 of the MDA is not a trafficking offence. But since 1982 people found growing cannabis plants are now normally prosecuted for production under section 4 (2), which is. Offences against section 8 (permitting certain activities to take place on premises) are also not drug trafficking offences.

5 A variety of offences under related legislation are also trafficking offences. These include: the offences of improper importation, exportation and fraudulent evasion under the Customs and Excise Management Act 1979 (CEMA); various offences relating to money laundering and the manufacture or supply of particular precursor chemicals to be intentionally used in or for the unlawful production of any controlled drug; and offences of conspiracy and attempt to commit any of the trafficking offences.

The 1988 United Nations Convention

6 As its title makes clear, the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, although it considers the problem as a whole [1], is directed specifically against illicit traffic. Accordingly one of the basic features of the convention is the mandatory requirement that the specific activities that constitute or contribute to trafficking be made criminal offences in the law of the parties and those offences must be subject to sanctions which take into account the grave nature of the offences, such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation. Measure such as treatment, education, aftercare, rehabilitation or social reintegration may be provided but only in addition to, not instead of, such sanctions.

7 There is, however, an exception for appropriate cases of a minor nature. Where these are concerned, non-punitive sanctions may be used as alternatives, not in addition, to penal sanctions. The convention appears therefore to recognise a category of minor trafficking offence where it may be appropriate to use alternatives [2] to conviction and punishment. The convention also reserves the drafting of the offences to the domestic law of individual countries and provides that offences shall be prosecuted and punished in conformity with that law. The convention therefore allows some room for manoeuvre albeit far less than for non- trafficking offences.

Penalties

8 The maximum penalties, graded according to the Class of drug involved, are the same for all the MDA trafficking offences except those against section 20. (See
Table 4.1).

Import/export

9 Importation and exportation are prohibited under section 3 of the MDA unless there is an exception under regulations made under section 7 or a licence from the Secretary of State. But the MDA contains no specific offence of contravening that prohibition. There is in fact no offence of drug-smuggling as such Act. The relevant offences are contained in and prosecuted under CEMA, under which it is an offence to import or export anything which is prohibited under any enactment, including the MDA.

Table 4.1 Maximum penalties for trafficking offences

10 The offence of improper importation is set out in section 50 of CEMA and of exportation in section 68. Section 170 of CEMA creates further offences as follows:

(a) knowingly acquiring goods subject to a prohibition on importation or exportation (section 170 (1) (a));

(b) being knowingly concerned in various activities designed to evade such a prohibition (section 170 (1) (b); and

The provision most commonly used by H.M. Customs and Excise to offences is section 170 (2) because it is the most widely drawn offence.

11 Offences under CEMA are almost invariably charged and prosecuted by H.M. Customs and Excise, not by the police and Crown Prosecution Service. If the police wish to bring charges under CEMA they need to obtain an order from the Commissioners of Customs and Excise under section 145. The Association of Chief Police Officers of England, Wales and Northern Ireland (ACPO), in their evidence to us, suggested that there should be a separate offence in the MDA and that all the drugs offences should be consolidated into one Act. The result would be that all importation and exportation offences would be prosecuted under the MDA and it would be immaterial which law enforcement agency was involved in the investigation.

12 We were assured by H.M. Customs and Excise that where it is appropriate for the police to prosecute importation offences the need for them to proceed under CEMA presents no practical difficulties. We doubt, however, whether the police often prosecute under CEMA (there appear to be no statistics). It may therefore happen that, in cases displaying similar sets of circumstances, H.M. Customs and Excise will prosecute for a CEMA offence whereas the police will refer their cases to the Crown Prosecution Service for prosecution of an offence under the MDA - probably possession with intent to supply or, in cases where two or more persons are involved, conspiracy to supply the controlled drug.

13 A number of offences under the MDA (e.g. supply, possession, and production) are subject to section 28 of that Act. This provides defences relating to the extent of the defendant's knowledge of facts necessary for the prosecution to prove e.g. that the substance involved was in fact a controlled drug. But section 28 does not apply to CEMA offences. The probable reason for this is that the definition of an offence committed contrary to CEMA implies something about the state of mind of the accused at the moment he committed the offence. The offences of importation and exportation have to be committed with intent to evade duty or a prohibition on importation or exportation. The offence under section 170 (2) is being knowingly concerned in the fraudulent evasion of the prohibition. But the upshot is that two cases, on identical facts, can lead to two different results depending on whether the accused is charged under the MDA or CEMA. This is because, under section 28 of the MDA, the burden is on the accused to prove (on a balance of probabilities) that he neither believed, nor suspected, nor had reason to suspect, that he was handling a controlled drug of some description. By contrast an offence under section 170 (2) of CEMA requires the prosecution to prove that the accused (a) knew that he was concerned in a smuggling venture and (b) he knew that he was smuggling goods of a description which was banned from importation.

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Import and export offences under CEMA: the main facts
1,741 people were dealt with for import or export offences in 1997. This represents a fall of 30% since 1990, when the equivalent figure was 2,478. The drug involved was most commonly cannabis (1,189 offenders or 68% of the total). Other drugs concerned were cocaine (417 offenders), heroin (45), amphetamines (36), and ecstasy-type (49). The percentage of cases dealt with by compounding [1] has declined recently from 48% in 1990 to 31% in 1997.
There has been a steady rise in the proportion of those found guilty by the courts who were sentenced to immediate custody from 60% (777 persons) in 1990 to 79% (940 persons) in 1997. The average sentence length of just over 5 1/2 years was longer than for any other trafficking offence. The proportion sentenced to over seven years rose from 20% in 1990 to 37% in 1997.
The amount of herbal cannabis and cannabis resin seized by HM Customs rose from 24.9 tonnes in 1990 to 76.9 tonnes in 1997. The amount of seized heroin rose from 576 kg to 1,747 kg; of cocaine from 561 kg to 2,073 kg. In 1990 36,000 doses of ecstasy were seized and almost one and a half million doses of ecstasy-type drugs in 1997.
Note: l. A monetary penalty offered to the offender in lieu of prosecution in cases involving amounts of cannabis of 10 grams or less intended for personal used.
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Our conclusions on import/export offences

14 We do not regard the present fragmentation of the law between two Acts, the MDA and CEMA, as satisfactory. It has been suggested to us, though we have received no specific evidence on the matter, that it makes cooperation between the police and the customs more difficult than is necessary or desirable. The police can hardly be encouraged to bring prosecutions for smuggling offences under CEMA by the requirement to seek the permission of the Commissioners for Customs and Excise first. Moreover, it is confusing and potentially unjust to have different offences and defences available under the different Acts even though the circumstances may well be much the same and all that differs is the enforcement agency and the statute under which the accused is charged.

15 Ideally we should have liked to begin with a clean sheet and devise a more consistent and logical framework. That might have enabled us to meet the wish of ACPO and the National Crime Squad to see a drug smuggling offence in the MDA. However, such a result might affect the powers currently available to H.M. Customs and Excise in ways neither foreseen nor intended. Reluctantly we have concluded that it would be impracticable within the constraints of time and of resources upon us to devise a workable alternative to the present regime. We cannot be sure that any recommendations we might make would not have an unacceptable impact elsewhere, particularly on the operation of CEMA. Both areas of the law (drugs and importation) are complex and the present system at least ensures that they interlock in the area of drugs without making either set of laws unworkable. However, because the separation of statutes and enforcement agencies is unsatisfactory and confusing, we recommend that the Government set up a detailed and in-depth examination of this area.

Production

16 Under section 4 (2) or (3) of the MDA it is an offence to produce or to be concerned in the production of a controlled drug unless there is some exception in the regulations made under section 7. 'Produce' is defined in section 37 (1) as meaning, in reference to controlled drugs, producing by manufacture, cultivation or any other method and 'production' has a corresponding meaning. The offence covers a broad range of activities, from small-scale manufacture in home laboratories to factory scale production of synthetic drugs. It can also embrace very low-level acts of production for personal consumption. Acts of conversion or modification of drugs for the purpose of facilitating self-administration are caught by this definition. Thus adding citric acid to base heroin to make it injectable is production, and pharmacists who sell citric acid to addicts might be vulnerable to accusations that they were aiding and abetting, or inciting the offence under section 19. Converting cocaine salt into crack by adding bicarbonate of soda is also production. So is stripping cannabis leaves from the stalk.

17 Cultivation of any kind and on any scale is also production. It may take the form of a few home grown plants in pots or commercial growth in greenhouses or fields. All are covered by the same offence. As already noted, cultivation of cannabis contrary to section 6 of the MDA is not a trafficking offence, although an offence of producing cannabis under section 4 is. This is not a mere technicality because conviction for an offence under section 4 may be followed by confiscation of assets under the Drug Trafficking Act 1994, which does not apply to offences under section 6.

18 The numbers of production offenders are dominated by those dealt with for growing cannabis. The figures do not distinguish cases on the basis of the numbers of plants involved. The number of offenders has fallen in recent years although the proportion given custodial sentences has risen. The proportion receiving one year or less has been stable. The use of cautioning for this offence has fallen but remains significant.

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Production offences: the main facts
4,168 persons were dealt with for production offences in 1997. This represents a rise of 663% since 1990, when the equivalent figure was 629. In 1997, 92% or 3,828 had committed offences involving the production of cannabis. Between 1990 and 1997 over 90% have been dealt with for production of cannabis. In 1990, 12% of offenders were cautioned and 25% in 1997.
The proportion of those found guilty who were sentenced to immediate custody more than doubled between 1990 and 1997; 559 or 18% were given such sentences in 1997. The average sentence length was just over 14 months in 1997, the shortest for any trafficking offence. Only 3% received more than 5 years in 1997.
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Our conclusions on production

19 We make no recommendations on the various definitional problems that have concerned the courts in the past and may do so again. Our main concern lies in the wide scope of the offence and in particular its embracing all forms of cannabis cultivation from the small domestic to the large-scale commercial. This seems to have been arrived at almost by accident. The original purpose of the MDA was quite clearly to deal with cannabis cultivation under section 6, which creates the specific offence of cultivation of cannabis. A change in the law in 1977 meant that cultivation of cannabis in almost all its forms came under the definition of production. This does not seem to us sufficient reason for all cases of cannabis cultivation to be treated as production offences, especially when section 6 remains on the statute book. The subsequent enactment of the drug trafficking legislation has exposed people who grow a few plants for their own use to the full weight of the confiscation machinery. They stand to lose their assets, including their homes. This seems to us disproportionate even if in practice the law is unlikely to be applied in such cases.

20 We recommend elsewhere [3] that a distinction, implicit in the 1988 United Nations convention, be drawn between more and less serious cases of cultivation of cannabis. The less serious cases, involving small numbers of plants for personal use, would be prosecuted under an amended section 6, which as now would not be a trafficking offence. The more serious offences, particularly of large-scale commercial growing where confiscation of proceeds might well be appropriate, would continue to be prosecuted as production offences under section 4.

Supply

21 Under section 4 (3) it is an offence, unless there is a relevant exception under the regulations made under section 7, to supply a controlled drug to another. It is also an offence to offer to supply, or to be concerned in supply or in making an offer to supply. Under section 37 (1) 'supplying' includes distributing but is not otherwise defined.

22 Difficult issues have been considered by the courts as to what does or does not constitute supply. Existing law has defined supply as including a transfer of physical control of a controlled drug to another with the intention of enabling the recipient to use that drug for his own purposes. Thus

(a) to hand drugs to another for safe keeping would not be supply, since the intention is not that the recipient should use them for his own purposes but that he should give them back at a later stage; and

(b) the supplier does not have to make a profit or obtain any reward from the transaction for it to constitute the offence of supply. Thus a person who buys drugs and distributes them to friends for consumption at a party is guilty of supply even if he makes no attempt to recover from his friends the money he originally paid for the drugs. Even handing round a reefer from person to person would probably be supply for the purposes of the MDA.

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Supply offences: the main facts
5,864 offenders were dealt with for supply offences in 1997. This represents a rise of 273% since 1990, when the equivalent figure was 2,151. The drugs involved in 1997 included cocaine and crack (323 offenders), heroin (1,040), methadone (85), LSD (64), ecstasy-type (479), amphetamines (916 and cannabis (2,853 or 49%). In 1997, 17 people were cautioned for supplying cocaine, 31 for heroin, 10 for ecstasy, 45 for amphetamines and 390 for cannabis (this was 14% of those dealt with for supply of cannabis).
Of those found guilty by the courts the proportion sentenced to immediate custody rose from 41% (823 persons) in 1990 to 58% (3,084 persons) in 1997. The average length of prison sentence was nearly two and a half years in 1997 with 57% of the sentences for more than one year.
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23 Other European countries have differentiated in their law between the different kinds of supply, most commonly by providing for aggravating factors that characterise the most serious forms. In Italy, gifts and free exchanges of drugs are categorised as possession for personal use and are subject to administrative sanctions only. So is acquisition, including purchase of drugs by some members of a group on behalf of the group, provided the purchasers are also consumers and that the distributor is not in fact retailing. Purchase by one member on behalf of the whole group is thus a penal offence on the grounds that a transfer or retailing rather than sharing is involved and there is more risk of that transfer leading to the spread of drug consumption.

24 In Spain, gifts of drugs and obtaining them for group use may or may not be an offence depending on the circumstances. The trend of recent legal developments has been to regard these activities as falling outside the range of trafficking if they lead to no risk of dissemination of drugs to people not dependent n them. Thus common funds set up by addicts for the purchase of drugs have been declared as not a matter for prosecution.

Our conclusions on supply

25 The present offence of supply does not distinguish adequately or satisfactorily between circumstances that would ordinarily be regarded as supplying and those that would not. It catches some activities which it is highly misleading to regard as 'trafficking' in any serious sense or at all. These problems arise because the activities of possession and supply so often go together and the boundary between the two is blurred. Small-scale consumption among friends may well involve supply and indeed supply for gain but despite the fact that each member of the group shares a common objective, it is usually the member of the group who actually purchases the drug on behalf of the others who is liable to prosecution. On the other hand, someone who makes it his living and his business to traffic in drugs cannot be charged with just one offence that embraces a course of conduct (e.g. repeated acts of supply, perhaps over weeks or months).

26 Equating these very different circumstances seems to us to confuse some very serious issues. The current definition of supply does not distinguish between acts of different gravity e.g. supply between friends, or for gain, or as part of an organised criminal group supplying in substantial quantities. We recognise the difficulty of defining 'supply' in terms which will embrace situations that should be punished under section 4 (3) but which allow other situations to escape the scope of that provision. Nevertheless the attempt should be made. It brings the law into disrepute if someone in a social group who acquires drugs on behalf of the rest is taken to be a supplier for the purposes of the law. The context is very different. To meet these difficulties we make the following recommendations.

27 There should be a separate offence of dealing, the main ingredient of which would be the pattern of activity of illicitly transacting business in drugs. The offence should be capable of being charged as a continuing offence so that the prosecution can show that the defendant has been dealing over a period of time by putting before the court evidence of the true scope and nature of his activities. This used to be possible under the present law by alleging sample or specimen counts but changes made by successive Criminal Justice Acts in 1991 and 1993 have made it difficult for the courts to sentence for more than isolated acts of supply. Although such an act may have been part of a continuing pattern of behaviour, the court must sentence the defendant on the basis of what has been proved against him by counts on the indictment or admitted by him.

28 We recognise that the position can to some extent be ameliorated by the prosecution placing two or more single charges on the indictment to the extent necessary to bring out the regular pattern of offending that exists. It may also be possible to allege a conspiracy if two or more persons were involved in supplying the drugs. There may, however, be difficulties about overloading indictments; in any case the offences are still technically separate and establishing the true extent of a defendant’s criminal activity over a given period of time may be difficult if not impossible. We therefore recommend a separate offence of dealing as the best way of overcoming the difficulties. We further recommend that the new offence be designated a trafficking offence for the purposes of the Drug Trafficking Act 1994.

29 Those whose acts of supply (or possession with intent to supply) do not involve Class A drugs and are more akin to joint possession for personal use should be enabled to enter a defence that takes them out of the ambit of trafficking offences. They would remain liable to proceedings against them for possession (and indeed for trafficking offences if the drug were one in Class A).

30 We do not recommend that there should be no response at all from the criminal law to acts of group supply. Far from it, since for most people they will be the means of first introducing them to drugs. But the behaviour is different from dealing and the law should recognise the distinction. We recommend accordingly that it should be a defence for a person accused of supply or possession with intent to supply to prove that he was a member of a small social group who supplied or intended to supply a controlled drug (other than a drug of Class A) to another member or other members of that group believing that he was acting, or had acted, on behalf of the group, which shared a common intention to use the drug for personal consumption. This defence would only apply where the court was satisfied that the amount or value of the controlled drug was consistent with personal use within the group concerned.

31 We recognise that we may be accused of inconsistency in excluding users of Class A drugs from the new defence. In fact we are adhering to the principle that the law on drugs should reflect the relative dangerousness of the drug concerned. Class A drugs may be so damaging that their supply even in a social context must be discouraged to the maximum extent possible. We think it right that those prepared to pass Class A drugs on to others should know that, whatever the context, they face the severest penalties that the law lays down.

Possession with intent to supply

32 Under section 5 (3) of the MDA it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4 (1) (which makes it unlawful to supply or offer to supply a controlled drug unless there is an exception of some kind under regulations). The prosecution must prove that the accused was in possession of drugs; that those drugs were controlled drugs; and that he intended to supply them to another.

33 According to section 37 (3), for the purposes of the MDA the things which a person has in his possession shall be taken to include any thing subject to his control which is in the custody of another. Therefore someone who leaves drugs with someone else while looking for likely customers will have no defence against a charge of possession with intent to supply. In practice, intent is proved by quantities incompatible with personal consumption, together with any indications of dealing such as records of transactions or unexplained amounts of money. The offence enables action to be taken against people discovered with large amounts of drugs on them but not in the act of supplying them to others.

34 The pattern of responses to offences of possession with intent to supply is close to that for offences of supply. They can thus be seen as complementing each other, the police and courts seeing possession with intent as containing all the features of a supply offence except the act of supply itself. The number of offenders is greater than the numbers of supply offenders, probably because the act of supply does not need to be proved.

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Possession with intent to supply: the main facts
8,228 persons were dealt with in 1997. This represents a rise of 300% since 1990, when the equivalent was 2,751. The drugs involved in 1997 included cocaine and crack (504 offenders), heroin (1,033), methadone (30), LSD (132), ecstasy-type (843), amphetamines (1,672) and cannabis (4,476 or 54% of all offenders). 6% of offenders were cautioned; the proportion of cannabis offenders cautioned was 8%.
The proportion of those found guilty by the courts who were sentenced to immediate custody rose from 41% (1,114 persons) in 1990 to 57% (4,404 persons) in 1997. The average sentence length in 1997 was just under two years. 50% were given sentences of over one year.
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Our conclusions on possession with intent to supply

35 We make no recommendations on the specific offence of possession with intent to supply. If it were not there, it would be possible for people found with large amounts of drugs in circumstances that clearly indicated supply to avoid severe punishment on the grounds that no actual transfer of the drugs could be proved. It is therefore a useful aspect of United Kingdom legislation, not found as far as we know elsewhere, and gives added strength to the law's armoury against supply. The offence should therefore be retained, though it should attract the new defence that we recommend at paragraph 30 above.

Our recommendations on maximum penalties for trafficking offences

36 The maximum penalties for trafficking offences laid down in the MDA and related legislation are among the most severe in Europe. A (necessarily rough) comparison of United Kingdom maximum penalties for trafficking offences with those in five other European countries is given in the following table. As can be seen, the United Kingdom is particularly out of line in its maximum penalty for trafficking in cannabis, largely because of its classification as a Class B drug.

Table 4.2 Maximum penalties for trafficking offences in EU states

Country Maximum penalty in years Maximum penalty in years
(hard drugs) (soft drugs, including cannabis)

France           30 [1] to Life [2]                      5 [3]
Germany        minimum 1 to maximum 15 [4]               5
Italy                 30 [5]                             6
The Netherlands       12 [6]                             4
Spain                 20 [7]                             3
United                Life [8]                           5 [9] to 14 [10]
Kingdom

Notes.
1. Involved in organised group trafficking
2. Directing international organised drug trafficking
3. Incitement by small scale trafficking to adult
4. Supplying drugs to minors
5. Aggravated supply of hard drugs
6. Import of hard drugs
7. Supply with 2nd degree aggravating features
8. Trafficking in Class A
9. Trafficking in Class C
10. Trafficking in Class B, which includes cannabis

37 There is a respectable argument for prescribing maximum penalties at a level which allows the courts to reflect in the actual sentences passed the wide range of variation of circumstances likely to be encountered. Nevertheless it seems to us that the maximum penalties on indictment in United Kingdom law are unreasonably high. Life imprisonment is excessive for almost any conceivable drugs offence. Nor are we aware that it has ever been imposed. Thus the discrepancy between maximum penalties and sentences actually passed is so great as to risk bringing the law into disrepute. We therefore prefer a set of penalties that is credible and not disproportionate; that is not out of line with the rest of Europe; still enables the courts to pass severe sentences for the offences at the top end of the scale of seriousness but is not too different from the sentences they normally pass.

38 It is difficult and to some extent arbitrary to devise a scale of maximum penalties which achieves these objectives and still provides a major disincentive to would-be traffickers, especially given the reduction in the maximum penalties for trafficking in cannabis that follow from our recommendation to transfer it to Class C. In fact, we propose below an increase in the maximum penalty for trafficking in Class C drugs to take account of this.

39 It should also be borne in mind that confiscation measures are probably at least as important as fines and imprisonment in deterring trafficking. Failure to meet the requirements of a confiscation order may lead to substantial additional terms of imprisonment in default (of up to ten years depending on the amount involved). Only if such measures are severe and effective will drug traffickers be prevented from realising the profits that may otherwise make a long prison sentence seem a price worth paying. We have taken account of this extra dimension in arriving at our recommended maximum penalties, which we set out in the following table alongside the penalties prescribed in the present law. This table covers only penalties for MDA and CEMA offences. The other drug trafficking offences, such as money laundering and illicit traffic in precursor chemicals, should be separately considered and, if necessary to achieve consistency, their penalties brought into line.

Sentencing guidelines

40 We are satisfied that the maximum penalties recommended above will continue to leave the courts with discretion to sentence subject to the facts of the case. The law will retain the flexibility necessary to enable the courts to respond appropriately to the great variety of circumstances met by them. There are, however, some aggravating circumstances to which we believe the courts should have consistent regard.

41 To assist the courts to achieve these objectives with consistency, we believe that sentencing guidelines should be laid down for drugs cases generally and in particular for drug trafficking offences. Sections 80 and 81 of the Crime and Disorder Act 1998 require the criminal division of the Court of Appeal to consider framing guidelines for offences of the relevant category and in doing so to have regard to the views of the Sentencing Advisory Panel. We recommend that drugs offences be designated as a relevant category of offences and that guidelines be proposed by the Panel for consideration by the Court of Appeal.

Table 4.3 Maximum penalties on indictment [1] for trafficking offences: our recommendations compared to present law

Importation, production, supply, possession with intent to supply

New offence of dealing

As for our recommendations for importation, production, supply,
and possession with intent ot supply
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Section 20 [2]

14 years or an unlimited fine or both
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Incitement

At present the maximum penalties for incitement are the same as
for the offences incited. We recommend no change
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Notes:

1. Assisting in or inducing the commission outside the United Kingdom of an offence punishable under a
corresponding law. The maximum penalty applies irrespective of the Class of the drug involved.

2. Assisting in or inducing the commission outside the United Kingdom of an offence punishable under a
corresponding law. The Class of the drug involved is not relevant.

42 We do not wish to pre-empt the work of the Sentencing Advisory Panel or the Court of Appeal. We do, however, wish to indicate the aggravating factors that should be included in the guidelines when they are drawn up. Some of these are so important that we have considered creating separate offences to ensure that the seriousness of certain situations is properly reflected in the sentences handed down. We have particularly in mind the supply of drugs to children and young persons, the employment of minors in drug trafficking, the introduction of drugs into schools, prisons and psychiatric facilities, and the creation of public nuisance through drugs activities.

43 On balance we have concluded that the better approach is to retain the present fairly broad formulation of individual offences, leaving their application in particular contexts to the discretion, subject to guidelines, of the courts. We recommend that among the factors to be taken account of in such guidelines should be:

i) the involvement in the offence of an organised criminal group to which the defendant belongs;

ii) the use of violence or firearms by the defendant;

iii) whether drugs were supplied to children or young persons;

iv) whether children or young persons were employed to assist in the commission of the offence or related offences;

v) whether the offence took place on or in the vicinity of schools, psychiatric facilities, prisons or any other institution or facility, designed to meet the needs of the young or vulnerable;

vi) whether the commission of the offence was, or contributed to, a public nuisance over and above the ingredients of the offence itself (e.g. if committed in a public place to the annoyance or intimidation of members of the public other than the offender and his victim).

Confiscation

44 Confiscation is important for several reasons. First, it is a recognised and established principle that offenders should not benefit from their crimes - an effective confiscatory mechanism ensures this. Second, by stripping the offender of the proceeds of his criminal activities in addition to any other penalty, it provides a major deterrent to further crime by him and others. Third, it prevents the proceeds of organised crime from being reinvested so that, even if the penalty of the law falls on a subordinate (for example, a courier) or a middleman, the main organisers may still be frustrated by being deprived of any proceeds. The life blood of drug trafficking is cash flow, and the aim of the confiscation legislation which we support is, by extracting tainted property from offenders, to prevent their reinvestment in further drug trafficking or other forms of criminal activity.

45 An important feature of trafficking offences is that conviction may be followed by orders for confiscation of assets under the Drug Trafficking Act 1994. Under this Act the court is required to assume that any property held by the defendant at the time of his conviction or transferred to him at any time in the previous six years is payment or reward for drug trafficking unless that assumption is disproved by the defendant or there would be a serious risk of injustice in allowing it to stand. The standard of proof that applies is the civil one of the balance of probabilities and not the criminal law standard of beyond reasonable doubt.

46 The following other main features of the 1994 Act may be noted:

i) What is to be confiscated are the proceeds not the profits of the trafficking. Thus the offender cannot deduct expenses incurred as part of his drug trafficking activities.

ii) It is irrelevant whether the trafficking took place in the United Kingdom or abroad.

iii) Special provisions apply enabling confiscation to proceed despite the death or absconding of the accused.

iv) Various offences are created, including concealing, disguising, transferring or removing the proceeds of drug trafficking.

v) Gifts made by the defendant may be included in the amount ordered by the court to be recovered. So, for example, money given to a wife or husband towards the purchase of a house may lead to confiscation of that part of the house's value judged to stem from the gift.

vi) Enforcement of confiscation orders is either through the magistrates' courts fine enforcement machinery or through the appointment by the High Court of a receiver with powers to seize, realise and manage the defendant's assets.

vii) Under Part II of the Act, a customs or police officer can seize money being imported or exported where there are reasonable grounds to suspect that it is connected to drug trafficking. For the purposes of Part II such cash can be forfeited and condemned without any conviction for a drug trafficking offence in connection with the money.

47 The evidence strongly suggests that the present system is not as effective as it should be. The number of confiscation orders rose steadily from 203 in 1987 to over 1,000 in 1991. In 1995 they reached a peak of 1,562 but in 1997 there was a 6% fall to 1,466. More significantly the total amount ordered to be confiscated almost halved in 1997 as compared to 1996, from £10.5 million to £5.6 million. This is the lowest figure since 1991. The average amount ordered to be confiscated also fell in 1997, by over a half from £6,725 in 1996 to £3,834. This is the lowest ever amount. Seizures by customs or police officers of money being imported or exported took place in 619 cases in 1997 although the cash was returned in the great majority of them. £2.9 million was ordered to be forfeited by the courts.

48 Professor Michael Levi has prepared for us an assessment of the effectiveness of the present law which more than confirms our impression that it is not being implemented well. As he says in his report 'Administration of confiscation orders remains a mess, inasmuch as magistrates' courts are not the ideal body for dealing with devious, high level international manipulations...' He notes also that when confiscation actually occurs, the values are usually substantially less than the value of the amount initially frozen because, among other reasons, some assets presumed to exist cannot be found or because it is not possible to convince a judge that there was really any link between the assets and the crime. He goes on to say ‘When assessing the overall effect of asset confiscation, the stark gap between guesstimates of money-laundering volumes and confiscation orders made, let alone actual confiscation effected, is evident...’

49 Professor Levi observes that during the 1990s the sums confiscated in up to half the cases in which orders were made were of £1,000 or less, which suggests either that few top traffickers are convicted or that, where they are convicted, few realisable assets can be found. It is this sort of frustration that gives impetus to recommendations of the recent Home Office consultation paper [4].

50 The Home Office consultation paper contains a package of no less than 18 measures designed to improve the enforcement of confiscation orders. A further five recommendations are made for strengthening the existing law in other ways. In addition, the working group proposes a civil law procedure, in connection with which it makes a further 15 recommendations. Under this procedure confiscation would be sought of the assets of persons who have not been convicted of an offence but whose assets can be shown on the balance of probabilities to have come from drug trafficking. The working group suggests that a new national confiscation agency be considered with the remit of overseeing the new civil forfeiture system, of enforcing confiscation orders made by the higher courts under the existing criminal law system, and assisting other agencies in seeking confiscation orders in major cases.

51 We doubt whether the case has been made out for confiscation of assets under civil law procedure, at least at this stage. Such provisions are already part of the law in the United States and the Republic of Ireland. They may be a useful source of financing law enforcement services but this aspect has attracted criticism in the United States from a former Attorney General [5] among others on the grounds that it sets up a conflict of interest between 'economic self-interest and traditional law enforcement objectives'.

52 The long-term effect of such measures on drug trafficking is less well proven. Indeed it is a complaint frequently made by commentators that the United States system actually benefits drugs trade organisers, who can buy their freedom through the civil confiscation machinery while subordinate suppliers bear the full brunt of the criminal law. Our fundamental objection, however, is that so radical a departure needs more justification than the disappointing results shown so far in operating the present criminal law system. We therefore take the view that the first priority is to strengthen and make maximum use of the existing criminal law procedures.

53 At present, except where a receiver is appointed by the High Court, the magistrates' courts are responsible for recovering the assets named in a confiscation order. They may find themselves called upon to enforce an order in an amount of several million pounds with a default term of up to ten years. These are amounts and sentences wholly inconsistent with the maximum penalties that a magistrates' court can impose on conviction, and we doubt whether they are the appropriate jurisdiction for the task. We therefore recommend that the responsibility for enforcement should lie with the crown court not with the magistrates' courts. This will enable the same court as made the order, and often the same judge, to oversee its implementation, including referring it in suitable cases to the High Court for the appointment of a receiver.

54 As far as time to pay is concerned, the Home Office consultation paper suggests that the courts should be required to order either immediate payment or payment within six months. We think that this is insufficiently flexible. We agree that a time limit for payment should be set and that it should not be possible to leave this open as at present. But the limit set should be that which seems reasonable to the court having looked into the circumstances and heard and tested the arguments of prosecution and defence. There may be circumstances where the realisation of assets is likely to take longer than six months.

55 Subject to our recommendation to transfer all enforcement responsibility to the higher courts, and to our proposals on time limits for payment, we endorse the recommendations in the Home Office consultation paper for improving the effectiveness of the present system. Several of those recommendations would, however, be overtaken by our recommendations because the consultation paper envisages enforcement responsibilities remaining with the magistrates' courts. Many of the recommendations in the consultation paper are therefore either unnecessary or in need of adaptation to fit the needs of the higher courts.

56 These changes would represent a substantial change to the criminal law and more than justify the setting up of a new national confiscation agency, as recommended by the Home Office working group. The case for the agency does not in our view depend on the introduction of a new civil law procedure. The arguments for that might be reconsidered once the amended criminal law enforcement machinery, overseen by the new agency, has had the opportunity of operating to its full potential for some years. In the meantime, we recommend that the new agency be set up with the overriding remit of ensuring that the present criminal confiscation machinery, reformed as we propose, achieves full efficiency.

57 We stress, however, that if full efficiency is to be achieved a considerable investment in recruitment and training of people with the requisite skills will be needed in most branches of the criminal justice system, in particular the police, prosecution, and courts (including the judges). We sense that at present there is widespread lack of enthusiasm for pursuing confiscation as a response to offending because of the complexity of the law and of the methods that offenders resort to in order to hide away their ill-gotten gains. The police must be adequately resourced and soundly trained in the necessary financial investigative skills to counteract these methods. The prosecution and the courts must equally be made more knowledgeable about the means to be employed to trace assets, and be prepared to direct the efforts of the police where necessary. This is difficult and time-consuming work. The police may be reluctant to divert resources to it unless the need to give it priority is properly recognised, both by the Government in allocating resources and in the performance indicators set nationally for the police. At present these appear to treat all supply offences equally, thus encouraging the police to go for a greater number of easy targets rather than a small higher level cases.

Forfeiture

58 Section 27 of the MDA enables the court to order the forfeiture of anything shown to be related to the offence of which the defendant has been convicted. It applies to all MDA offences, not only the trafficking ones. It is far more narrowly drawn than the confiscation powers under the Drug Trafficking Act 1994. It may nevertheless be useful in minor cases, especially as it is easier to operate than the powers under the 1994 Act. We have been told that its implementation would be improved if the following changes are made:

a) extension of the section to apply to houses, land and other real property, which the courts have decided are outside its scope;

b) its extension to overseas property, whether within the jurisdiction of the United Kingdom courts or not;

c) its extension to cover property shown to the court's satisfaction to relate to other drug trafficking or intended to be used in connection with such trafficking;

d) amendment of the section in order to clarify its relationship to section 43 of the Powers of Criminal Courts Act 1973.

59 We agree that it should be possible for the courts to order the forfeiture of property other than land seized by the police which was clearly about to be used in the commission of a further offence (the second limb of paragraph 58 (c) above). We are not in favour of amending the section in other ways since that seems to us to risk overelaboration in what is a relatively straightforward area, suitable for simpler cases that do not require the full weight of the confiscation machinery. To go further risks duplication of and confusion with that machinery.

Precursors

60 Part II of the Criminal Justice (International Co-operation) Act l990 was passed to enable the United Kingdom to meet its obligations under the 1988 United Nations Convention. The Act lists the main chemicals (known as precursors) that can be used to manufacture illicit drugs. These are subject to various controls designed to minimise the risk of their being obtained by criminals. Manufacture or supply of the listed precursors knowing or suspecting that they are to be used in or for the unlawful production of a controlled drug is, under section 12, a trafficking offence for the purpose of the Drug Trafficking Act 1994. Section 13 enables regulations to be made governing notification of exports, record keeping and the supply of information. It is an offence to fail to comply with the regulations or to give false information in an attempt to comply with them. In addition, there exists a voluntary scheme by which companies are encouraged to cooperate with the police and to notify them of requests for the supply of chemicals that may be used in the production of controlled drugs.

61 We have considered proposals put to us for strengthening this machinery. These are essentially directed at putting the present voluntary scheme on a statutory and compulsory basis. This would entail adding to the number of chemicals listed as precursors in the 1990 Act and requiring companies to notify the police of all orders for them above specified levels. We can see the force of this suggestion in principle but do not believe that it would be effective in practice. There are innumerable chemicals which may be used in drug production and most if not all of them have legitimate uses. The police would therefore be likely to be swamped with meaningless notifications. We are not persuaded that an extension of the law in the direction suggested would work and make no recommendation on the matter.

Footnotes:
1. Sec paragraph 15 of Preamble to the Convention.

2. Paragraph 3.108 of the Official Commentary states: ‘...bridges between the criminal justice system and the treatment system might. ..be envisaged at. ..the prosecution stage (for example, conditional discontinuation of criminal proceedings under condition of attending a treatment programme; treatment order pronounced by a prosecuting magistrate in France) or at the stage of enforcement of a prison sentence (transfer from prison to a treatment institution or therapeutic community in certain circumstances.)'

3. See Chapter Seven, paragraph 40.

4. Home Office Working Group on Confiscation, ‘Third Report: Criminal Assets, November 1998

5. Richard Thornburgh, quoted in E. Blumenson and E. Nilsen, 'Contesting government’s interest in drug cases', Criminal Justice (Winter 1999), 4-10, as saying 'it's now possible for a drug dealer to serve time in a forfeiture-financed prison after bring arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.’

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