Drugs

Modern Slavery and Drug Offences

Can Modern Slavery be a defence to drug dealing offences?

The short answer is, ‘it depends’ - read on!

Section 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation (for over-18s) or as a direct consequence of slavery or exploitation (for under-18s).

The latter test, for children, is less difficult to establish. It is a defence similar to duress.

It can, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring. The government’s guidance on this can be found here.

What else is Modern Slavery a defence to?

The Modern Slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.

It can’t be used for serious crimes like murder, manslaughter, kidnapping, piracy, serious violence, firearms offences, robbery, burglary, arson, criminal damage, most sexual offences, or modern slavery offences themselves. There are other offences to which the defence does not apply.

 It can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, theft, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.

Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can't tell anyone in case they are arrested and punished.

 What needs to be proved?

The defence requires several things, depending on a person's age. In both cases, they need to be a victim of slavery or exploitation.

 Those over 18 rely on s.45(1), where they are not guilty if:

 1) The crime is committed because they are made to do it

 2) They are made to do it for some reason connected to the slavery or exploitation

 3) A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.

A person under 18 relies on s.45(4), where they are not guilty if:

1) The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and

2) A reasonable person, with the same characteristics, would have done the same.

The defence for under-18s is less difficult to establish, reflecting the increased vulnerability of children. 

A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to disprove that beyond a reasonable doubt.

 If they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to (over-18) or as a direct consequence of (under-18), that slavery or exploitation. This, again, will have to be disproven beyond a reasonable doubt.

 If the prosecution cannot disprove either of these things, then the defence should succeed.

 How can I help?

Modern slavery cases are important and sensitive cases to deal with. I can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.

This is only a general overview of the law. For in-depth advice, contact me via contact@crimelawyer.co.uk.

New Drugs Sentencing Guidance Issued

Sentencing of drug offences involving newer and less common drugs

The Sentencing Council has now issued new guidance on 25 June 2018, with the following statement:

"Since publication of the Drug Offences guideline in 2012, there has been an increase in the number of cases before the courts involving newer drugs, such as synthetic opioids, which may have much higher potency and potential to cause harm than more common drugs. In addition, some new offences have been created, for example, those in the Psychoactive Substances Act 2016.

We have therefore published guidance on the sentencing of offences involving newer and less common drugs, in particular covering how to assess the harm caused. This guidance does not carry the same authority as a sentencing guideline, and sentencers are not obliged to follow it. However, we hope that sentencers will find it useful in assisting them to deal with these cases.

The Council published an assessment of the current Drug Offences guideline on 1 June, and has now started work to revise the guideline. We will consult on a revised draft guideline in due course, and consultation documents will be available on our consultation pages". 

 

 

Minimum Sentences

Minimum Sentences

For certain offences, there are minimum terms of imprisonment that a Court must impose. Absent exceptional circumstances (or it being unjust), these sentences can be automatically imposed even for a first-time offender, or dependent on certain previous convictions. It is worth noting that the actual sentence may be far in excess of the minimum, dependent on the facts involved.

What offences have minimum sentences and what are the sentences?

Burglary

If you have two or more convictions for dwelling house burglary, committed and sentenced on separate occasions, and then commit a third offence you face a minimum sentence of three years imprisonment.

Firearms

Certain firearms offences carry a minimum sentence of 5 years for an adult, or 3 years for a youth aged 16 or 17, in the absence of exceptional circumstances. This includes first time offenders.

The offences include possession of specific firearms as well as possession of a firearm with intent to cause fear of violence or intent to injure, carrying a firearm in a public place, use of a firearm to resist arrest. It also includes possession of any firearm disguised as another object. This includes, for example, a stun gun disguised as a mobile phone or a torch.

Weapons

As of 17 July 2015, possession of an offensive weapon or a blade, on a second occasion, will carry a minimum sentence of 6 months for an adult, or 4 months for someone aged 16 or 17. The sentence must be imposed unless it is unjust in all the circumstances.

Drugs

A minimum 7-year sentence applies to Class A drug trafficking offences in the case of an adult where there have been 2 previous, separate convictions for class A drug trafficking offences, unless it is unjust to impose. The offences include production, supply, possession with intent to supply, importing or exporting, or any attempt or conspiracy to commit these offences.

Does it have to be imposed?

The only reason why a minimum sentence would not be imposed, is if it is “unjust” to do so, or there are “exceptional circumstances” (this depends on the actual offence).

'Unjust' can refer to the circumstances of the offender, the offence or the previous offences where convictions are relevant. Credit for a guilty plea can also still be applied although it may not be the usual one third reduction for full credit.

How can I help?

It is vitally important that you receive expert advice in respect of plea and potential sentence. For example, a “timely” guilty plea to a third drugs offence could mean the difference between a sentence of 7 years and one of 5 years and 7 months. It may be that you have exceptional circumstances to argue for a lesser sentence.

There is a substantial body of case law dealing with mandatory minimum sentences, and it is vital that this is considered in detail and applied to the facts of your individual case. Please contact me on 07766001774 or email me (contact@crimelawyer.co.uk) to discuss this further. 

 

 

 

The Defence of Necessity

"But I had no choice!"

There is a defence in law known as "Necessity" or "Duress of Circumstances". It can be very difficult to demonstrate and will only apply in unusual and extreme circumstances. It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully, and where a worse situation was avoided by acting in this way. This defence is not a reference to self-defence which is a quite separate defence.

What must be demonstrated?

You will need to show that you only acted for as long as was necessary. In a driving case where you need to escape a dangerous situation, for example, when you are over the alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would not have a defence.

You must be able to demonstrate that no other action could be taken, that there was genuinely a greater evil that was being avoided by behaving in the way that you did, and that your behaviour did not go beyond what was absolutely necessary.

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be clear and close danger, and the threat of serious injury or death. Threats to cause damage to property is unlikely to constitute a threat serious enough to provide a defence.

If there is a large gap in time between threat and offence, where a person could have gone to the police but did not, that would not be acceptable.

Gangs and Criminality

The defence will often occur in the context of gang violence or owing money to loan sharks due to drugs. The suggestion here is that the defence would be unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing objectives.

In relation to gang membership the court of appeal has ruled (Sharp [1987] QB 853):

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress”.

As always though, the law on this point is very complex, so always seek legal advice.

In Howe [1987] AC 417 the Court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

Does it apply to all offences?

Duress can never be a defence to murder or attempted murder but, strangely, it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

What about using cannabis for medicinal purposes?

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point, and in 2005 the Courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may, however, amount to mitigation.

How can I help?

The defence of duress and necessity is complicated, this article is a basic overview only. It is vital, therefore, to obtain expert legal advice and representation. Please contact me on 07766001774 or email me (contact@crimelawyer.co.uk) to discuss any related matters.