‘Leading’, ‘Significant’, or ‘Lesser’ Role in the Drugs Sentencing Guidelines?

1. Introduction

The Sentencing Council’s guidelines on the supply, production, and importation of controlled drugs (“the guidelines”) require that a sentencing court assess culpability by reference to what ‘role’ the Defendant performed in the supply, production, or importation operation. There are three ‘role’ categories – ‘leading’, ‘significant’, and ‘lesser’.

For present purposes, whilst there are slight differences of wording between the guidelines, the only major difference of approach is that the importation guidelines say that ‘role’ is to be determined “…with reference only to the factors listed in the table… below” whereas the other two say that role is to be determined “…with reference to the table… below”.

Massive differences in sentence can turn on the Court’s analysis of the clusters of bullet point “factors” that “may demonstrate” the Defendant’s role – to be clear, the guidelines expressly state that the factors are “not exhaustive”.

The guidelines all have the following paragraph in them:

“In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, or where the level of the offender’s role is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender’s culpability” (emphasis added).

I am going to briefly set out some of the principles that the Court of Appeal has developed in applying the guidelines and then suggest an overall approach that may assist others in mitigating in these cases.

The Case Law

In my view, the following principles can be extracted from the case law:

• Cases can fall between, or straddle, role categories: Healey [2012] EWCA Crim 1005 (“Healey”)at [9] and English and Read [2020] EWCA Crim 100 (“English and Read”) at [15];
• Relatedly, the tables in the guidelines dealing with ‘harm’ and ‘role’ do not have “hard edges”: Healey at [10];
• It is not a necessary condition of someone being Leading Role that there is an “…operational hierarchy and a chain of employees”: Descombre and Thomas [2013] EWCA Crim 72 (“Descombre and Thomas”) at [17];
• Factors illustrative of Leading Role can be engaged by someone supplying drugs to consumers on their own, e.g. as a ‘one man band’, without involving others: English and Read at [6], [15], and [17]-[18] and Odoi [2021] EWCA Crim 728 (“Odoi”) at [4] and [8];
• To illustrate, Leading Role factors can be engaged for someone who does not have subordinate if they:
  • “…[are] head of their own supply chain in a specific area of the country…” English and Read at [18]; or
  •  “…[where they run a] business [that] yielded large profits”: Odoi at [8] (£10,000 of clothes and shoes found at the Mr. Odoi’s flat along with £2,000 in cash on his person: [2]).
• Assessments of culpability and harm are “often linked but not always”: Healey at [10], illustrated in Healey at [17] and [22];
• The duration of an operation, or the length of the defendant’s involvement in it, is a relevant factor in assessing role: Capo [2020] EWCA Crim 1713 (“Capo”), at [11];
• The level of responsibility entrusted to the defendant, and how “integral” their role is, is also a relevant factor: Capo at [11];
• The specialist nature of any equipment used, the defendant’s involvement in the use of that equipment, and the consequent effect of specialist equipment on the yield of any operation, are all relevant factors: Zancanu [2020] EWCA Crim 876 (“Zancanu”), at [22], and Descombre and Thomas, at [9];
• The process of interpreting guidelines is different to interpreting case law or statute: Healey at [8];
• In particular, “…[the ‘role’ table is] not to be treated as exhaustively defining every possible form of criminal activity, even if that were ever possible, which it is not” Healey at [14] (emphasis added).

An Overall Approach to Interpreting the Guidelines?

I find it helpful, in trying to work out what ‘role’ a particular defendant has within the guidelines, to ask myself these questions: (1) who has the power in this particular operation?; and (2) what would happen to the supply of drugs in the local area (or, if it’s a national operation, the country) if, before the police had intervened, that particular defendant had suddenly disappeared?

Asking these questions does two things:

First, it splits the two concepts of ‘chain’ that, in my view, exist in the guidelines. One of those concepts is an economic idea of a ‘supply chain’ (e.g. “Substantial links to and influence on others in a chain”, emphasis added). The other concept is concerned with hierarchical idea of a ‘chain of command’ (“No influence on those above in a chain” or “[X] function within a chain”, emphasis added). The two concepts are plainly related since high levels of organisation are probably required for an operation be a significant player in a supply chain.

Interpreting the guidelines as if there are two concepts of ‘chain’ helps to make sense of why the words “on a commercial scale” appear after the words “Directing or organising buying or selling” in the Leading Role category – if it wasn’t for the first set of words, every drug dealer who ran an amateurish, homespun ‘one man band’-style operation, where the drugs were sourced from their own coterie of inconsistent suppliers and marketed directly to users, would be Leading Role. Defendants who operate ‘one man bands’ like that do not have subordinates in the sense of a chain of command but nor are they often significant/consistent players in the overall supply chain.

Second, it reminds us that – in applying the guidelines – the Court is not performing an urbane numerical exercise of ‘counting’ how many factors exist in one ‘role’ category and how many factors exist in another. It reminds us that courts are exercising judgement about what particular weight factors should have in particular cases. The wording of the guidelines will remain the same between two cases in a busy sentencing list but the weight given to particular factors between cases might vary radically on different fact patterns – that is probably what the Court of Appeal in Healey was referring to when it said that guidelines are not to be interpreted like statutes!

One factor that is surely particularly important when trying to achieve a “fair” assessment of role in the guidelines is the idea of exploitation encapsulated in the bullet point in Lesser Role that says, “Involvement through naivety, immaturity or exploitation”.

Take the example of a live-in ‘gardener’ – they may have very specialist knowledge, built up over months of intense application to their work, caring for cannabis plants in a factory. That knowledge may give them a tremendous “awareness and understanding of [the] scale of [the] operation”. They may even become ‘head gardener’ (Capo at [5]) within a team of gardeners working shifts. The more irreplaceable people become to a business, of course, the more valuable they are to it; but, if all of that is true and applies to a particular defendant, it raises these questions – “are they being remunerated for taking all that risk and responsibility? If not, why not?”. The answers to those questions, if they reveal exploitation, illustrate that someone can be a knowledgeable, long-standing employee who is implicitly trusted and almost irreplaceable to a business, and yet their very longevity and integration within the business can also be powerful evidence of their lack of influence or exploitation.

The fact that, before we even get to the clusters of bullet points dealing with ‘role’, there is an injunction to the Court to reach a “fair” assessment of that is surely an invitation to the Court to justify the weight it has put on factors. The very concept of fairness seems to require that logically and morally defensible reasons are given for the differential treatment of people. Interpreting the guidelines that way, a defendant’s categorisation in a particular case depends not so much on the wording of individual factors, or how many of them are engaged in a defendant’s case, but which set of reasoned justifications for placing a defendant in one category rather than another is the more compelling. Yes, you can tell I read a lot of Ronald Dworkin at university.

Conclusion

This article has summarised the approach to ‘role’ in the drugs sentencing guidelines and in the Court of Appeal’s case law. It has then argued that a helpful way understand that approach is to see the category factors as expressing ‘ideas’ (sometimes multiple ideas at once) which all go into a ‘mixing pot’ of a court’s overall assessment of what fairness requires in individual circumstances. It has been suggested that the most powerful and persuasive arguments in favour of a particular role will necessarily involve the Court giving a reasoned explanation of why, ultimately morally, it is right to put the weight it has on the factors. If that is remotely close to what the Court is doing in a drugs sentencing exercise, then knowing that in advance helps in working out what to say to a court by way of mitigation.