R v Aramah has long been established as authority for the deterrent sentencing of drug couriers, with little room for mitigation or mercy. However, in 2009, a new approach was signalled by the Sentencing Advisory Panel, with the recommendation that this group of offenders should be dealt with differently ? effectively meaning a return to proportionate sentencing.

In 2011, the Sentencing Council (which had replaced the Panel) broadly adopted the 2009 approach but did not agree with the Panel?s sentencing ranges and increased them considerably.

But it did accept that there should be a new approach to mitigation.

This resulted in a small but very significant part of the drug offences definitive guideline published on 24 January 2012, effective from 27 February 2012.

Boakye

R v Boakye and others, heard on 3 April, were six test cases seeking to establish that the new drug guidelines should apply, not only to those sentenced after 27 February 2012, but also to others who were already sentenced as drug couriers and were still in prison. These people could be taken as forming part of the same group because they had been sentenced under Aramah?s deterrent sentencing formula, so that they had not only received deterrent sentences but had also been denied mitigation that might have been available to them if they had been sentenced under the new guidelines. All six appeals were dismissed.

For the defence, Edward Fitzgerald QC argued, not that the new guidelines in themselves could operate retrospectively, but that they provided a benchmark in respect of what would have been a proportionate sentence if the defendants had not been sentenced under deterrent Aramah principles.

Page 7 of the new guidelines includes mitigating factors which would have received short thrift in a pre-guideline sentence. In cases where the defendant is the sole or primary carer for dependent relatives in a third world country, without access to social security or social services, I strongly believe it should always be argued that a long sentence could make the difference between life and death.

The way forward

Although the court has made its decision, it is still open to the Ministry of Justice to put those already sentenced on a parity with those to be sentenced under the new guideline and there should be a campaign for this. Alternatively, an application could be made to the Home Office for a partial pardon.

As the six cases were only applications to the Court of Appeal, there can be no appeal to the Supreme Court. R v Boakye and others is binding authority but there can be a further test case or test cases if it can be shown that LJ Hughes? judgment was fundamentally flawed to the extent that it was made per incuriam. In that event, it is possible for the Court of Appeal to consider further cases, avoiding the doctrine of stare decisis.

In his judgment, LJ Hughes described sentencing as rising and falling, with various examples, including sentences for commercial burglary. He made no reference to the fact that, since Aramah, drug couriers have been a unique group of offenders, pre-selected for deterrent sentencing, practically without mitigation ? an approach which has now, in the new guideline, been implicitly acknowledged to be no longer good law.

There has been concern about the sentencing of this group of offenders for a number of years. In 2002, the Committee on Women?s Imprisonment, chaired by Professor Dorothy Wedderburn, said that "the deterrent purpose of sentencing these women to long periods of custody has not been evaluated and its effectiveness must be highly questionable.?

Similar reservations were expressed in 2003 and 2004 in reports by the Esme Fairburn Foundation and the Prison Reform Trust.

The role of the charity Hibiscus has been central to the new thinking. Founded by Olga Heaven MBE in 1986, when she discovered children of sentenced drug couriers sleeping under corrugated iron sheeting, Ms Heaven and Hibiscus have played a prominent part in drawing attention to the terrible plight of the dependants of drug couriers sentenced under the old draconian guidelines: risks included being recruited into drugs gangs or being drawn into prostitution.