On 27 February 2012 a new drug guideline came into effect which reduced the sentences for those who were genuine drug mules considerably, and also for the first time encouraged mitigation in such cases, but the Court of Appeal in R v Boakye and others in April 2012 ruled that the guidelines were not to operate retrospectively.

This ruling has created a two tier sentencing regime within the prison system consisting of those who were sentenced under the old guidelines and those sentenced under the new guidelines.

There is a further test case in the Court to Appeal on 31 October 2012, R v Fasicna, when the Court has been asked to review the decision in Boakye because of the sense of injustice that decision has caused within the prison system.

The facts in Fasicna are that the applicant, a 50 year lady of previous good character, imported drugs to this country ,The Court accepted that she was a genuine mule driven by need rather than greed. She expressed remorse for her crime and pleaded guilty in the magistrate?s court in November 2011 and was sentenced to 7 years imprisonment imposed under the old guidelines at Isleworth Crown court on 12 January 2012. The applicant has a mother aged 76 in Ghana who she financially supported and paid for her medication. Her mother has not received her medication since the applicant was imprisoned and has suffered two heart attacks or strokes.

Fasicna is representative of other cases of serving prisoners sentenced under the old guidelines who have dependants, children or old people, in third world countries, who are at risk because there is no social security or social services and in the absence of the bread winner, in prison in the UK, there is often no one available to pick up the pieces.

If the applicant has not cooperated as she was encouraged to do she would almost certainly have been sentenced under the new drug guidelines. Ms Fascicna may have lost some credit for a late guilty plea but the Court would then have considered the mitigation arising from the fact that her mother was a dependant which was now a statutory requirement under the new guidelines .It is estimated that had she been sentenced on 27 February 2012, with the reduced sentences under the guideline, she would have received a sentence of three and a half years ,with three years not being unduly lenient .In essence therefore she has received half her seven year sentence for her crime and half for being sentenced on the wrong date.

The learned single judge refused her leave to appeal on the grounds that the Full Court would consider itself bound by Boakye. Ms Fasicna renewed her application to the Full Court on the basis that the Full Court would only be bound by Boakye if it considered that it was just to do so. Otherwise the appeal should be allowed because the decision would be wrong in principle.

Boakye is of course a binding precedent .It is believed it can be distinguished but only by a Court consisting of five judges. As Lord Justice Hughes who gave the judgment in Boakye is Vice President of the Criminal Division the only court senior to him would be one headed by the Lord Chief Justice .

The Court of Appeal has however been prepared to overrule previous judgements with a court of five judges and has ruled that it is bound to do so if convinced that the previous judgement was wrong. It is more likely to do so with a criminal case but it is a civil case, ,Davis V Johnson, that provides the closest parallel with Ms Fasicna?s case

Davis v Johnson was a case in 1978 where on two separate occasions the Court of Appeal had refused to grant an ouster injunction to the female partner of a man who had been violent to her because the parties were not married and it would interfere with the man?s property rights. An Englishman?s home was his castle .Lord Denning convened a five judge court which overruled the previous decisions and that decision was upheld by the House of Lords. Lord Denning was not on this occasion acting on a frolic of his own. Leading counsel was the late Sir James Comyn, immediately thereafter appointed a High Court Judge, and junior counsel the present Mrs Justice Judith Parker and this decision has never been criticised.

Prior to Lord Denning?s intervention the two previous earlier decisions would have appeared to be set in stone. Ms Fasicna also faces two decisions apparently set in stone, Boakye and an earlier decision, Graham, where Lord Justice Rose had ruled that Sentencing Guidelines should never operate retrospectively because they simply reflected changes in sentencing within the Criminal Justice system. Ms Fasicna would however argue that genuine drug mules are a special case .They have existed as a distinct group ever since the case of Aramah in 1982 selected for long deterrent sentences without the benefit of mitigation .Only in 2012 has it been finally acknowledged by the new guideline that this is not appropriate . It is submitted that it is not just that those already sentenced under the discredited policy should be placed in such a different position to those sentenced after 27 February 2012.

For Ms Fasicna to succeed there must be a five judge court and one has not been constituted despite request. The court appointed will deal with the application fairly but justice cannot be seen to be done when its constitution is junior to the court in Boakye .The Court office has allowed 25 minutes for the Court hearing to include judgment, effectively allowing 5 to 10 minutes for oral submissions.The defence has accordingly been obliged to summarise its submissions to twelve bullet points on one piece of foolscap paper -hardly an appropriate way to deal with a major test case effecting a number of helpless children and old people in the third world.

Although the court as constituted cannot allow the application for leave to appeal it may be able to give leave to do so, or alternatively treat the hearing on 31 October as a directions hearing with a view to a five judge court being constituted thereafter. It is hoped that it will take either course.

It is felt that Boakye is tainted because LJ.Hughes referred to the courts being as ?deluged?. The fact that an old lady in Africa may die sooner rather than later may not seem important when compared with that prospect but it illustrates the vital principle that is the life blood of our criminal justice system. As Martin Luther King said ?an injustice anywhere is a threat to justice everywhere?. We ignore that at our peril. It is felt that the court in Boakye was unduly influenced by the fear of the floodgates being opened and has fallen back on a precedent which could and should have been distinguished. In any event figures now obtained suggest that with sensible management the courts would not be deluged. Floodgates can be controlled It is interesting that in Spain in 2010 there was a similar reduction in the sentencing tariffs for drug couriers and Spain did reduce the sentences for those already in prison resulting in a number of prisoners being released, and so reducing prison numbers.