Whatever differences of opinion there may be between Theresa May of the Home Office and Ken Clarke of the Ministry of Justice they should now be joining forces in correcting a situation which is both unjust and absurd.
The announcement by the Sentencing Council of a reduction of sentences for drug mules is long overdue but very welcome. The new guideline applies to all adult offenders who are sentenced on or after 27 February 2012 but is otherwise silent about those already sentenced as the Sentencing Council has no remit as to past offences. Unless the guideline is made retrospective there will be serious anomalies, as there will be a two tier structure of those sentenced before 27 February and those sentenced on or after that date. Some drug mules sentenced before 27 February will serve substantially longer sentences than drug mules sentenced on or after that date- even though the former’s offending could be regarded as being less. This is directly contrary to the professed aim of the Sentencing Council to promote consistency and uphold confidence in the administration of justice.
Because neither Minister has yet grasped this particular nettle it has been necessary to lodge six test appeals to resolve the issue and these have now been referred by the Registrar of the Court of Appeal direct to the Full Court of Appeal. Illustrative of the anomalies that will now ensue is one of our lead test cases where a woman sentenced to seven years imprisonment on 5 January 2012 would have received four years or less if she had been regarded a s a category three offender and her sentence date had been postponed unto on or after 27 February 2012.
Both ministers will realise that if the existing sentences are reduced there will be some hundreds of prisoners less ,a saving which could be recycled back to other hard pressed areas of the Criminal Justice System . But the primary reason why this should be done is because it would be unjust not to do so. There may still be time to correct this in the sentencing Bill currently going through Parliament in which case the costly and time consuming test appeals would become redundant.
However if that is not to be the situation will have to be resolved by the Court of Appeal and a date has now been set for Tuesday 3 April before the Vice President of the Court of Appeal Lord Justice Hughes. The Registrar has indicated in writing that those who chose to delay their appeals until after the test appeals will not be prejudiced if thereby their appeals are out of time or more out of time.