There is a maximum sentence for each drug offence set by law, but in practice they aren’t used very often.
Sentencing for drug offences is mainly set out in the Sentencing Council’s Definitive Guideline for Drug Offences. The Court takes steps to decide on how serious the offence is and what the starting sentence point is for an offence. From the starting point the sentence can go up if there are things that make your offence more serious (aggravating factors), or down if there are things that make it less serious (mitigating factors), within a lower and upper range. You can also get a lower sentence if you plead guilty – the amount of discount will depend on how early you say you are guilty.
There is no statutory right to a discount for an early guilty plea. Section 144 of the Criminal Justice Act 2003 states that it remains down to the discretion of the Court. It was in R v Buffrey (14 Cr. App. R (S) 511) that the Court detailed general percentages for certain early guilty pleas. For example, one third for pleading guilty on first opportunity. There is no guarantee that an early guilty plea will result in a specified reduction in sentence, but in practice they usually do.
There are some outcomes which are given outside of the court. For more information on the Cannabis Warning Scheme please see the Cannabis Law section in our Drugs A-Z.
The following is about the sentencing of adults for drug offences – for information on sentencing of young people below the age of 18 please see the section below.
In practice, the first time you are caught in possession of a small amount of any drug for personal use you may get a formal caution. Cautions are dealt with at the police station and you must admit that you are guilty of the offence to get one. This is not a conviction, but is recorded as part of a criminal record and can affect education, employment and travel. It is possible to get another caution if you are arrested another time. Cautions can have conditions added to them, such as drug treatment, but most don’t.
You might be charged with possession if you have had cautions or convictions for similar offences before, or if you have more than a small amount of drugs on you. There is no set amount of drugs where the police will decide to charge instead of giving a caution. It is possible to challenge a police decision to charge you instead of giving a caution. For advice on this please call the Release helpline or email us.
If it is your first offence, the Court can give you an absolute or conditional discharge. An absolute discharge is no punishment at all, but you will still have a criminal record. A conditional discharge means that if you are convicted of another offence within a certain time (normally 12 or 18 months) you can be sentenced for the new and old offence.
You are most likely to get a fine at court for drug possession (sometimes you will also get a discharge) if it is a first offence, or it has been a long time since your last conviction. A fine is expected to be paid straight away but if you get benefits or have a low income you can make an arrangement to pay in instalments. The least amount that a court will accept is £5 per week.
If you have previous convictions for possession of drugs or other drug offences, the worse the sentence will be. It is possible to go to prison for a few weeks or months for simple possession. You will get a harsher sentence if you were in possession of drugs in or near a school, or in a prison. You will get a lesser sentence if you have no previous convictions or if you are charged with cannabis possession and are using it to help relieve the symptoms of a medical condition.
The Sentencing Council's detailed tables for this offence can be viewed here at page 30.
Sentencing in relation to other drug offences
For most other offences the Court decides a sentence based on a range of factors. As a starting point the Judge or Magistrates will look at the defendant’s ‘culpability’ and the ‘harm’ associated with the offence.
Culpability is decided by considering the type of role that the defendant undertook; for example, did they make a profit? Did they have control over others involved in the supply chain? Was it solely for their own use? Or, did they provide drugs to friends for no money? These types of questions will determine what type of role the Court considers applicable to the offence. There are three possible roles that a court can consider:
- Significant; or,
Depending on the type of offence the court will consider different things to determine which role a person falls into. Normally if you are working alone, have no knowledge and/or influence over what other people might be doing, or are being pressured or exploited in some way then you will be thought to be in the 'lesser role'. As soon as you are controlling/managing in some way, or there is a financial gain, there is a risk of falling into the 'significant role'. You will be classed to be in the ‘leading role’ if you are organising an operation that could be at a commercial level.
The Court will determine the level of harm by the quantity of drugs seized. For most offences there are four categories, with Category 4 dealing with the smallest quantity and Category 1 the largest.
By matching your role (‘culpability’) with the level of harm the Court will reach a starting point for your sentence and also an upper and lower range that it must stay between. These will be different for each different class of drug. Your sentence might go up if you have previous convictions for the same/similar offence, if violence or weapons were used/threatened, or if the drugs had a high purity. Your sentence might be less if you have no previous convictions, are vulnerable in some way or committed the offence because of your own drug use. If you plead guilty to an offence your sentence can be reduced by up to a third of what it would have been, depending on if you have said that you are guilty at an early or late stage. Personal factors can also cut a sentence. The Court can depart from the guidelines if it is in the interests of justice to do so.
Possession with intent to supply/supply
These offences can be very serious and you are at risk of getting a prison sentence if convicted. However, because supply can range from simply passing some drugs to a friend (technical supply) right through to selling drugs on a very large scale, the sentences can also be very different. At the lower end of the scale if you are only supplying a small amount of a Class C drug it is possible to get a fine, but otherwise you should expect to get at least a community order and/or a suspended prison sentence.
A community order is supervised by a probation officer and can be made up of a number of different things, including drug treatment and unpaid work. At the other end of the scale, supply of 5kg of cocaine could see a starting sentence of 14 years' imprisonment in circumstances where the defendant was considered to have a 'leading role'. This demonstrates the huge variation in possible sentences for this offence.
The Sentencing Council's detailed tables for this offence can be viewed here at page 11.
These offences are also taken very seriously and a prison sentence is a real risk if you are convicted. Production can range from growing a few of cannabis plants through to producing large amounts of cocaine on a commercial scale. If you have only grown one or two cannabis plants it is possible to get a caution at the police station. However, normally you will be charged and if convicted then you will be sentenced at court. Community orders, suspended sentences and prison sentences are often given for these offences.
The difference between production and cultivation is that if you are convicted of production you can also have a case against you for proceeds of crime. These hearings happen after you are convicted and sentenced. You can be ordered to pay back an amount of money that the Court says you made from your criminal activity. If you do not pay this you can be given another prison sentence.
The Sentencing Council's tables for this offence can be viewed here at page 18.
If you are convicted of importing or exporting drugs a prison sentence is likely; however, there are exceptions. If the quantity of the controlled drug is equal to or less than the amount specified in Category 4 of the sentencing guidelines regardless of the class of drug, the Judge or Magistrate will refer directly to the starting point and ranges for possession or supply offences depending on the intent of the individual in undertaking the export/import.
If treated as an import/export offence the purity of the drugs will affect the seriousness of the offence and may make a sentence longer or shorter.
The Sentencing Council's tables for this offence can be viewed here at page 5.
Allowing premises to be used
The Court decides the sentence for this offence a bit differently. Instead of a role they look at how responsible you are for what happened to determine culpability, which will be classed as either higher or lower. There are then two levels of harm – greater and lesser – which are based on how often drug-taking has happened at the address and/or the amount of drugs involved. The Court matches up the level of culpability and harm to fit you into one of three categories and get a sentence starting point and range. Each class of drug has different sentences, but generally you can expect a fine and/or a community order. It is possible to get a prison sentence for this offence, especially if there is a lot of drug activity at the address, it has been going on for a long time, or children are present. A lesser sentence might be given if you have been threatened or forced to allow people to use your property.
The Sentencing Council's detailed tables for this offence can be viewed here at page 24.
For information on how cannabis possession is dealt with for people under 18 go to the Cannabis Law section in our Drugs A-Z.
If you are under 18 and it is your first offence you will normally be given a youth caution (formerly called reprimands and final warnings) which is not a conviction, but does stay on your criminal record forever and can affect education, employment and travel. It is possible to get another youth caution if you are arrested another time.
You might be charged and have to go to the Youth Court if you have youth cautions or convictions for similar offences before, or had more than a small amount of drugs on you. There is no set amount of drugs where the police will decide to charge instead of giving a youth caution. It is possible to challenge a decision to charge you instead of giving a youth caution. For advice on this please call the Release helpline or email us.
If it is your first offence, and you plead guilty, the Youth Court can give you an absolute or conditional discharge. An absolute discharge is no punishment at all, but you will still have a criminal record. A conditional discharge means that if you are convicted of another offence within a certain time (normally 12 or 18 months) you can be sentenced for the new and old offence. The Court do not have to give you a discharge and often sentence young people to referral orders for their first conviction if they are pleading guilty (they ignore any absolute or conditional discharge you may have been given before). A referral order will be for between three and 12 months and will be managed by the local Youth Offending Team – you will need to meet with them regularly and they can make you do lots of different things, such as drug treatment and work in the community.
You might be given a youth rehabilitation order if the Court thinks the offence is serious enough. You can be made to do a number of different things, including drug treatment and work in the community.
Prison sentences are a last option for young people, but if the offence is extremely serious then you might get a detention and training order. For part of this you will be in a Young Offender’s Institution, and the rest of it will be supervised in the community.
Under the ‘Slip Rule’ the Crown Court can alter a sentence/order made by the Crown Court up to 56 days since it was made. Usually this rule is not used; however, it may be relevant when the Court overlooked a statutory provision or new evidence relevant to sentencing comes to light.
In sentencing, if there is a disagreement with regards to the facts of the case, in circumstances where the defendant has plead guilty, either side can call evidence to support their position. This would be undertaken through a Newton Hearing, established in the case of R v Newton (1983) (77 Cr.App.R.13). This will necessitate a hearing in front of the Judge about the disputed facts; for example, in a case involving supply of a controlled drug the defence may not accept the prosecution's evidence as to the value of the drugs seized and wish to bring independent expert evidence to support their assertion.
A Judge may also decide in sentencing that it is appropriate to make an ancillary order. These can include things such as drinking banning orders, or football banning orders. It will be the prosecution advocate’s duty to apply for appropriate ancillary orders and the Judge to determine whether they are necessary.