We have received a number of emails from cannabis activists asking for clarification on how the new Sentencing Guidelines will impact on cannabis cultivation and possession. Release provided detailed advice to the Council and has welcomed many of the changes in the guidelines as an improvement on the previous regime, but in relation to cannabis, there has only been a slight shift in approach.

With regards to possession of cannabis, there has been very little change from the current Magistrates Sentencing Guidelines. The starting point for sentencing remains the same, that is, a Band B fine. The sentencing range has changed, previously it was Band A fine (A is lower than a B fine) to 12 weeks custody (this covers sentencing for both small and large possession offences). The new guidelines range from discharge (more lenient than before) to 26 weeks in custody (harsher than before). If someone comes before the court in respect of possession of cannabis for medicinal purposes that would mitigate the sentence, and if there were no other factors could reduce it down from a Band B fine. However, it is still a criminal conviction resulting in a criminal record even with an absolute or conditional discharge.

In terms of cultivation and production of cannabis there does seem to have been real movement, but this is primarily due to the recent guidelines in the Court of Appeal case of R v Auton. This case was decided only last summer and provided much harsher guidelines for sentencing cannabis production cases involving yields of approximately 1 kilo. The guidelines stated that:

Where there is no element of supply the sentence range is likely to be between 9 – 18 months, depending on size of operation and the defendant’s personal circumstances;

Where there is no evidence of commercial supply for profit but there is supply to others the range is likely to be 18 months to 3 years – operation and personal circumstances again relevant;

Where the operation is a commercial one but falls below an industrial operation the range will be 3 to 6 years.

The new guidelines are certainly an improvement on R v Auton and sentencing will be determined through a two-step approach. The first step is to determine the role of the offender and there are three potential categories – lesser role, subordinate role or leading role. The second step is the quantity of drugs involved and there are four categories:

Category 4 – 9 plants (presumed yield 40gram per plant)

Category 3 – 28 plants (presumed yield 40 gram per plant)

Category 2 – operation capable of producing significant quantities for commercial use

Category 1 - operation capable of producing industrial quantities for commercial use

The Court will then consider mitigating/aggravating factors.

In relation to someone who is producing for their own purposes, or even where it is social supply, it is likely they will fall within the ‘lesser role’ category within the new guidelines. In terms of quantity 1kg (25 plants) would fall within category 3. This would lead to a sentencing starting point of a high level community order and a sentencing range of a low level community order to 26 weeks custody, again depending on mitigating and aggravating circumstances. This is definitely an improvement on Auton but there is still a risk of imprisonment especially where there is a previous conviction.

Where someone was growing a lesser quantity (9 plants) and falls within the lesser role the guidance suggests a starting point of Band C fine, with a sentencing range of a discharge through to a medium level community order. This would then be increased/decreased through aggravating and mitigating factors. Frankly, this is only a slight departure from current Magistrates guidelines which state that the starting point for small scale cultivation is a Band C fine and the range is Band B fine to low level community order.

So overall, whilst we are pleased that our advice has been followed to some degree and has impacted on other areas of sentencing, the general approach to cannabis offences has not shifted a huge amount, and cannabis activists should be aware that the offences remain criminal, and so can result in a criminal conviction. There is also no evidence to suggest that the police will de-prioritise the policing of cannabis cultivation.

Fine Bands

Fine A – Starting point 50% of relevant weekly income; Category range 25% - 75% of relevant weekly income

Fine B – Starting point 100% of relevant weekly income; Category range 75% - 125% of relevant weekly income

Fine C – Starting point 150% of relevant weekly income; Category range 125% - 175% of relevant weekly income

If anyone needs legal advice please contact the helpline on 0845 4500 215 or 020 7324 2989, or email ask@release.org.uk.