When is a Courier Not a ‘Mule’?
| Published date | 01 December 2012 |
| Date | 01 December 2012 |
| DOI | 10.1350/jcla.2012.76.6.801 |
| Subject Matter | Court of Appeal |
Court of Appeal
When Is a Courier Not a ‘Mule’?
R v Boakye [2012] EWCA Crim 838
Keywords
Drug Offences Definitive Guideline 2012; Drug couriers; Ret-
rospective effect; Steps to mitigation
The applicants (Boakye, Alleyne, Nwude, Nasri, Latchman and Jagne)
were six female drug couriers. All had been separately convicted of Class
A importation (cocaine, gross weight 1–7.3 kg).1 Their sentences, rang-
ing from 5–12 years’ imprisonment, were all imposed before the coming
into operation on 27 February 2012 of the Sentencing Council’s Drug
Offences Definitive Guideline.2 Four were sentenced up to three years
and two less than eight weeks before 27 February 2012, the latter having
entered early pleas of guilt. All had mitigation: they were all first
offenders save for one with no relevant previous convictions; four were
foreign national mothers. Applications for extensions of time and leave
to appeal against sentence were conjoined. The argument was that all
applicants were drug mules and the previous guideline upon which they
had been sentenced had produced sentences which were fundamentally
disproportionate when compared with lower sentences for mules now
available under the new guideline. Those in respect of the applicants
with dependent children and the two whose appeals were in time were
manifestly excessive and in breach of fundamental human rights under
Articles 3 and 8 of the European Convention on Human Rights and
Article 3(1) of the United Nations Convention on the Rights of the Child
(UNCRC).3
HELD, DISMISSING THE APPEALS, the new guideline did not operate
retrospectively. Whether a sentence is manifestly excessive or wrong in
principle is to be answered, with the exception of fresh evidence, by
reference to the facts, the circumstances and the tariff as at the date of
sentence. All applicants were drug couriers, but their culpability varied.
It was not agreed that all applicants were mules. In respect of the
interests of affected children, Article 3(1) UNCRC does not apply to
criminal judicial decisions. Detailed observations were given on the
sentencing of drug couriers under the new guideline.
1 Fraudulent evasion of a prohibition by bringing into or taking out of the UK a
controlled drug (Misuse of Drugs Act 1971 (MDA), s. 3; Customs and Excise
Management Act 1979, s. 170(2)).
2 Sentencing Council, Drug Offences Definitive Guideline (2012), available at http://
sentencingcouncil.judiciary.gov.uk/docs/Drug_Offences_Definitive_Guideline_final_(web).pdf,
accessed 3 November 2012.
3 Article 8: the right to respect for private and family life; Article 3: the prohibition of
torture, inhuman and/or degrading treatment or punishment; Article 3(1): ‘In all
actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.’
444
The Journal of Criminal Law (2012) 76 JCL 444–455
doi:10.1350/jcla.2012.76.6.801
When Is a Courier Not a ‘Mule’?
Hughes LJ: The common point of principle to the conjoined appeals
was whether the new guideline operated retrospectively to render sen-
tences manifestly excessive which, when passed, were in accordance
with prevailing practice. The Sentencing Council had expressly made
clear that in most respects the new guideline was expected to produce
sentences broadly in line with existing practice except for a sub-class of
courier commonly, if inaccurately, known as ‘mules’. This sub-class is
characterised by being disadvantaged, particularly those from an under-
developed country, exploited by serious drugs criminals and persuaded
to carry drugs for small reward. Sentences would be shorter, sometimes
significantly so.
Retrospectivity
The applicant’s case was that the principle upon which drug mules were
previously sentenced was wrong and fundamentally disproportionate.
In other words, the new guideline showed that all sentences imposed on
such offenders since R v Aramah4 were manifestly excessive. Secondly, it
was submitted that this was confirmed by the approach of the Court of
Appeal to standards of fair trial and safety of conviction as applied in R
v Bentley.5 Thirdly, in respect of the two applicants whose appeals were
brought in time, it was submitted that the sentencing process was not
over until this court had dealt with their applications for leave to appeal
and therefore the new guideline should apply. Fourthly, in the case of
the same two, although they were sentenced before publication of the
new guideline, they were sentenced after publication of the most recent
Sentencing Council Consultation Paper in March 2011. Therefore, it was
submitted that the sentencing court ought to have had regard to that
paper which showed that the sentences which were imposed were
manifestly excessive and fundamentally disproportionate. Fifthly, if the
new guideline is not applied, there will be an arbitrary and an unfair
distinction between offenders sentenced just before and just after the
guidelines came into effect. In addition, the sentencing of the four
applicants who were mothers was additionally manifestly excessive
because it failed to take account the fact of their motherhood contrary to
Article 3(1) UNCRC and R v Bishop6 and R (on the application of HH) v
Westminster City Magistrates’ Court.7
These submissions were wrong. First, sentencing practice varied from
time to time and could increase as well as decrease. If changes were
regarded as retrospective, courts would be deluged and injustice would
be done to those whose sentences had been served. R v Graham8 made
clear that sentencing changes are not retrospective. There, Rose LJ
explained that sentencing decisions of the Court of Appeal, whether by
4 (1982) 4 Cr App R (S) 407. The previous guidelines for drug importation offences
were set down by R v Aramah as amended by R v Aranguren [1999] Cr App R (S)
347.
5 [2001] 1 Cr App R 307.
6 [2011] EWCA Crim 1446.
7 [2011] EWHC 1145 (Admin).
8 [1999] 2 Cr App R (S) 312.
445
The Journal of Criminal Law
way of guidelines or otherwise, were not intended to and do not have
retrospective effect. Further, the Sentencing Council’s guideline was
deliberately expressed to be prospective and not retrospective, applying
to cases sentenced after 27 February 2012. This court is obliged to follow
the guideline by virtue of s. 125 of the Coroners and Justice Act 2009.
Subsequent courts need look no further than Graham and the present
case for this general principle. Bentley did not apply in respect of the
argument that a court should observe fundamental standards of fairness
as now understood. Sentencing tariffs are not fundamental and a change
in standards was not the reason for the court’s decision.
Whether a sentence is manifestly excessive or wrong in principle is to
be answered, with the exception of fresh evidence, by reference to the
facts, the circumstances and the tariff as at the date of sentence. An
impending change in sentencing practice may be included in the judge’s
assessment of the case as a whole, for example, R v Bow.9 This does not
imply that a decision not to do so will be wrong. On the contrary, it
would be wrong to assume that a consultation paper of possible pro-
posals for sentencing will remain unchanged by the time of publica-
tion.10 A change in tariff, whether the result of parliamentary or other
intervention, inevitably creates the potential for different outcomes for
offenders sentenced before and after the change.
United Nations Convention
Article 3(1) UNCRC states that the best interests of the child shall be a
primary consideration in all actions concerning children. In ZH (Tan-
zania) v Secretary of State for the Home Department,11 the Supreme Court
held that Article 3(1) applied to immigration decisions so as to make the
best interests of a child a primary consideration, typically in relation to
the removal of a mother or parent. This was not the same as ‘paramount
consideration’ relating to domestic matters of the care and upbringing of
children as required by Article 2(1). It did not follow that Article 3(1)
applied to every judicial decision which may have a knock-on effect on
children. The Convention was concerned with decisions involving chil-
dren not with penal policy in the case of adults. The interests of depend-
ent children could not be decisive in the sentencing of adults. Article 8
ECHR and Article 3(1) UNCRC also applied to extradition proceedings,
but Laws LJ in R (on the application of HH) v Westminster City Magistrates’
Court12 held that they would have to give way to the public interest in
...
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