Tag Archives: duress

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The potential consequences of a drug importation allegation

It is common for officers at airports and other ports of entry to intercept people carrying controlled drugs in their luggage, clothing or inside their bodies on behalf of suppliers in foreign jurisdictions. The colloquial term for such a person involved in drug importation is a ‘mule’. They may have been pressured into carrying the drugs or have done so for a fee, or both.

On occasion large quantities of drugs are found.  Sometimes it is merely the leftovers from a holiday or business trip abroad.  This may have occurred at a location where drug use is more widely tolerated by law enforcement than it is in the United Kingdom.

Committing the offence of drug importation can however result in severe consequences.

 

The crime of drug importation

Drugs are brought into the jurisdiction in a number of supposedly ingenious ways.  For example, cocaine may be moved in its liquid form while disguised as something else.  Drug ‘mules’ may swallow a number of pellets containing drugs of different kinds.

Naturally, the police and associated organisations are frequently uncovering these methods as they arise.  This results in those who take the risk and are caught being charged and sent to prison for a significant term.  This will be despite initial thoughts that the police or customs officers have been outwitted.

Which laws would I break?

The underlying offence is the breaching of the prohibition on the importation and exportation of controlled drugs.  This is created by Section 3 of the Misuse of Drugs Act 1971. This prohibition is paired with the substantive offence.  This is contained in Section 170 of the Customs and Excise Management Act 1979.

The maximum penalties

The maximum penalties for the offence of drug importation will vary depending on the type of drugs in question:

  • Class A, life imprisonment;
  • Class B and C, 14 years’ imprisonment;

Sentencing for drug importation

Various factors will alter the sentence imposed upon someone who either pleads guilty or is found guilty of this offence. These include:

  • the role played by the individual in the activity
  • the amount and character of the substance in question
  • their level of co-operation with the police.

The sentences here are generally heavy.  Prison almost always follows for even the smallest quantity of drug.  Sentences of between ten and twenty years, or even more, are common where the quantity is large.

There are however a large number of factors that might reduce the seriousness of the offence or provide valuable mitigation.  It is essential that you choose a solicitor who will properly explore these on your behalf to ensure a proper reduction in sentence.

Case studies

In Gregory [2012] EWCA Crim 649, the appellant’s sentence of imprisonment was reduced from 8 years to 6 years.  This was because the original sentence did not sufficiently reflect the appellant’s relatively minor role and the fact that he believed he was carrying cannabis rather than cocaine.

Conversely, the appellant in Burns [2009] EWCA Crim 1123 received an increased sentence upon a reference by the Attorney-General.  In this case the sentence increased from 8 years to 14 years’ imprisonment.  This was said to better reflect the fact that he had abused his professional role as a distribution supervisor by allowing cocaine importations.

There is a comprehensive sentencing guideline that judges will use in order to decide sentence.

How we can help in drug importation cases

Such offences are always serious.  Expert representation at the earliest stage is highly desirable, particularly if you may have acted under duress and have the basis of a defence in law. Sadly, many already very vulnerable people are caught up in drug importation.  It is essential that your story is told.

If you are to be spoken to about an allegation of drug importation then the first thing you must to is take advantage of our free and independent advice in any interview under caution.  We will be able to give you initial advice that might help with the direction of the case.

The benefits of such early legal advice can be found here.

If your case is to go to court then we will make sure that your best case is before a jury at trial.  Alternatively we will ensure that mitigation is obtained and properly presented on your behalf in order to make sure your sentence properly reflects your involvement.

A number of reasons why you might want to instruct VHS Fletchers over other firms can be found here.

You can find your nearest office by following this link and all of our phone numbers are answered 24 hours a day, every day of the year, to ensure that we provide you with emergency advice when you most need it.

drug importation legal representation

Alternatively you can use the contact form below.

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News

Duress (or ‘I had no choice!’)

There is a defence in law known as necessity or duress of circumstances.  It is often raised by our clients in early discussions about their case.

It can be very difficult to demonstrate.  It is only likely to apply in unusual and extreme circumstances.  It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully.  In so doing, a worse situation was avoided by acting in this way. This defence is quite separate from an issue of self-defence which is often far more straight forward.

 

What do I need to demonstrate to show duress?

You will need to show that you only acted for as long as was necessary.  In a driving case where you need to escape a dangerous situation, for example, when you are over the legal alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would no longer have a defence.

You must be able to demonstrate that

  • no other action could be taken
  • there was genuinely a greater evil that was being avoided by behaving in the way that you did
  • your behaviour did not go beyond what was absolutely necessary.

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be a clear and close danger combined with the threat of serious injury or death. A threats to cause damage to property is unlikely to constitute a threat serious enough to provide a duress defence.

If there is a large gap in time between threat and offence so that a person could have gone to the police but did not, it would be extremely unlikely that any defence could succeed.

Gangs, criminality and duress

The defence can often arise in the context of gang violence or where a person might owe money to loan sharks due to drug use. Unfortunately for such individuals, the defence of duress is unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing particular objectives.

In relation to gang membership the court of appeal, in Sharp [1987] QB 853, has ruled:

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.”

As always though, the law on this point is very complex so it will always be best to seek our expert legal advice.

 

What is the legal test for duress?

In Howe [1987] AC 417 the court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

Do duress or necessity of circumstances apply to all offences?

 Duress can never be a defence to murder or attempted murder, but strangely it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

Can necessity apply to using cannabis for medicinal purposes?

The short answer is no.

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point and in 2005 the courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may however amount to mitigation of the offence.

How we can help

The defence of duress and necessity is complicated.  As a result this article can only ever be a short overview.  Whether it can apply in your case will be entirely dependent on the evidence.  It is vital, therefore, that you obtain expert legal advice and representation immediately the police want to speak to you.

You can find details of your nearest office here.

Alternatively you can use the contact form below.

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