What is the ‘third-strike’ class A drugs rule? What happens when I am convicted of my third drug dealing offence?

England and Wales have “mandatory minimum sentences” for instances where someone has been found guilty or pleaded guilty to a number of related offences. This is put in force by the Sentencing Act 2020, section 313. Trafficking class A drugs offences are one type of offence that has a mandatory minimum sentence. If you have been convicted of three of these offences, the Judge will have to sentence you to at least 7 years in prison, unless the Judge thinks it would be “unjust” to do so.

This is also known as the “three-strike rule” in sentencing law in England and Wales. This is because if you reach three strikes in drugs trafficking convictions, you must serve 7 years in prison unless the Judge thinks that it would be unjust to do so considering all the circumstances.

Does this apply to me?

A Judge sentencing you may have to apply the mandatory minimum sentence if all of the following apply to your case:

1. You are convicted of a class A drug trafficking offence, which you did on or after 1^st October 1997.
2. At the time of sentencing, you must be over 18 years old, and, already have two other class A drug trafficking convictions. It does not matter how old you were during the last two convictions.
3. For the two other drug trafficking convictions to count, you must be convicted of one, before committing the other conviction. This means that if you have committed two separate drug trafficking offences, but have not yet been convicted of either, they will not count as two separated class A drug trafficking offences for the purposes of applying the mandatory minimum sentence.

Essentially for the ‘three strikes’ to apply, you have to have been convicted of three offences one after each other, and they have to be related to class A drugs. Some examples of class A drugs are:

• cocaine
• crack cocaine
• ecstasy (MDMA)
• heroin
• LSD
• magic mushrooms
• methadone
• methamphetamine (crystal meth)

Drugs such as cannabis, codeine, ketamine, spice, GHB, steroids, are not class A drugs and are instead class B or C drugs. So, if you have been convicted of a “drugs trafficking offence” but for a class B or C drug, it will not count towards your “three strikes”.

There is a difference in sentence depending on whether you are over 21 at the time of your sentence. When you are getting sentenced and you are over 21 years old, the Judge can impose the mandatory sentence of 7 years in prison. If you are under 21 years old at the time of being sentenced, you will be sentenced to a 7-year period of detention in a younger offender institution instead. So, the difference is where you serve your sentence, and you may be moved once you are over 21 years old.

What is a “drug trafficking offence”?

The following offences are examples that fit into the definition of “drug trafficking offence” and they will apply if committed anywhere in the United Kingdom:

• Unlawful production or supply of controlled drugs of class A
• Possession of a controlled drug of class A with intent to supply
• Permitting certain activities relating to controlled drugs of class A
• Improper importation of goods – such as controlled drugs of class A
• Using a ship for illicit traffic in controlled drugs of class A

This is quite the full list, however, all of the relevant drugs trafficking offences are listed in paragraph 1 of Schedule 2 to the Proceeds of Crime Act 2002, and paragraph 10 of the same Schedule. Offences were you are helping or agreeing to take part in drug trafficking offences will also count towards your ‘three strikes’.

A conviction of one of the above listed offences in another European Union country of an offence committed on or after 16 August 2010 would also count towards the three strikes. There are some other more unique circumstances where offences would count towards the three strikes, for instance, a drug trafficking offence committed whilst serving in the Armed Forces. For further information as to whether your convictions count towards the three strikes, consult the legal team at Sonn Macmillan Walker Solicitors.

What would count as “unjust”?

Where a Judge thinks it is “unjust” to do so in your circumstances, the Judge can choose not to give the minimum term of 7 years in prison as a sentence.

Whether it would be unjust to pass the 7-year mandatory is up to the Judge to decide. They must consider an offender’s circumstances, and it is very fact specific to each case. Factors that the Court has previously considered are health factors or background developmental difficulties which made an offender commit offences at a young age. This is not an easy hurdle to meet, and someone will have to show that it really would be unjust to be sentenced to a 7-year prison sentence.

Given that this is very dependent on a case-by-case basis, you should work closely with your legal team to persuade the Judge that it would be unjust to impose the mandatory minimum in your case.

Why are there mandatory minimum sentences?

Although it can seem harsh, there are reasons for having mandatory minimum sentences. Drugs offences aren’t the only ones with mandatory minimum sentences, other examples include for burglary, knife possession, and firearms offences. There are several reasons why the UK Parliament may have passed them:

1. Consistency in sentencing – mandatory minimums make sure that offenders convicted of serious crimes get a similar baseline of punishment. This avoids sentences which are too short or too long for very similar cases.
2. Deterrence of future offending – having a serious minimum sentence such as 7 years sends a message that certain crimes carry serious consequences. This is to discourage the person being sentenced, and the public from committing the offence.
3. Increase confidence in sentencing – the public expect stronger sentences for serious crimes, mandatory minimums uphold trust that justice will be served.
4. Protection of the public – for repeat convicted offenders, mandatory minimums ensure that they are removed from society for a period of time to prevent reoffending.

Despite these well-meaning goals, mandatory minimum sentences are controversial. It is not an accepted fact that harsh sentences deter future crime. There are also some people who get three strikes, but their offences are relatively low level (for example, they got caught supplying very small amounts of cocaine three separate times), and may therefore receive disproportionately tough sentences. There has been some research that these minimums do not actually deter crime and just increase the prison population. Finally, a Judge might not be able to use their judgment or discretion as much to decide on their sentence.

Contact Sonn Macmillan Walker Solicitors if you need advice or assistance with a drugs sentencing case.