There has been speculation among solicitors as to whether conspiracy to supply offences are actually caught by these guidelines at all, as there is no express mention of such an offence type within the guidelines. However, this appears to have been answered within the judgement laid down by Burnett LJ in the Court of Appeal case of R v Khan and others (2013) EWCA Crim 800.

The appellants in this matter had each pleaded guilty to a conspiracy to supply Class A drugs. The judge in the case calculated from records seized that more than five kilos of Class A drugs had been supplied as part of the conspiracy. Such a large volume of Class A drugs would be expected to lead to a sentence in line with category 1 of the guidelines.

However, the appellants each submitted that, since the activity in the case concerned the supply of drugs directly to users on the street (street dealing), the sentencing of their respective cases should be dealt with within category 3 of the relevant guideline (a category indicating the offender had caused lesser harm), which provides: “Where the offence is selling directly to users (street dealing), the starting point is not based on quantity.”

It was argued that, notwithstanding the scale of the operation being conducted by the appellants, the judge was obliged to sentence within the confines of category 3 of the guideline.

His Honour Judge Plumstead took the view that the guidelines did not specifically deal with a situation of this type and that conspiracy was a process and that the conduct was of the sort that the guidelines did not intend to be restricted by category 3. The judge took the view that this was a category 1 case (indicating the offender had caused greater harm) and passed sentence upon the appellants, utilising category 1 as the appropriate guideline.

The relevant guideline only refers expressly to supplying, or offering to supply, or possession of a controlled drug with intent to supply. It gives no express consideration to the offence of conspiracy to supply a controlled drug.

At paragraph 21 of his judgement, Burnett LJ stated that it was “…clear… that the guideline should be applied to an offence of conspiracy to supply a controlled drug”. His reasons for reaching this conclusion were considered within paragraphs 22 - 28 of his judgement and can be summarised as follows:

• There is no positive exclusion of a conspiracy offence as within the guideline
• The fact that the offence was not complete can be sensibly reflected in adjusted sentencing levels
• There is a substantive offence of being concerned in the supply of a controlled drug contrary to section 4 (3) (b) of the Misuse of Drugs Act 1971, and an allied offence under section 4 (3) (c)
• Other constitutions of the court have already applied the guideline in cases of conspiracy to supply
• Prosecution practice varies as to whether to charge a conspiracy or the substantive offence. Many supply offences will involve more than one person so that they could be charged either way. It would be anomalous for commonplace criminal activity to be inside or outside the guidelines depending on the way a prosecutor has chosen to frame the charge
• The language within the guidelines refers to differing roles, influence on others in a chain, links to original source, operational or management functions, involvement of others in the operation and performing a limited function under direction. This is entirely consistent with an activity which could be charged as a multi-offender conspiracy

Burnett LJ considered that the wording of the sentencing guideline for drugs had the intention of ensuring that what would otherwise be a category 4 offence was moved into category 3.

However, it was not “…a justification for those involved in street dealing of quantities which in aggregate go far beyond the amounts shown in category 4 to limit themselves to category 3 no matter what the scale of their dealing is in aggregate…the judge was correct to reject the submissions that he was confined to category 3”.

Burnett LJ went on to consider how the guidelines should be applied, noting that judges and practitioners are expected to approach the guideline with a degree of common sense and flexibility.

He subsequently drew the following further conclusions as to factors which needed to be considered in sentencing, which are summarised below:

• There will be situations in which the judge is sentencing in relation to more than one count. It may be appropriate for the judge to aggregate the quantity of drugs represented in individual counts so as to move to a higher category based on total indicative qualities of the drug involved, and thus truly reflecting the nature of the offending before the court
• Many conspiracies will involve multiple supply transactions. In those circumstances the judge would be entitled to look at the aggregate quantity of the drug involved
• Involvement in a conspiracy may vary for individual offenders within it. One core variant is culpability, which is demonstrated in the guideline by the role of the offender, and which is to be assessed by the non-exhaustive indicative factors set out in the guideline. That will enable the judge to assess the level of involvement of an individual within a conspiracy
• A particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved only in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality
• As a balancing factor, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability

It therefore appears that not only is conspiracy to supply an offence which will be caught by the guideline on drugs but that, in considering the application of the guidelines, a court is entitled to take into account an offender's role as part of a wider criminal activity when considering how to interpret the guidelines and to sentence them appropriately.

It also appears that the quantity of drugs is only to be considered so as to move an offence into a higher category in the guidelines, and not so as to limit the categorisation of the offence where the quantity of Class A drugs involved is in excess of category 3. This is undoubtedly consistent with the Sentencing Council’s position that a sentence imposed upon an offender should reflect the crime they have committed and be proportionate to the seriousness of offence.