Production of a controlled drug

Misuse of Drugs Act 1971, s.4(2)(a) or (b)
Effective from: 27 February 2012

Production of a controlled drug

Misuse of Drugs Act 1971 (section 4(2)(a) or (b))

Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 110 Powers of Criminal Courts (Sentencing) Act 2000 in which case the offence is triable only on indictment.

Class A
Maximum: Life imprisonment
Offence range: Community order – 16 years’ custody

A class A offence is a drug trafficking offence for the purpose of imposing a minimum sentence under section 110 Powers of Criminal Courts (Sentencing) Act 2000

Class B
Maximum: 14 years’ custody
Offence range: Discharge – 10 years’ custody

Class C
Maximum: 14 years’ custody
Offence range: Discharge – 8 years’ custody

Cultivation of cannabis plant

Misuse of Drugs Act 1971 (section 6(2))
Maximum: 14 years’ custody
Offence range: Discharge – 10 years’ custody

User guide for this offence


Step 1 – Determining the offence category

The court should determine the offender’s culpability (role) and the harm caused (output or potential output) with reference to the tables below.

In assessing culpability, the sentencer should weigh up all of the factors of the case to determine role. Where there are characteristics present which fall under different role categories, the court should balance these characteristics to reach a fair assessment of the offender’s culpability.In assessing harm, output or potential output is determined by the weight of the product or number of plants/scale of operation. For production offences, purity is not taken into account at step 1 but is dealt with at step 2.

Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender.

Culpability demonstrated by offender’s role

One or more of these characteristics may demonstrate the offender’s role. These lists are not exhaustive.

Leading role

  • directing or organising production on a commercial scale;
  • substantial links to, and influence on, others in a chain;
  • expectation of substantial financial gain;
  • uses business as cover;
  • abuses a position of trust or responsibility.

Significant role

  • operational or management function within a chain;
  • involves others in the operation whether by pressure, influence, intimidation or reward;
  • motivated by financial or other advantage, whether or not operating alone;
  • some awareness and understanding of scale of operation.

Lesser role

  • performs a limited function under direction;
  • engaged by pressure, coercion, intimidation;
  • involvement through naivety/exploitation;
  • no influence on those above in a chain;
  • very little, if any, awareness or understanding of the scale of operation;
  • if own operation, solely for own use (considering reasonableness of account in all the circumstances).

Category of harm

Indicative output or potential output (upon which the starting point is based):

Category 1

  • heroin, cocaine – 5kg;
  • ecstasy – 10,000 tablets;
  • LSD – 250,000 tablets;
  • amphetamine – 20kg;
  • cannabis – operation capable of producing industrial quantities for commercial use;
  • ketamine – 5kg.

Category 2

  • heroin, cocaine – 1kg;
  • ecstasy – 2,000 tablets;
  • LSD – 25,000 squares;
  • amphetamine – 4kg;
  • cannabis – operation capable of producing significant quantities for commercial use;
  • ketamine – 1kg.

Category 3

  • heroin, cocaine – 150g;
  • ecstasy – 300 tablets;
  • LSD – 2,500 squares;
  • amphetamine – 750g;
  • cannabis – 28 plants;*
  • ketamine – 150g.

 Category 4

  • heroin, cocaine – 5g;
  • ecstasy – 20 tablets;
  • LSD – 170 squares;
  • amphetamine – 20g;
  • cannabis – 9 plants (domestic operation);*
  • ketamine – 5g.

  * With assumed yield of 40g per plant

Step 2 – Starting point and category range

Having determined the category, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. The court should then consider further adjustment within the category range for aggravating or mitigating features, set out on page 243. In cases where the offender is regarded as being at the very top of the ‘leading’ role it may be justifiable for the court to depart from the guideline.

Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.

For class A cases, section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a court should impose a minimum sentence of at least seven years’ imprisonment for a third class A trafficking offence except where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.

Class A
CLASS A Leading role Significant role Lesser role

Category 1 

Starting point

14 years’ custody

Starting point

10 years’ custody

Starting point

7 years’ custody

Category range

12 – 16 years’ custody

Category range

9 – 12 years’ custody

Category range

6 – 9 years’ custody

Category 2 

Starting point

11 years’ custody

Starting point

8 years’ custody

Starting point

5 years’ custody

Category range

9 – 13 years’ custody

Category range

6 years 6 months’ – 10 years’ custody

Category range

3 years 6 months’ – 7 years’ custody

Category 3 

Starting point

8 years 6 months’ custody

Starting point

5 years’ custody

Starting point

3 years 6 months’ custody

Category range

6 years 6 months’ – 10 years’ custody

Category range

3 years 6 months’ – 7 years’ custody

Category range

2 – 5 years’ custody

Category 4 

Starting point

5 years 6 months’ custody

Starting point

3 years 6 months’ custody

Starting point

18 months’ custody

Category range

4 years 6 months’ – 7 years 6 months’ custody

Category range

2 – 5 years’ custody

Category range

High level community order – 3 years’ custody

Class B
CLASS B Leading role Significant role Lesser role

Category 1 

Starting point

8 years’ custody

Starting point

5 years 6 months’ custody

Starting point

3 years’ custody

Category range

7 – 10 years’ custody

Category range

5 – 7 years’ custody

Category range

2 years 6 months’ – 5 years’ custody

Category 2 

Starting point

6 years’ custody

Starting point

4 years’ custody

Starting point

1 year’s custody

 

Category range

4 years 6 months’ – 8 years’ custody

Category range

2 years 6 months’ – 5 years’ custody

Category range

26 weeks’ – 3 years’ custody

Category 3 

Starting point

4 years’ custody

Starting point

1 year’s custody

Starting point

High level community order

Category range

2 years 6 months’ – 5 years’ custody

Category range

26 weeks’ – 3 years’ custody

Category range

Low level community order – 26 weeks’ custody

Category 4 

Starting point

1 year’s custody

Starting point

High level community order

Starting point

Band C fine

Category range

High level community order – 3 years’ custody

Category range

Medium level community order – 26 weeks’ custody

Category range

Discharge – medium level community order

Class C
CLASS C Leading role Significant role Lesser role

Category 1 

Starting point

5 years’ custody

Starting point

3 years’ custody

Starting point

18 months’ custody

Category range

4 – 8 years’ custody

Category range

2 – 5 years’ custody

Category range

1 – 3 years’ custody

Category 2 

Starting point

3 years 6 months’ custody

Starting point

18 months’ custody

Starting point

26 weeks’ custody

Category range

2 – 5 years’ custody

Category range

1 – 3 years’ custody

Category range

High level community order – 18 months’ custody

Category 3 

Starting point

18 months’ custody

Starting point

26 weeks’ custody

Starting point 

High level community order

Category range

1 – 3 years’ custody

Category range

High level community order – 18 months’ custody

Category range

Low level community order – 12 weeks’ custody

Category 4 

Starting point

26 weeks’ custody

Starting point

High level community order

Starting point

Band C fine

Category range

High level community order – 18 months’ custody

Category range

Low level community order – 12 weeks’ custody

Category range

Discharge – medium level community order

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. Where appropriate, consider the custody threshold as follows:

  • has the custody threshold been passed?
  • if so, is it unavoidable that a custodial sentence be imposed?
  • if so, can that sentence be suspended?

Where appropriate, the court should also consider the community threshold as follows:

  • has the community threshold been passed?

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions, having regard to a) nature of the offence to which conviction relates and relevance to current offence; and b) time elapsed since conviction (see shaded box at page 241 if third drug trafficking conviction)
  • Offence committed on bail

Other aggravating factors include

  • Nature of any likely supply
  • Level of any profit element
  • Use of premises accompanied by unlawful access to electricity/other utility supply of others
  • Ongoing/large scale operation as evidenced by presence and nature of specialist equipment
  • Exposure of others to more than usual danger, for example drugs cut with harmful substances
  • Attempts to conceal or dispose of evidence, where not charged separately
  • Presence of others, especially children and/or non-users
  • Presence of weapon, where not charged separately
  • High purity or high potential yield
  • Failure to comply with current court orders
  • Offence committed on licence
  • Established evidence of community impact

Factors reducing seriousness or reflecting personal mitigation

  • Involvement due to pressure, intimidation or coercion falling short of duress, except where already taken into account at step 1
  • Isolated incident
  • Low purity
  • No previous convictions or no relevant or recent convictions
  • Offender’s vulnerability was exploited
  • Remorse
  • Good character and/or exemplary conduct
  • Determination and/or demonstration of steps having been taken to address addiction or offending behaviour
  • Serious medical conditions requiring urgent, intensive or long-term treatment
  • Age and/or lack of maturity where it affects the responsibility of the offender
  • Mental disorder or learning disability
  • Sole or primary carer for dependent relatives

Step 3 – Consider any other factors which indicate a reduction, such as assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.

For class A offences, where a minimum mandatory sentence is imposed under section 110 Powers of Criminal Courts (Sentencing) Act, the discount for an early guilty plea must not exceed 20 per cent.

Step 5 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.

Step 6 – Confiscation and ancillary orders

In all cases, the court is required to consider confiscation where the Crown invokes the process or where the court considers it appropriate. It should also consider whether to make ancillary orders.

Step 7 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 8 – Consideration for remand time

Sentencers should take into consideration any remand time served in relation to the final sentence at this final step. The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.