The announcement by the Sentencing Council on 24 January of a reduction of sentences for those who are drug mules, and not organisers, is long overdue but greatly to be welcomed. The new guideline applies to all offenders aged 18 and over who are sentenced on or after 27 February 2012 regardless of the date of the offence.

But it is otherwise silent about those already sentenced, because the Sentencing Council has no remit regarding past offences. Unless the guideline is clarified in this respect, there will be serious anomalies, as there will be a two-tier structure of those sentenced before 27 February and those sentenced on or after that date.

There would be some drug mules sentenced before 27 February who would be serving substantially longer sentences than drug mules sentenced on or after that date - even though under the criteria set out in the new guideline the former’s offence could be regarded as being less.

A rash of sentence appeals to the Court of Appeal would be inconvenient but preferable to the obvious injustice otherwise caused. The alternative suggested by the Prison Reform Trust of the government reviewing all such cases would be fairer, because it would ensure that the cases of those overseas drug mules no longer represented would be picked up. In either event it should reduce the prison population by some hundreds of prisoners, a saving which could be recycled back to other hard-pressed areas of the criminal justice system.

Five test cases have now been lodged with the Court of Appeal by this firm, seeking to establish that the new guideline should be treated retrospectively. Solicitors should be aware that if they have had clients sentenced under the former Aramah guidelines, these clients might be entitled to substantially reduced sentences if this challenge is successful, particularly if it is still possible to lodge appeals in time. The primary submission is that if the former Aramah guidelines are now found to be too high, it is not because they have suddenly become too high on 27 February. They have been recognised as being too high for years. Therefore, there is no reason why those already sentenced should not be entitled to share in the benefits of those fortunate enough to be sentenced on or after 27 February.

Illustrative of the anomalies that will now ensue is our lead test case, where a woman sentenced to seven years’ imprisonment on 5 January 2012 would have received five years’ imprisonment or less if sentenced on or after 27 February. There is also a similar pending appeal case where sentence took place on 19 January.

Alured Darlington, solicitor-advocate, Hanwell Chambers, London W7