“A Category Apart” – R v Hussain [2025] EWCA Crim 419 and the Rule that Prison-Drug Supply Warrants Consecutive Sentencing

1. Introduction

The Court of Appeal (Criminal Division) in Hussain confronted a narrow but important sentencing question: when an offender already faces a lengthy term for large-scale drug dealing, must a further conspiracy to bring drugs into a prison be punished concurrently or consecutively? Mr Mohammed Jakir Hussain, aged 30, had amassed multiple convictions for wholesale supply of Class A and Class B drugs. The trial judge imposed an aggregate term of 22 years – 17 years for the drugs offences and an additional 5-year consecutive sentence for a conspiracy to convey prohibited articles into a prison (Count 8). On appeal Hussain challenged only the 5-year consecutive element, arguing it was excessive and offended the principle of totality.

The Court of Appeal dismissed the appeal, articulating a clear message: supplying (or attempting to supply) drugs into the prison estate is a “wholly different category of drugs supply offending than street dealing”; courts are therefore entitled – indeed expected – to impose consecutive sentences that adequately mark that distinct harm, even where the overall term is already substantial.

2. Summary of the Judgment

The Recorder had no bespoke guideline for offences under s.40B Prison Act 1952, so he correctly turned to the Sentencing Council’s Drug Supply Guideline.
Having assessed Hussain’s role as leading and harm as Category 3 (quantity unknown), the judge adopted the Class B starting point of 4 years, uplifted it to 5 years for aggravating factors (sophisticated drone use, repeated attempts), and ordered it to run consecutively.
The Court of Appeal held the 5-year figure was not excessive; starting at 8½ years (Class A) would also have been legitimate, but the Recorder “went low”.
Consecutivity was justified because prison drug-supply is qualitatively distinct from street supply, threatening institutional security and rehabilitation, and therefore warrants separate punishment.
Totality had already been addressed – the judge ran Count 7 (Class A conspiracy) concurrently to temper the overall total; a further concurrency for Count 8 was not required.
The appeal was dismissed.

3. Analysis

3.1 Precedents & Materials Cited

Notably, the judgment contains no detailed reliance on earlier case law; counsel’s attempt to deploy “fact-specific” authorities was rebuffed as providing little guidance. Instead the Court drew upon:

Sentencing Council, “Drug Offences: Definitive Guideline” – to supply the sentencing framework (roles, categories, starting points).
Principle of Totality – reflected in the Sentencing Code s.65 and the Council’s “General Guidelines”.
Evidence of prison-wide drone threats from a custodial manager at HMP Gartree, treated as a community impact statement.

Absence of direct precedent is itself significant: Hussain effectively becomes the leading authority clarifying how to sentence s.40B conspiracies involving drugs when no guideline exists.

3.2 The Court’s Legal Reasoning

Applicable Guideline – In the vacuum of a Prison-Act-specific guideline, the Drugs Guideline is the “nearest analogue” because the gravamen of Count 8 was drug supply. The Guideline’s structured approach (role × harm) was imported.
Role Assessment – “Leading” – Hussain orchestrated three attempts, used specialist equipment, and liaised directly with an inmate, satisfying the “leading role” definition (planning, organising, directing others).
Harm Category – “3” – Quantity was unknown. Under the Guideline, where quantity cannot be ascertained, Category 3 (lesser quantities) is adopted. Importantly, the Court accepted that the drugs were likely Class A, yet still endorsed the Recorder’s decision to proceed on the more lenient Class B scale – evidencing restraint.
Aggravating Factors – Sophistication (use of drones and research), repetition (three attempts) and the broader national problem of prison-drone deliveries justified uplifts.
Mitigating Factor – All three attempts failed; no drugs reached prisoners.
Consecutivity vs. Concurrency
- Supplying drugs into prison undermines custody’s objectives and endangers staff and inmates; it is qualitatively distinct from wholesale street dealing.
- Totality does not require all sentences to be concurrent. The Recorder balanced totality by making Count 7 concurrent, but retained distinct punishment for the prison plot.

3.3 Likely Impact

Sentencing Practice – Trial judges now have clear appellate endorsement for: (a) borrowing the Drugs Guideline for s.40B conspiracies; and (b) imposing consecutive terms where prison supply is charged alongside other drug offences.
Drone-Related Criminality – The judgment highlights drones as an aggravating feature, signalling longer sentences for technology-enabled prison smuggling.
Totality Jurisprudence – Hussain illustrates how the totality principle operates: some counts may be made concurrent to control the final aggregate, yet other counts can – and sometimes must – remain consecutive to reflect “distinct harm”.
Guideline Development – The decision may galvanise the Sentencing Council to draft a dedicated guideline for Prison Act offences, drawing on the framework validated here.

4. Complex Concepts Simplified

Concurrent Sentence – Terms run at the same time. 17 years concurrent on Counts 1, 2, 5, 7 meant the longest of those (17 years) controls.
Consecutive Sentence – One term starts after another finishes. Adding 5 years consecutively took Hussain’s total from 17 to 22 years.
Totality Principle – Courts must ensure the overall punishment is just and proportionate to the totality of offending, not simply add up maxima for each count.
List A Articles (s.40B Prison Act 1952) – Items absolutely forbidden in prisons (e.g., drugs, weapons, phones). Conspiracy to convey them is punishable up to 10 years’ imprisonment.
Harm Category & Role – Under the Drugs Guideline, “harm” is gauged by quantity/purity; “role” measures the offender’s function (leading, significant, lesser). Each cell has a starting point and range.

5. Conclusion

R v Hussain is more than a routine dismissal of a sentencing appeal; it crystallises a new rule of practical importance: where an offender participates in both mainstream drug supply and a prison-drug-supply plot, the latter must be treated as a separate, more serious mischief that ordinarily attracts a consecutive term. The Court’s adoption of the Drugs Guideline for s.40B conspiracies, its emphasis on drone-related aggravation, and its disciplined application of totality together provide the first coherent, appellate-level roadmap for judges confronting this increasingly common scenario.

Going forward, defence teams must anticipate consecutive sentences whenever a prison-supply count appears; prosecutors can rely on Hussain to resist pleas for concurrency; and sentencers have authoritative assurance that marking the “category apart” nature of prison drug supply in this fashion is both principled and proportionate.