England and Wales Court of Appeal (Criminal Division) Decisions

ATTORNEY GENERAL'S REFERENCE NO. 1 OF 2000 UNDER SECTION 36 OF CRIMINAL JUSTICE ACT 1972 R v. JT [2000] EWCA Crim 61 (20th November, 2000)

Case No: 2000/01387/R2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 20 November 2000

1. Her Majesty's Attorney General seeks the opinion of the court on the following question:
"What is required to be proved for an instrument to purport to have been made in circumstances in which it was not in fact made, so as to establish falsity for the purposes of the Forgery and Counterfeiting Act 1981 (`the 1981 Act') and accordingly as to whether or not the tachograph record sheet in the instant case was capable of being a false instrument."

2. For the purpose of giving our opinion, the facts can be shortly summarised as follows:-
3. On 6 March 1998 the driver of a passenger coach was engaged on a journey from the United Kingdom to Germany which involved passing through Belgium. The driver's record which the tachograph produced indicated that between 16:43 and 17:24 hours on 6 March the driver was taking a break from driving as was required by law and therefore the vehicle was being driven by another driver. The vehicle was shown to have travelled for 11 kilometres during this time. In fact there was only one driver in the vehicle and accordingly the record was inaccurate in indicating that the driver had been taking a break.
4. The driver's record showed that he had been having a break when this was not the case, because of the manner in which the driver operated the tachograph. Either he operated a switch on the tachograph recorder which should only be operated when he is not the driver, or he inserted the disc on which the tachograph mechanically records information in a position which is used by a non-driver.
5. On 12 July 1999 at the Crown Court at Coventry, the driver pleaded not guilty to forgery of a tachograph record sheet contrary to Sections 1 and 9 of the 1981 Act. After the plea had been taken and prior to the case being opened, the judge heard legal argument and having done so, ruled that the conduct of the driver in producing a false record could not amount to the offence charged under the 1981 Act. In view of the judge's ruling, the prosecution offered no evidence and the jury acquitted the respondent.
The Legislation

6. The preamble to the 1981 Act describes it as an Act, ` to make fresh provision ... with respect to forgery and kindred offences'. Section 1 of the Act provides:-

"A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it, to do or not to do some act to his own or any other person's prejudice."

7. Section 9 defines when an instrument may be false and what making a false instrument involves. The terms of the section are as follows:-

"(1) An instrument is false for the purposes of this Part of this Act -
(a) if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form; or
(b) if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or
(c) if it purports to have been made in the terms in which it is made by a person who did not in fact make it in those terms; or
(d) if it purports to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms; or
(e) if it purports to have been altered in any respect by a person who did not in fact alter it in that respect; or
(f) if it purports to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or
(g) if it purports to have been made or altered on a date on which, or at a place at which or otherwise in circumstances in which, it was not in fact made or altered; or
(h) if it purports to have been made or altered by an existing person but he did not in fact exist.
2. A person is to be treated for the purposes of this Part of this Act as making a false instrument if he alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration)."
8. It will be observed from the language of the section that in the case of each of the eight situations described in Section 9(1), the instrument is required to purport to have been made (that is, falsely claimed to have been made) or altered in one of a number of different ways.
9. We are concerned in this appeal with Section 9(1)(g). This deals with instruments which purport to have been made or altered on a date or at a place `or otherwise in circumstances in which' they were not made or altered.
10. The enactment of the 1981 Act was proceeded by a Law Commission Report on Forgery and Counterfeit Currency (Law Commission No.55). The provisions of the 1981 Act with which we are concerned are based on that Report. The Law Commission states that:
"In the many and varied activities of modern society it is necessary to rely to a large extent on the authenticity of documents as authority for the truth of the statements which they contain. Indeed, in the vast majority of forgery cases the purpose of the forger is to lull the person to whom the document is presented into a false position in which he will be unlikely, because of the apparent authenticity of the document, to make further enquiries into the correctness of the facts related. The same is not true of false statements contained in a document which carries no spurious authenticity. A letter by an applicant for an appointment setting out falsely his qualifications is in quite a different category from a letter of recommendation purporting to come from a previous employer."
The Authorities
11. In order to understand the learned judge's ruling, it is necessary to examine a series of decisions of this Court. This is because of the conflict between two decisions of this Court which is alleged to exist. The decisions are Jeraj [1994] Crim L R 595 and Warneford and Gibbs [1994] Crim L R 753. We have been provided with transcripts of those cases, but the reports in the Criminal Law Review are helpful for the commentary on the cases made by Professor Sir John Smith. We have also been considerably assisted by an article also in the Criminal Law Review by Mr R Leng entitled `Falsity in Forgery' [1989] Crim L R 687. Mr Leng helpfully traces the historical development of forgery. Mr Leng explains that although a forgery at common law was traditionally concerned with authorship only, the offence was extended to cover cases in which the instrument was authentic in point of authorship but purported to be made on a false date or at a false time when that date or time was of significance to the instrument. The Forgery Act 1913 extended the definition of the offence to include falsity as to the place where the instrument was made. The final step in the history which is relevant, is the inclusion of the critical words `other circumstances' in Section 9(1)(g) of the 1981 Act. It is the failure of the Law Commission to explain what these words were intended to achieve which has given rise to the difficulties.
12. The first case to which reference should be made is Donnelly [1984] 79 Crim App R 76 and [1984] Crim L R 490. The case concerned a written valuation prepared by Donnelly of scheduled items of jewellery. The valuation was on a printed standard form and contained a statement that Donnelly had examined the jewellery and that the figures given represented their insurance value. He signed the document and stamped the owner's name and address below his signature. There was no jewellery to be valued and the valuation was intended to defraud an insurance company. Donnelly was charged with forgery contrary to Section 1 of the 1981 Act. At the trial, the judge was of the opinion that the valuation was capable of being a false instrument within the meaning of Section 9(1)(g). He directed the jury that an instrument could be false if it purported to be made in circumstances in which it was not in fact made. On appeal against his conviction, it was contended on behalf of Donnelly that a jewellery certificate was not capable of being a false instrument.
13. Lawton L.J. in a characteristically forthright and succinct judgment stated:-
"In our judgment the words coming at the end of paragraph (g) `otherwise in circumstances . . .' expand its ambit beyond dates and places to any case in which an instrument purports to be made when it was not in fact made. This valuation purported to be made after the appellant had examined the items of jewellery set out in the schedule. He did not make it after examining these items because they did not exist. That which purported to be a valuation after examination of items was nothing of the kind: it was a worthless piece of paper. In our judgment the trial judge's direction was correct."
14. The report of this case in the Criminal Law Review was followed by a penetrating comment by Professor Sir John Smith. He stated:
"If the present case is followed, the law of forgery is extended far beyond its proper bounds. Whenever an instrument tells a lie about some alleged past fact it purports to be made after the fact occurred. There was nothing peculiar about the alleged fact of having examined and valued the items of jewellery. Thus, virtually all documents telling lies would be capable of amounting to forgery. . . . The sort of circumstances which the provision is intended to cover is the case where an instrument purports to be made in the presence of a witness who was not in fact present."
16. We understand and sympathise with the desire not to give an excessively broad interpretation to Section 9(1)(g). The material words in 9(1)(g) are the only non-specific category of falsifying which features in Section 9(1). In addition we are mindful of the fact that forgery is unique among fraud offences in that the offence consists in creating the forged instrument even though the instrument has not yet been, and may never be, used to deceive anyone. In that sense it makes a preparatory act punishable under the criminal law. However, the approach in Donnelly can be adopted without going so far as to make any instrument which tells a lie about some alleged past fact a forgery. It is of the essence of a valuation that the articles, the subject of the valuation, have been examined. This is because a bona fide valuation requires some examination of what is the subject of the valuation. The lie in Donnelly therefore related to an event which must have occurred before a genuine valuation could be made.
17. The next case to which it is necessary to refer is the case of Lack [1987] 84 Crim A R 342. The case involved Section 9(1)(a) and not 9(1)(g). (The judge withdrew from the jury consideration of falsity under Section 9(1)(g)). It is not therefore a direct authority on the interpretation of Section 9(1)(g) and it is sufficient for us to indicate that we find Lawton L. J.`s comments regarding his earlier judgement in Donnelly puzzling.
18. More [1988] 86 Crim App R 234 is the next case to which we were referred by Mr Hilliard in his carefully refined submissions on behalf of the Attorney General. More was a decision of the House of Lords, but like Lack did not directly concern Section 9(1)(g). The present significance of the case is the statement of Lord Ackner (at p.253) that:
"It is common ground that the consistent use of the word `purports' in each of the paragraphs (a) to (h) inclusive of Section 9(1) of the Act imports a requirement that for an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered."
19. Turning to the case of Jeraj [1994] Crim L R 595; this case involved a bank officer who wrote a note in which he said that he had received a letter of credit and that he had endorsed it. In fact he had neither seen nor endorsed the letter of credit. The note was presented to third parties who, no doubt because it was written on the bank's notepaper, relied on it in advancing money. This court applied Donnelly in dismissing the appeal. In giving a judgment of the court, Lord Taylor C. J. said:-
"It will immediately become apparent that the circumstances of that case are not wholly dissimilar from the circumstances of the present case. Here, the document in question purported to say that the writer had received the relevant credit note and had given it his full endorsement. In fact, there was no credit note at that time, so he had not only not seen it, but he could not therefore have endorsed it. In the Donnelly case, the jewellery did not exist; in the present case, the letter of credit did not exist."
20. On the basis of this reasoning, and relying on the fact that Donnelly had not been disapproved of in More, this Court concluded that the judge was right to hold himself bound by Donnelly. Lord Taylor also indicated that unless he considered that Donnelly was `plainly wrong', this Court would be bound to follow it. He did, however, add that he thought `it was right'.
21. The final case to which it is necessary to refer is the case of Warneford and Gibbs [1994] Crim L R 753. Although this case was decided shortly after Jeraj, the former having been decided on 10 February 1994 and the latter on the 28 April 1994, unfortunately, the second decision was given in ignorance of the earlier decision. Warneford and Gibbs involved a mortgage fraud and the document in question was a letter purporting to be from one Brigdon, the employer of the mortgage applicant Warneford, confirming that Warneford was employed by Brigdon's company. In fact Warneford was not so employed. The company was a real company but the letter was signed not by Brigdon, but by a friend of Warneford's father, named Maloney. The prosecution did not rely on the fact that the document was signed by Maloney using a false name, but rather on the fact that he was not the accused's employer. The prosecution argued that this was a `circumstance' in which the document on its face purported to be made, thus bringing the document within Section 9(1)(g) of the 1981 Act. The judgment of this Court was given by Laws J. In the course of his judgment, Laws J. not only referred to Donnelly, but also Lack and Lawton L J's puzzling comments in that case. He then went on to say that Donnelly could not stand with More. He continued:-
"To say that the document purported to be a true valuation, but was not, is to urge no more than that it purported to be a true representation of its contents, but was not; it is, in effect, to embrace within the concept of forgery every document which tells a lie about its subject-matter. That cannot be the right approach. It fails to ask and answer the question whether the document tells a lie about itself. It amounts to a misconstruction of the words ` . . . purports to have been made . . . in circumstances in which it was not in fact made . . .
22. If the court in Warneford and Gibbs had been aware of the decision in Jeraj, we doubt whether they would have taken this view as to the correctness of Donnelly. Certainly, having regard to Lord Taylor's judgment, it is difficult to say that Donnelly was `plainly wrong'.
23. However, earlier in his judgment Laws J. had said this:
"The expression `otherwise in circumstances in which it was not in fact made' must, in our judgment, refer to the circumstances of the making of the document just as surely as the references in the sub-paragraph to date and place concern the date and place on or at which the document was made. If, for example, the document on its face purports to have been made in the presence of certain named individuals who in fact were not present at all, it would fall within the sub-paragraph. Likewise, a document whose words purported to have been dictated by a particular person, when it was in fact entirely the work of the writer, would come within the definition. So would a document purporting to have been made at a different time of day from its actual making. Other examples may suggest themselves. But in every case the lie in the document must relate to the actual circumstances of the document's making. A lie about other facts, extraneous to the document, does not suffice; such a lie may go in proof of other offences (notably under the Theft Act), but cannot establish forgery. The offences which, under the Act of 1981, require proof of forgery within Section 9 are exclusively concerned with the document itself."
24. Pausing here, Mr Hilliard on behalf of the Attorney General accepts this as a perfectly accurate and helpful statement of the law. The difficulty is with its application. In that case, counsel on behalf of the Crown argued that the distinction was between a false reference given by someone who was not the subject's employer at all, but who represented himself as such, and on the other hand one given by the true employer which nevertheless tells lies about the nature or duration of the employment. Laws J. said of this distinction: "The criminal law cannot be made to depend upon disreputable metaphysics of this kind". He relied in support of that on what Lord Ackner said in More. However, as already pointed out, More was not itself concerned with Section 9(1)(g). Furthermore, as will be apparent from the citation which we have made from the Law Commission's Report on which Section 9(1)(g) is based, the Commissioners themselves draw the very distinction of which Laws J. is so critical.
25. In view of the decision of this court in Jeraj, we have come to the conclusion that the decision of Donnelly as still binding upon us. Both Donnelly and Jeraj should however be restricted in their application so that they apply only where circumstances need to exist before the document can be properly made or altered. If those circumstances do not exist there will then be a false instrument for the purposes of Section 9(1)(g). If the circumstances do not exist the document is telling a lie about itself because it is saying it was made in circumstances which do not exist. It follows that Warneford and Gibbs must be regarded as coming to the wrong conclusion on the facts, though we are in agreement with certain of Laws J.'s remarks, to which we referred earlier. In each case where we would hold the instrument to be false it could not have been made honestly if the circumstances which we have identified did not exist. Thus in Donnelly you could not make a valuation without having seen the jewellery which you purport to have valued. In Jeraj there had to be a Letter of Credit which could be endorsed. In Warneford and Gibbs there had to have been the relationship of master and servant before you could make a reference as an employer relating to an employee. The need for the existence of these circumstances prior to the making of the instrument explains why if the circumstances do not exist the document is telling a lie about itself.
26. Mr Whelan, on behalf of the respondent, does not challenge Mr Hilliard's approach to the authorities. However, he contends that the position in so far as his client is concerned is straightforward. If the record had not been produced by a tachograph disc in the instant case, it would be written out by the driver. He says that then the error would not be as to the making of the document, but rather as to its contents. It would contain a lie, namely that there had been another driver, but that would not be referable to the making of the document. With regard to a document produced by the driver, we would accept Mr Whelan's argument. However, we have come to the conclusion that this approach cannot be adopted in relation to the document produced by the tachograph. The tachograph record is produced continuously over the period indicated by the record. It is being made throughout this time. In so far as the record was being produced in this case while the first driver was shown as driving there was no falsity in relation to its making. It was, however, capable of being a false instrument during the period when it showed that the first driver was not driving and that a second driver must therefore have been driving. To make that part of the instrument, it was essential for there to be a second driver during the period the tachograph was operated in the second driver position. There was no second driver and therefore the instrument was false. The circumstance which was false was that the record was being made during a period when there wrongly purported to be a second driver who was driving.
The answer to the question of law
27. The question posed by the Attorney General in this reference is in very wide terms. We are unable to indicate all the circumstances where falsity for the purposes of the 1981 Act could be established. We do, however, give our opinion on the second part of the question. We conclude that in the instant case, the tachograph record sheet was capable of being a false instrument. We come to that conclusion because an instrument will be false for the purposes of Section 9(1)(g) if it is a document which requires, before it can be made or altered that there should exist or should have existed a set of circumstances and those circumstances do not or did not exist.