England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26 October 2012

LORD JUSTICE TOULSON:

1. On 16 August 2012 in the Crown Court at Snaresbrook before His Honour Judge Owen the applicant pleaded guilty to possession of another's identify document without reasonable excuse, contrary to section 6 of the Identity Documents Act 2010. He was sentenced to six months' imprisonment. His application for leave to appeal against sentence has been referred directly to the full court by the Registrar because of the shortness of the sentence. We grant leave to appeal.
2. The facts can be shortly summarised. The appellant is a citizen of Uganda. He has no permission to remain in the United Kingdom. It is not clear when or how he entered this country, but the judge was told that he came here in 2004 on a visitor's visa and overstayed.
3. On 26 November 2011 the applicant was arrested for the theft of a handbag in a nightclub, to which he later pleaded guilty and in respect of which he was made the subject of a community order. When he was arrested by the police he told them that his name was Oscar Lubega. He maintained that story throughout his interview. His property was searched. Among the items found on him were a driving licence and bank cards in the name of Oscar Lubega. The driving licence bore a photograph which, however, did not match the appellant. It was accepted by the prosecution that it belonged to a real person whose name was Oscar Lubega. The appellant ultimately admitted to the police that his true name was not Oscar Lubega, but Roderick Goodings.
4. In due course the appellant appeared before the Crown Court on an indictment which charged him with an offence of possession of a false identity document with improper intention, contrary to section 4(1) of the Identity Documents Act 2010. To that charge he pleaded not guilty. The prosecution subsequently applied for leave to amend the indictment to include a charge of possession of another's identity document, contrary to section 6 of the 2010 Act. The appellant pleaded guilty to that lesser offence, and his plea of not guilty to an offence under section 4 was accepted by the prosecution. It will be necessary shortly to look at the difference between the two offences.
5. Notwithstanding that the prosecution had accepted the appellant's plea of not guilty to an offence under section 4, the case was opened to the judge as though he were guilty of an offence under that section. Emphasis was placed on the use which he made of the driving licence to support his impersonation of Mr Lubega.
6. In his sentencing remarks the judge said:

"The fact is you were here and using that name [Lubega]. That is the name you used when you were arrested; that is the name you persisted in and, in fact, you did so because you arrived into this country in 2004 and remained here illegally since and the name you were using was [Lubega]. The name you used on this day was [Lubega]. .... It seems clear to me you were using that identification; plain as a pikestaff, that is exactly what you were doing.

It is a serious matter."

7. The Notice of Appeal advances a number of grounds of appeal, but the key criticism is that the judge erred in principle in taking irrelevant factors into account in passing sentence.
8. That brings us back to the difference between section 4 and section 6 of the Identity Documents Act 2010. A person commits an offence under section 4 if he has, with an improper intention, an identity document in his possession which, among other things, relates to someone else. An improper intention is established if, among other things, the defendant has the document in his possession "for establishing, ascertaining or verifying" personal information about himself or anyone else. The effect of this is that a person is guilty of an offence under section 4 if he is in possession of identity documents relating to someone else with the intention of impersonating that other person. The offence carries a maximum sentence of ten years' imprisonment on conviction on indictment.
9. Section 6 makes it an offence for a person to have without reasonable excuse in his possession an identity document which relates to someone else. The maximum sentence for that offence after a trial on indictment is two years' imprisonment.
10. There was in this case ample evidence to support the original charge under section 4, but for reasons which this court is unable to fathom, the prosecution accepted the appellant's plea of not guilty to that offence. They therefore chose not to maintain the allegation that he had the document in his possession with the intention of impersonating someone else. Rather they accepted a plea of guilty to an offence of simple possession without reasonable excuse.
11. Having accepted a plea of not guilty to section 4, it was irrelevant and therefore improper for the prosecution to argue that the appellant, in fact, had the document in his possession with the intention of impersonating Mr Lubega. The judge therefore erred in principle in sentencing him on the basis that he had been, and was, using that document as a cover to prevent discovery of the fact that he was unlawfully in the United Kingdom. On the facts as the judge found them, and if the case had been charged under section 4, no possible complaint could have been made against the sentence. However, the message which follows from this is that the prosecution ought not to accept a plea of guilty to a charge which does not properly reflect the evidence or enable them properly to place before the court the facts which go to show the true gravity of the conduct. No criticism can properly be made of the judge in this regard, because the matters to which we have referred were not drawn to his attention. On the contrary, he was positively led to approach the matter on a wrong basis by the manner in which the prosecution presented the case, notwithstanding the plea of not guilty to section 4 which they had accepted.
12. It follows that the primary criticism of the sentence is well-founded. The question then arises what this court should do. Miss Fapohunda has researched the authorities and has not been able to place before this court any authority which gives guidance as to the proper sentence for the lesser offence under section 6. The cases to which she has drawn the court's attention are all cases where the court has been concerned to look at the usage of the documents by the person concerned and the intent which they had in possessing them. They are of no assistance in this case.
13. We have tried to inform ourselves as to the magistrates' court's practice in relation to this type of offence, but with only limited success. In the time available to the court we have tried to do some research into the genesis of the separate offences in order to see whether we can properly inform ourselves as to the mischief against which they were aimed. The explanatory notes to the 2010 Act tell us that what is now section 4 is a re-enactment of what had been section 25(1) and (2) in the Identity Cards Act 2006; and what is now section 6 is a re-enactment of what had been section 25(5) of the 2006 Act. The explanatory notes to the 2006 Act show that that Act followed a lengthy period of consultation which began in 2002. A number of Green or White Papers were issued and the Home Office Affairs Select Committee carried out an inquiry into all aspects of identity cards, which included pre-legislative scrutiny of the draft Bill. The Committee reported on 30 July 2004 (HC130). We have not had the time or opportunity to examine any of those documents to see what light they throw on the reasoning behind the enactment of these different offences and the mischief at which they were aimed.
14. If this had not been a short sentence we would have adjourned the matter in order to seek the help of the prosecution, but that would be quite wrong in the light of the length of the sentence.
15. In those circumstances we have to do the best we can on the limited material available to us. We have concluded that there is plainly an important distinction between an offence of possessing documents of this kind with an improper motive and an offence of simple possession without reasonable excuse. That difference is reflected in the very great difference in the sentences available to the court.
16. In this instance we propose to quash the sentence passed by the court and to substitute a sentence of two months' imprisonment. We emphasise that that is in no way to be regarded as a guideline about how courts should approach the sentencing exercise in a case of this kind. Our researches have raised more questions than answers. If further cases of this kind come before this court, we hope that the parties will be properly informed so as to be able to give the court greater assistance than anybody has been able to give us today. It rather looks to us that the broader, catch-all offence was introduced at a time when Parliament was wanting to exercise some measure of control over forged identity cards, or identity cards being in the possession of others without any proper reason. It is not difficult to see that the legislature may have thought it was broadly a bad thing to have in circulation forged identity documents or documents belonging to people other than the holder. But that is merely a surmise. It may well be that further education into the circumstances in which the legislation was first introduced will give the court a much clearer understanding of the sort of range of behaviour at which this lesser offence is truly aimed.
17. For those reasons this appeal is allowed to the extent which we have indicated.
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