Fitzgerald, R. v [2003] EWCA Crim 576

Case No 2001/02957/W4[2003] EWCA Crim 576
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 5 th March 2003
Before
LORD JUSTICE PILLMR JUSTICE STANLEY BURNTONHIS HONOUR JUDGE FAWCUS
Between
The QueenCrownJohn Cornelius FITZGERALDDefendant
Rachel Lawrence for CrownNemone Lethbridge for AppellantHearing Hearing date: 31 st January 2003
JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
[1]On 10 May 2001 in the Crown Court at Middlesex Guildhall before His Honour Judge Karsten QC and a jury, John Cornelius Fitzgerald was convicted of an offence of having a false instrument in his custody or under his control. He was sentenced to six months imprisonment. He was acquitted on a count of having a false instrument with intent and of an offence of handling stolen goods. He appeals against conviction and sentence by leave of the single judge. The appeal raises a point on the construction of section 5 of the Forgery and Counterfeiting Act 1981 (“the 1981 Act”).[2]On 6 July 2000, the appellant’s home was searched by police officers who discovered a passport in the name of a Mr Barfoot but bearing the appellant’s photograph. Mr Barfoot’s car had been broken into some weeks before and various items taken, including his wallet. He was unaware that his passport too was missing until visited by police officers investigating the present alleged offences. When interviewed, the appellant said he intended to use the passport as a means of identification to open a bank account or obtain credit but he never intended to use it for travelling. In the event, he obtained cash elsewhere and did not use the passport for the purpose of obtaining credit.[3]In evidence, the appellant said he bought the passport for £23.50 from a man selling shirts in Oxford Street. The appellant had passport photographs taken. He gave them to the street trader and later obtained the passport from the trader with his own photograph in it. He was told that he could not expect to use it successfully for travelling. The appellant also said that the most he had, in a moment of madness, was a half-baked idea that he would use the passport to obtain credit.[4]In those circumstances there was a discussion at the close of the defence case about adding an alternative charge to an indictment including a count of handling stolen goods and a count based on section 5(1) of the 1981 Act. The judge decided to leave to the jury the opportunity to bring in a verdict under section 5(2) of the 1981 Act as an alternative to the offence under section 5(1). Miss Lethbridge, for the appellant, objected to that course on the ground that the offence under section 5(2) was not, under section 6(3) of the Criminal Law Act 1967 (the 1967 Act”), strictly alternative to that under section 5(1).[5]Section 5 of the 1981 Act provides:
“(1) It is an offence for a person to have in his custody or under his control an instrument to which this section applies which is, and which he knows or believes to be, false, with the intention that he or another shall use it 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. (2) It is an offence for a person to have in his custody or under his control, without lawful authority or excuse, an instrument to which this section applies which is, and which he knows or believes to be, false. (3) … .”
[6]Section 6(3) of the 1967 Act provides:
“Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.”
[7]Miss Lethbridge accepts that a fresh count could have been added to the indictment, provided it caused no injustice to the defendant. Her client was prepared to plead guilty to a count alleging an offence under section 5(2). Miss Lethbridge, in submissions to

the judge referred to that option as:

“The simple solution which in no way prejudices the defendant, because he has admitted it, is to add that count.”
[8]For reasons which do not readily emerge, the judge declined to follow that course and left the possession charge as an alternative under section 6(3). Miss Lethbridge persisted, stating that she was “trying to propose a solution which was simple for everyone concerned”. In the event, the jury acquitted of the offence under section 5(1) but convicted under section 5(2).[9]Miss Lethbridge’s first submission that the appellant did not have a fair trial because the alternative was introduced only after the completion of the defence case has no merit in present circumstances. It is not suggested that the defence would have been conducted differently had a count been included under section 5(2) or that the appellant had any lawful authority or excuse for possessing the false document. What is suggested is that the appellant was prejudiced in being deprived of the opportunity to plead guilty at the first opportunity and agree a basis for plea. While that submission may be relevant to sentence, it does not affect the fairness of the procedure which led to a verdict of guilty. Counsel told the Court that her client was prepared to plead guilty to an offence under section 5(2), provided it was included in a separate count.[10]The second submission is that the conviction is unsustainable because the jury were not entitled under section 6(3) of the 1967 Act to bring in the alternative verdict. It was not an alternative within the meaning of the subsection, which should be construed in the appellant’s favour.[11]Before they retired, the jury were handed a typed document which had every appearance of being an additional count on the indictment, save that the count number was deleted and a handwritten note, which provided “alternative for jury to consider if they can’t agree on Count 1”, substituted. The document stated:
“JOHN CORNELIUS FITZGERALD is charged as follows: STATEMENT OF OFFENCE HAVING A FALSE INSTRUMENT contrary to Section 5(2) of the Forgery and Counterfeiting Act 1981. PARTICULARS OF OFFENCE JOHN CORNELIUS FITZGERALD on the 6th day of July 2000 had in his custody or under his control, without lawful authority or excuse, an instrument to which this Section applied which is, and which he knew or believed to be false. Officer of the Court”
STATEMENT OF OFFENCE PARTICULARS OF OFFENCE Officer of the Court”

PARTICULARS OF OFFENCE

[12]The submission is that the offence in subsection (2) is not an alternative to the offence in subsection (1) because the expression “without lawful authority or excuse” appears in subsection (2) but not in subsection (1). It is not suggested that any lawful authority or excuse could have been put forward by the appellant.[13]In R v Wuyts [1969] 2 QB 476 the expression “lawful authority or excuse” was considered in this Court in the context of the Forgery Act 1913, section 8, Widgery LJ presiding. It was held that, if a person retained possession of forged notes solely in order to hand them over to the police so that the previous possessors might be prosecuted, he had a lawful excuse.[14]In R v Wilson [1984] AC 242, it was held in the House of Lords, amongst other things, that it was open to the jury on a charge of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861 to bring in a verdict of not guilty as charged but guilty of occasioning actual bodily harm contrary to section 47 of the Act. Dealing generally with section 6(3), Lord Roskill stated, at p 258 B:
“Ignoring the reference to murder or treason, there seem to me to be four possibilities envisaged by the subsection. First, the allegation in the indictment expressly amounts to an allegation of another offence. Secondly, the allegation in the indictment impliedly amounts to an allegation of another offence. Thirdly, the allegation in the indictment expressly includes an allegation of another offence. Fourthly, the allegation in the indictment impliedly includes an allegation of another offence. If any one of these four requirements is fulfilled, then the accused may be found guilty of that other offence.”
[15]For the prosecution, Miss Lawrence submits that the section 5(1) offence expressly or impliedly amounts to or includes an allegation of the section 5(2) offence. Once the intention specified in section 5(1) is present, there could be no lawful authority or excuse for the custody of the document so that the words do not add a fresh ingredient but can be treated as present in subsection (1).[16]We see force in that submission and would be inclined to accept it but, on the limited submissions made to the Court, we do not propose to decide the point and have concluded that there is no need to do so. In the context of this case, the point raised is of the utmost technicality: a) the appellant was prepared to plead guilty to the section 5(2) offence. b) In relation to conviction, the appellant was not prejudiced by the late introduction of the section 5(2) offence. c) The section 5(2) charge was placed before the jury in a written form which set out the particulars, had every appearance of being a separate count and would have been treated by the jury as such.[17]The verdict can in our judgment be treated as the verdict of a jury on a separate count. There has been no unfairness to the appellant and no doubt has been cast upon the safety of the conviction. In future cases, we would however recommend, where on the evidence a conviction on either 5(1) or 5(2) may be possible, the charging of the two offences in separate counts.[18]For the reasons given the appeal against conviction is dismissed.

Sentence

[19]The appellant is 58 years old. He has convictions for obtaining on forged instruments and deception, but not for very many years. He has more recent convictions for conspiracy to import and to supply controlled drugs.[20]When sentencing the appellant

the judge stated:

“These passport offences are all too prevalent and there is ample authority now that the Courts have to do what they can to discourage people from participating or encouraging the production of or sale or dealing with passports of this kind.”
The judge stated that he would treat the appellant as someone who wished to plead guilty to the offence at the outset.[21]Miss Lethbridge submits that the judge’s indication as to plea amounted to an indication that the magistrates’ powers of sentencing were appropriate. She also submits that the judge did not sufficiently explain why a custodial sentence was necessary.[22]We see no merit in either submission. The judge’s explanation was sufficient and appropriate to the circumstances. No indication was given that a lower level of sentence was appropriate.[23]This sentence was in line with sentences approved in this Court for passport offences and was appropriate on an early guilty plea. The appellant had brought the false passport into existence and, whatever his present intention with respect to it, it could plainly be used in the future and by other persons if not himself for the purposes of crime.[24]The appeal against sentence is dismissed.