Rostamkhany, R v [2007] EWCA Crim 3426

Case No 2007/5133/A6[2007] EWCA Crim 3426
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 19 December 2007
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE LATHAM)
MR JUSTICE COOKE
MR JUSTICE CRANSTON
Between
R E G I N ACrownv
Between
KASRA ROSTAMKHANY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Stage appeared for AppellantMr R Brown appeared for Crown
J U D G M E N T
[1]MR JUSTICE CRANSTON: In this case the applicant pleaded guilty to one count of possession or control of a false document with the intention of using it to establish a registrable fact. On 8th August 2007 he was sentenced by His Honour Judge Anthony at Lewes Crown Court to eight months' imprisonment. The offence is an offence under section 25(1) of the Identity Cards Act 2006. The Registrar has referred the case to this court today.[2]The facts in outline are these. Early one morning in April 2007 the applicant arrived at Gatwick Airport on a flight from Cyprus. He handed over a false Italian passport in the name of someone else. The passport was subsequently found to have been a stolen blank document. On the arrival of an interpreter he gave his name as Kasra Rostamkhany and his date of birth as 19th July 1986. He said he was an Iranian national. At this point he claimed asylum. When interviewed, he said that he had been in fear of his life. An uncle had paid an agent to get him to Europe and to claim asylum. He left Iran on 12th April, travelled by horse to Turkey where he stayed three or four days, before flying to Cyprus. The applicant said he stayed in Cyprus for eight to nine days. The agent then put him on a flight to the United Kingdom and gave him this false Italian passport. He used the passport to check in knowing it was false. He said on his account that he knew no one in the United Kingdom, but that his intention had been to find an immigration officer and to claim asylum on arrival. We are informed today that he has now been given leave to remain.[3]The basis of his plea, which is somewhat elaborate, is that he had pleaded guilty only because of the difference between the Status of Refugees Convention and United Kingdom domestic law. He would not be guilty had the United Kingdom properly honoured its international treaty obligations in its domestic legislation. The basis of plea was also that the applicant, a man of previous good character, had suffered detriment by reason of the failure of the United Kingdom to adhere to its Convention obligations.[4]In his sentencing remarks the learned

judge said this:

"... people who use false passports must expect prison sentences. In these days when there is so much concern about identity theft, and security is a major concern, particularly at airports and on aircraft, the use of a false passport is a very serious matter"
. However, the learned judge also said that the material placed before the court suggested that the degree to which the applicant should be held at fault was less than in many cases. If he had simply claimed asylum and not produced a passport it would be less serious still but, said the learned judge, the applicant had attempted at first to pass himself off as holding a genuine Italian passport. The sentence imposed was shorter than would normally be the case. His detention for immigration purposes was in effect dual detention. Whatever sentence was imposed he would remain in custody until his asylum application was processed. There was no recommendation for deportation.[5]The offence, as we have said, is under the Identity Cards Act of 2006. Under section 25 of that Act it is an offence for a person with the requisite intention to have in his possession or under his control inter alia an identity document that is false and that he knows or believes to be false. Subsection (2) of that section says that the requisite intention for the purposes of subsection (1) includes the intention of using the document for establishing registrable facts about himself. In this case, of course, the registrable fact was his identity. The offence is punishable by imprisonment for a term not exceeding 10 years. Section 30 of the Act importantly adds the possession of false documents offence, that is section 25, to section 31(3) of the Immigration and Asylum Act 1999, which gives a specific defence for refugees with false documents. Under section 31 of that Act it is a defence for a refugee charged with an offence to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened, he presents himself without delay, shows good cause for his illegal entry and makes a claim for asylum as soon as reasonably practical after his arrival in the United Kingdom. Importantly subsection (2) of that section says that if in coming from a country where his life or freedom was threatened the refugee stops in another country, the defence only applies if he shows that he could not reasonably have expected to be given protection in that other country. That in brief outline is United Kingdom law.[6]The applicant says that in this respect the United Kingdom is in breach of its obligations under Article 31 of the Status of Refugees Convention. Broadly stated, that Article provides that contracting states such as the United Kingdom shall not impose penalties on account of illegal entry or presence in respect of refugees who come directly from the territory where their life or freedom is threatened, provided they present themselves without delay and show good cause for their illegal entry or presence. In R (on the application of Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin) it was said that in an attempt to prevent forum shopping section 31 of the 1999 Act is narrower in scope than Article 31 of the Convention. However, the court in that case held that the language of section 31 is the law which the courts must apply and there is no room to apply Article 31. But if the courts are bound to apply the provisions of United kingdom legislation, Mr Stage on behalf of the applicant says that they must still have regard to the Convention in sentencing those convicted of offences under the Act. One limb of his argument is that there is a legitimate expectation amongst those such as the applicant about the application by the United Kingdom as a contracting state of the Convention. In our view that cannot be accepted either in the light of Pepushi itself, see paragraph 37, or the reality that there can be no legitimate expectation that the United Kingdom authorities will not give full force to the provisions of United Kingdom law as laid down by Parliament.[7]Consequently, the matter becomes simply one of sentencing in this type of case. The principles are four-fold. First, custody should only be imposed unless the court is of the opinion that the offence is so serious that neither a fine or community sentence can be justified. Secondly, using false identity documents with the requisite intention in an attempt to gain entry into the United Kingdom will in normal circumstances invariably be serious enough to justify a custodial sentence: R v Kolawole (2005) 2 Cr.App.R (S) 14. Thirdly, that genuine refugees may arrive in the United Kingdom using false documents, so a responsible compromise has to be maintained between control of entry and arrangements affecting the stark realities facing them: see R v Mohammed (Farik Said) [2001] EWCA Crim 2332, paragraph 21. Fourthly, that the sentencing court will, as best it can, reflect the degree of a defendant's criminality in the sentence imposed.[8]That last principle, the degree of the defendant's criminality, was the point at issue in R v Wang [2005] 2 Cr.App.R (S) 79. It is important in considering that case, however, to recognise that that was a case under section 2 of the Asylum and Immigration (Treatment of Claimants Etc) Act 2004, which in essence deals with entering the United Kingdom without a passport. In relation to that offence, this court said that the defendant in that case had to be sentenced on the basis that she had possessed a passport but only for a very short period and not on the ground that she had destroyed immigration documents. The court also took into account the fact that she had pleaded guilty and her personal mitigation, such as her youth, and that she had an extant asylum claim.[9]In this case the applicant says that there are a number of strong points in terms of personal mitigation. First, it is said that this was a case de minimus - less serious than in many other cases. The applicant says that he only presented the false passport when asked. He did not speak English and did not know what else to do and only wanted to collect his luggage before embarking on the claim for asylum. Secondly, it is said that ultimately there was no dispute about identity because there were many other documents which verified his true identity. Thirdly, it is said that he is a young man of good character in an unfamiliar country and away from his family and the fact that he came to the United Kingdom via Cyprus rather than Turkey makes the offence no more morally reprehensible.[10]In our view the learned judge took all these matters into account. As he said, the applicant had not simply claimed asylum but had attempted to pass himself off as holding a genuine Italian passport. Taking into account all his personal mitigation, the learned judge was able to pass a sentence which, as he said, was less than that which ordinarily would apply in this sort of case. In our view his approach cannot be faulted and on that basis we dismiss the appeal.[11]MR BROWN: My Lord, I am instructed to apply for costs against the appellant.[12]MR STAGE: My Lord the situation is that he has no means in this country at all. He is living really on charity at the moment.[13]THE VICE PRESIDENT: We make no order in relation to costs.