Bogoslov,R. v [2008] EWCA Crim 676

Case No 200800059/A6[2008] EWCA Crim 676
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 7th March 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE BLAKE
MR JUSTICE PLENDER
Between
R E G I N ACrownv
Between
GHEORGE BOGOSLOV
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 Dogra appeared for Appellant
J U D G M E N T
[1]MR JUSTICE BLAKE: On 25th October 2007 in the Crown Court at Wood Green, this appellant pleaded guilty to four counts of possession of a false identity document, pursuant to section 25(5) of the Identity Cards Act 2006. On 7th December 2007 he was sentenced by Mr Recorder Sheridan to 2 years' imprisonment on each of those counts to run concurrently and was also recommended for deportation. His application for permission to appeal against sentence on the grounds that the sentence was manifestly excessive was referred to the Full Court by the Registrar. We grant permission to appeal.[2]The facts of this matter are that the appellant is a Romanian national who has been living in the United Kingdom lawfully for a number of years with his Romanian partner also lawfully resident here. He is a businessman who fell out with his business partner. A conflict arose between them that resulted in public order charges being brought. Those charges were disputed and, in the light of the sentences passed for the passport offences, the prosecution offered no evidence on them rather than remit them to the Magistrates' Court for summary trial.[3]Following the argument between the business partners, this appellant's business partner discovered a bag in the appellant's possession containing a number of counterfeit European Union passports in different names, each with the appellant's photograph in it, as well as correspondence Visa cards and other material in other names. The partner reported the partner to the police. The appellant was arrested and subsequently charged with possession of four European Union passports three Italian and one Danish all which were found to be counterfeit. The appellant gave a "no comment" interview on arrest. He subsequently advanced an explanation for his possession of the passports, namely that he had been given them as a security for a business debt but the Recorder rejected and was entitled to reject that explanation. The position, thus, was that the appellant was to be sentenced on his guilty plea, tendered at the first opportunity for unexplained possession of these false passports.[4]Possession of false passports is a serious offence that will almost certainly lead to a sentence of immediate imprisonment. It should however be noted that the appellant was a Romanian citizen, who was in possession of his own valid Romanian passport. He was at the time of these offences a citizen of the European Union, Romania having acceded to the union on 1st January 2007. Even before that he would have had residency rights as a businessman by reason of the Europe Association Agreements between the EU and Romania.[5]It would appear therefore he had no need of any false passport to enter, remain, work, or secure any other benefits in this country. Further, he was charged with the simple offence of possession for which the maximum sentence was 2 years rather than the aggravated offence of possession with intention to use the documents for a particular purpose, for which the maximum sentence was 10 years. Although there was more than one passport in his possession the greater number could properly be reflected in the length of the sentence to be imposed for the single occasion of possession of these materials.[6]It appears the matter had previously come before the Recorder on 9th November, when the prosecution facts were outlined, as indicated above, and it seems that at the request of the court the matter was adjourned Form IMM3 to be served, and further enquiries to be made as to the appellant's identity. The result of those enquiries, as confirmed to this Court today, were that the immigration authorities had no reason to doubt the identity of the appellant, the authenticity of his passport and the basis of his lawful residence here. Moreover, there were no traces of any of the names used in the passports or other correspondence that might have alerted the authorities to broader security or criminal concerns.[7]However, when the matter came before the Recorder for sentencing, he made no secret of the view that he took. First, he roundly criticised the Crown Prosecution Service for merely charging the simple offence of possession rather than the aggravated offence. He said:
"The Crown Prosecution Service needs a severe lesson in how to charge properly in cases like this. A two year maximum when somebody has false passports... It is not crime in this country in terms of shoplifting or something like that, you do not need a passport. This is for international criminal travel. That is the only reason why you need it, he had a genuine passport and that is what I would like to be assisted on..."
Secondly, as indicated, he took the view, unassisted by any submissions of prosecuting counsel in opening the case on this or the previous occasion, that the reason why this appellant had these passports was that it would allow him to cross borders. He asked himself the question:
"Am I entitled to have regard to the fact that this country at the moment is under a state of threat from international crime and terrorism as part of the sentencing exercise?"
Thirdly, he indicated that the level of sentence that he was minded to impose was to be found by reference to the judgment of this Court in the case of R v Kolawole [2005] 2 Cr App R(S) 14, where use or possession with intent to use a forged passport, for a person of good character, there was an indication of a sentencing range of 12 to 18 months should follow. That was under the precursor of the legislation with which this Court is now concerned. Fourth, the Recorder indicated he was proposing to pass consecutive sentences to compensate for the restrictions imposed by the maximum sentence. Fifth, he indicated that he was considering making a recommendation for deportation and professed some expertise in the topic as he said that he had been prosecuting counsel in the case of Carmona, to which further reference will be made.[8]All of this was before mitigation was advanced or indeed any further submissions had been made by the Crown Prosecution Service on 7th December 2007. The Recorder seems to have very much descended into the arena of formulating the case against the appellant rather than impartially adjudicating on the case that was in fact presented against him.[9]Mitigation remarks then followed and the Recorder appears to have accepted that on the authority of Kolawole, to which reference has already been made, that it was wrong in principle to pass consecutive sentences for possession of four passports found on the same occasion. He said that case made it perfectly clear that it was bad sentencing practice to impose consecutive sentences in relation to two different passports. We agree that in this sort of case the number of documents can be reflected in the level of seriousness and the higher appropriate term within the statutory maximum. However, the Recorder did not give effect to this recognition in the sentence he proceeded to pass. He said:
"In view of your pleas and everything, as I say, most ably said by your counsel, in including your previous good character, and I do approach it on the basis of previous good character, I am going to impose in this case sentences of two years, which is the maximum that can impose on any one count, but to reflect credit for your plea I am not passing consecutive sentences. They will be all concurrent, a sentence of two years on each concurrent."
[10]If it was wrong in principle to impose consecutive sentences, the Recorder was wrong in seeking to give credit for an early plea by not imposing consecutive sentences. In our judgment, having sentenced this appellant to the maximum sentence of 2 years' imprisonment, he failed to give any credit for his plea of guilty. He was wrong to do so, even if he was entitled to make some discount from the full one-third by the reason of the strength of the evidence. Further, he was misled, by his own observations, on the underlying criminality that he found in this case, with respect to the correct starting point. As has been submitted before us today by Mr Dogra, and was abundantly clear from the then current edition of Archbold at paragraph 22 - 45A and the authority of De Oliveira [2006] 2 Cr App R(S) 115, it is important to distinguish between the simple offence of possession and the aggravated offence of possession with intent, and using one authority as a sentence guideline for the other, leads to confusion.[11]In De Oliveira itself the Court concluded that simple possession of a single forged passport, by someone who was not an EU national, should lead to a sentence of 8 months' imprisonment upon his guilty plea. In our judgment, it was not open to the Recorder to sentence this appellant for an offence of which he had not been charged, and had maximum penalty of five times higher than the offence charged. Further, he was not entitled to sentence on a version of facts which was clearly not substantiated by the prosecution case. But we have no doubt this was what was done in this case. He said this:
"You had four false passports plus your own legitimate one so that you can cross borders and that is for one reason only, you do not need four passports, three Italian and a Danish passport to enable you to live and work in this country. You do not need them even to commit crime in this country. You have them because you intend to cross borders with international travel. You can only do that with criminal intent, because if it were not with that, you would not need or use the passports when you have a legitimate one and that is the background to this case and it is those considerations that I must have in mind. This country at the moment is under threat from those who seek criminally to cross borders for their own criminal reasons and not least the usurpation and the breach of the border controls is a greater burden on the tax payer and a threat to public security. In particular, if the courts do not hand down draconian sentences then the terrorists see green light and carry on as before. In this case in mitigation what can be properly be advanced... My original approach was to pass consecutive sentences, because two passports are worse than one, four smack of serious criminal intent. And it is certainly not a question of you staying here as a cleaner... So the background, therefore, is this, you had them for a criminal intent of an international type."
[12]It is unclear precisely where the Recorder drew that information from, or what precisely he was suggesting was the use to which this appellant was going to make of these passports. Certainly there was no evidence that we can discern that would have entitled him to reach those conclusions. In the circumstances, recognising that the number of passports made this a serious offence of possession, we conclude on a fight the appropriate term would be in the region of 18 months but, on a plea, the appropriate sentence will be 12 months' imprisonment. We therefore quash the sentences of 2 years imposed and substitute for them, on each count concurrent, a sentence of 12 months' imprisonment.[13]As to the recommendation for deportation the Recorder said this:
"It is, not mincing my words, linked to international criminal travel, which means international crime. Put bluntly, we have enough criminals of our own in this country that we are stuck with, but we do not have to tolerate and put up with those who come here from other countries. Whether you came here innocently and honestly in the first place is one thing, but you have now chosen to take a course that frankly is unacceptable."
Later on he said:
"You have human rights, of course you do, and I must have regard to them, but I must also have regard to the human rights of everybody else in this country, the honest tax payer, the honest workers in this country who are entitled to be protected, who are entitled to have the border secure from international criminals. I do not think you are a terrorist, I do not have to resolve that and I am approaching it on the basis you are not. But you are linked with international crime. You have got to be to have those passports for criminal international travel.... But what I am more than satisfied, I am overwhelmingly convinced that your continued presence in this country is a detriment to the public good and in those circumstances I am making a recommendation to the Home Secretary that you be deported and be deported as soon as you have completed your sentence and not be permitted to return."
He said was grateful to the officer who conducted the enquiries that the Recorder had asked for but he said that the result of those enquiries did not save the appellant from the recommendation he was minded to impose. He said at the end of his sentencing remarks:
"If the Home Secretary upholds my recommendation... and the position then is that the Home Secretary having deported you should ensure that your identity, face and fingerprints and the like are well known so that you are not permitted back in this country. You have no, in my view, no public good to serve by remaining in this country, nor returning to it."
As was apparent by the time of the sentence, the appellant was a citizen of the European Union and very different principles apply to such citizens than to those who have no right to enter or remain here. The rights of entry and residence within the Member States of the European Union are very important rights which can only be derogated from in strictly confined circumstances, according to the principles of community law reflected in both the legislation and the case law of the European Court of Justice.[14]Those principles are now set out in Directive 2004 38/EC of 29th April 2004 which came into force on 30th April 2006. Article 27 says in the first paragraph:
"Subject to the provisions of this Chapter Member States may restrict the freedom of movement and residence of Union citizens and their family members irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. (2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted."
Article 28, at paragraph 1 provides as follows:
"Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural interrogation into the host Member State and the extent of his/her links with the country of origin."
There are even greater rights for those who have rights to remain permanently in the Member State, usually granted after 5 years residence, and even more extensive rights for those who have had 10 years' residence. It is not necessary to recite those parts of the directive in this case.[15]This has also been the clear thrust of the extensive case law from the European Court of Justice. The principles were summarised in the case of Omer Nazli and Stad Nurnberg C340/97, [2000] ECR 1, 957. This was a case of Turkish national, who had treaty rights under the association agreement who had committed drug offences. The court said at paragraph 57:
"In the context of Community law and, in particular, of Article 48(3) of the Treaty, it has been consistently held that the concept of public policy presupposes, in addition to the disturbance of the social order which any infringement of the law involves, the existence of a genuine and sufficient serious threat to one of the fundamental interests of society... 58. While a Member State may consider that the use of drugs constitutes a danger for society such as to justify, in order to maintain public order, special measures against aliens who contravene its laws on drugs, the public policy exception, like all derogates from a fundamental principle of the Treaty, must nevertheless be interpreted restrictively, so that the existence of a criminal conviction can justify expulsion only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy... 59. The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventive grounds, that is say an expulsion ordered for the purpose of deterring other aliens... especially where that measure has automatically followed a criminal conviction..."
[16]As this court has confirmed in the case of Carmona [2006] 2 Cr App R(S) 662, the criminal courts cannot make a recommendation for deportation in respect of an EU national, which would conflict with those criteria of community law. Carmona itself as an authority was concerned with the relevance of family life of aliens rather then the EU law concept of detriment and proportionality that are the applicable questions to be determined here. Carmona, it should be noted, also recognised the imminent coming into force of the Directive, which has been noted earlier in this judgment and thus binds the Court.[17]We have no doubt that in his remarks on recommendation for deportation the Recorder was expressly using deportation as a deterrent to others, based upon his understanding of the supposed international criminal activity akin to terrorism served in this case. None of this was appropriate on the facts of this case. There was no personal conduct identified in the remarks we make, which it was open to him to find constituted a present danger to the security of this country. So this part of the sentence must also be set aside.[18]Of course it is open to the Secretary of State to institute deportation proceedings against him, for which there will be a full right of appeal in the Asylum and Immigration Tribunal, if he has credible information on which he can base a claim that the appellant on release will represent a danger to this country.[19]This appeal will therefore allowed. The sentence will be quashed. The sentence of 12 months' imprisonment will be substituted. One hundred and two days spent on remand will count towards the sentence, pursuant to section 240 of the Criminal Justice Act 2003.

LORD JUSTICE HOOPER: You had an application?

[21]MR DOGRA: Can I make an application for a defendant's costs order?

LORD JUSTICE HOOPER: Are you not here under the legal aid order.

[23]MR DOGRA: I am but the advice given to me and advice grounds settled prior to that order being granted was funded privately by a third party.

LORD JUSTICE HOOPER: Yes, agreed, yes.