Attorney General Reference Nos 1 & 6 of 2008 [2008] EWCA Crim 677

Case No 200800144/A1-200800578/A4[2008] EWCA Crim 677
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 4th March 2008
Strand
London, WC2A 2LL
B e f o r e:
SIR IGOR JUDGE
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE FORBES
MR JUSTICE MACKAY
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO NOS 1 & 6 OF 2008
(SIMBARASHE DZIRUNI)
(JEAN CLAUD JUSTIN LABY)
Computer Aided Transcript of the Stenograph Notes of
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Miss Z Johnson appeared on behalf of the Attorney General
Mr I Goldsack appeared on behalf of the Offender
J U D G M E N T

SIR IGOR JUDGE: These two cases are unconnected. They were heard in different courts, Manchester Crown Court and Sheffield Crown Court, by different judges on different days. What they have in common is their subject matter (sentencing for the possession of false passports) and that the sentences in both have been referred to this court by Her Majesty's Solicitor-General, under section 36 of the Criminal Justice Act 1988, as unduly lenient sentences. They were listed and we heard the submissions on different dates but can now give a judgment which covers both cases.

[2]Jean Claud Justin Laby is 43 years old. He was born in October 1964. On 7th January 2008, at a preliminary hearing, he pleaded guilty to six counts of possession of false identity documents with intent, contrary to section 25(1) of the Identity Cards Act 2006. He was sentenced to 4 months' imprisonment on each count to run concurrently. No recommendation for deportation was made by His Honour Judge Mort, who was sitting in the Crown Court at Minshull Street, Manchester.[3]The facts of this conviction are briefly summarised. The offender arrived at Manchester Airport on 28th December 2007. He was travelling from South Africa via Dubai, and we think from the papers returning to Leeds. To effect his entry he presented a genuine passport, issued by the Democratic Republic of the Congo. However, his luggage was searched and within a jacket pocket, customs officers found two envelopes addressed to a "Mr John", with a sequence of numbers on the front of the envelope. Inside those two envelopes they found three forged South African passports in the names of Angal Mumba, born 14th June 1978, Balsak Mumba, born 1st February 2002 and Hasi Mumba, born 22nd March 1999. These passports had photographs in them and there were three forged South African identity documents in the same name.[4]In short, these were papers relating to a mother and two children. They were identified as having been forged because the bio data details were in the incorrect type, the stitching was green thread instead of black/white and green thread and there was no printed serial batch number in the centre pages. The identity documents were also clearly formed. That was demonstrated by vacant stitch holes, by the fact that some of the papers did not align and by the inferior standard of the background print and the lack of clarity in the visible laminate safeguards.[5]The offender was arrested on 30th December 2007 and interviewed. He claimed that while he was at Dubai airport, he had bumped into a friend who had asked him to bring the envelopes to the United Kingdom. He was asked why it appeared that his own handwriting seemed similar to the handwriting on the envelopes. He replied:
"God makes us all different, some of us have similar handwriting, whilst some of us look the same."
He said he knew nothing of the "Mr John" referred to on the envelopes.[6]At the time when he was sentenced, a Form IM3 was served on the offender. He was due to be detained in relation to immigration activities and to be deported in any event. He has no previous convictions in the United Kingdom.[7]In summary, therefore, it is reasonable to conclude that Laby was playing a part in an operation involving others to evade immigration control. He was acting as a courier of three false identities. His motivation may have been greed, but whether it was profit he intended to make there is no doubt that he was to be seen as part of what in truth is a massive and unending problem with unlawful immigration. He was in custody from the moment of his arrival in the United Kingdom, on remand, and then serving his sentence and indeed the effective part of his sentence was due to conclude at the end of the month.[8]When Judge Mort came to deal with the case he observed to counsel in the course of his mitigation, that he was aware of the decision of this Court in R v Kolawole [2005] 2 Cr App R(S) 71. He referred to the guidance offered by that decision and then he said this:
"... it does not seem to me in the public interest that anybody should be detained for any length of time, when there are so few places in prison for those serving other sentences, so my personal approach to this, ... that, for the vast majority of these cases, we should be looking at substantially lower sentences, to facilitate their removal from the country." 9. "
You will understand that at the moment in the United Kingdom there are difficulties in controlling the movements into and out of the country of those who come from abroad. If therefore somebody is found with false identity documents, then the courts always impose prison sentences to try to stop other people doing the same. 10. I am told that you are in dual detention; in other words that the Home Office intends shortly to deport, you. Normally, for an offence of this type, particularly involving documents (three separate sets of false documents) you might expect to receive a sentence of nine to 12 months' imprisonment. 11. However, it seems to me that, where you are in dual detention and the Home Office is anxious that you should be returned to the Democratic Republic of Congo at the earliest opportunity, it is in the public interest that the sentence should be much lower than that and, in these circumstances, the sentence which I impose, concurrent for each offence, is one of four months' imprisonment." There was then some further explanation of the sentence. Counsel for the Crown asked the judge whether he was making a recommendation for deportation. The judge said that he did not think that was appropriate where the defendant was in dual detention and, in any event, he was not persuaded that the presence of the offender in this country was necessary to be regarded as to the public detriment.[9]Simbarashe Dziruni is 24 years old. He was born on 15th June 1983. At a preliminary hearing at Sheffield Crown Court on 14th November 2006, he pleaded guilty to two counts, contrary to section 25(1)(a) of the Identity Cards Act 2006, and two counts contrary to section 1 of the Fraud Act 2006. He was remanded in custody for the preparation of a pre-sentence report. The case was opened by the prosecution before Judge Murphy QC on 6th December. The judge adjourned sentence so that he could study bundles of authorities (in truth sentencing decisions) provided both by the prosecution and the defence. The hearing was resumed on 11th December. On this occasion the offender was sentenced to 6 months' imprisonment suspended for 2 years. There was an accompanying order that he perform 80 hours of unpaid work. There was no recommendation for deportation.[10]The offender arrived in the UK in September 2004, entering the country via a flight from Zimbabwe. He is a native of Zimbabwe and a Zimbabwian. He qualified in that country as a carpenter or joiner. He entered the family business in Zimbabwe before he fled to the United Kingdom. Four of his brothers and sisters live here. All have either asylum status or appropriate work permits. Since his arrival he has lived with one or other members of his family. He has no criminal convictions.[11]On his arrival he immediately identified himself, giving accurate details of his identity to immigration authorities at Gatwick Airport, and he made a claim for asylum. Initially he was detained for about four days and was then housed with one of his sisters.[12]At the time of his arrival the position of Her Majesty's Government was that Zimbabwe was a sufficiently stable state for it to be appropriate for citizens and natives of that country to be returned there; his application for asylum was therefore refused. He appealed against the decision, and the appeal was dismissed on 21st March 2005. He continued to live with his sister at an address known to and registered with the immigration authorities. Before his asylum application had been refused, he received financial support from the National Asylum Support Service. But that support ended with effect from 21st March 2005. As far as he was then aware, he was not entitled to any further support from any external source. We understand that he has survived on the charity of his sister and his other relatives in the United Kingdom. It is well-known that during 2005 and 2006 there were campaigns to persuade the government that the return of failed asylum seekers from Zimbabwe should be suspended and that there should be a re-evaluation of the position in that country. Indeed the issue has been examined in the Administrative Court and then in the Court of Appeal (Civil Division) in a case known as AA [2007] EWCA Civ 149.[13]Following legal advice from his solicitors, the offender renewed his application for asylum on 18th January 2006. This renewal was put forward on the basis that, as a failed asylum seeker, he would be targeted on his return to Zimbabwe, irrespective of any other grievance which the government of that state might have with and against him.[14]Those solicitors confirmed that they had received no response from the Home Office to the fresh application, notwithstanding a number of letters seeking such a response. It is understood, though no more than that, that the success or otherwise of the application may depend on how the Home Office regard the eventual decision of the Appeal Court in the case of AA.[15]The offender believed that he had no entitlement to any form of funding or support. In fact he was entitled to £35 each week. He went to live in Sheffield in June 2007. While there he bought false documentation from a fellow Zimbabwean in the middle of June 2007. It was the use of that document, in the circumstances to which we shall come, which led to his prosecution and guilty plea.[16]On 3rd July the offender attended the offices of a company known as Best Connection Group Limited in order to apply for employment. He provided a South African passport, in his own name, together with a national insurance card as proof of his identity. He started work the following day, and he had been, until the offences came to light, in continuous employment. It was menial work, not necessarily work which would have commanded a vast number of applicants. His total earnings in that employment was fractionally over £3,000. On 15th August he went to the offices of an organisation known as Linear Recruitment. He presented the same documents, the passport and national insurance card and obtained employment on 19th August and was there in employment with that organisation until the beginning of September, earning a little under £270. So his total income from this work was £3,370. He should not, of course, have been working at all. It was a condition of his continued ability to remain in this country that he should not do so.[17]The documents he had presented were examined by an officer of the border and immigration agency. The officer noted that the passport was a stolen blank passport, with a counterfeit bio data page inserted, a counterfeit "indefinite leave to remain" stamp and counterfeit immigration officer's stamp. In fact that passport had been stole in South Africa in 2001. The appellant said he bought it for £250.[18]On 6th November he was arrested and a number of documents were recovered from him. In his interview he said he had purchased the documents. He knew they were false. He had done so in order to obtain employment. He remained in custody for 34 days and thereafter was sentenced as we have already indicated.[19]Judge Murphy was faced with, on all the evidence, a decent young man, looking to find work and to earn more than £35 weekly subsistence allowance vouchers. He felt that he was a burden to his family and he wished to lift the burden. So he bought these false documents in order to enable him to obtain work. He knew he should not be doing so; he pleaded guilty. We emphasise, he was not someone hiding or trying to avoid removal out of this country, or using the documents for that purpose. His status may appear clear enough in law but in practice it was, to put it neutrally, confused. Precisely what his legal status is does not matter for the moment, but what is clear is that the authorities in this country were not prepared to, and did not intend to do anything to procure his removal because of the situation in his home country.[20]With the assistance of counsel, Judge Murphy conducted and referred in his sentencing remarks to his analysis of all the decisions of this Court which might illuminate his sentencing decision. If we may say so, the analysis is admirable. He was concerned about a particular class of defendant. He was not dealing with a courier of documents to be used to undermine immigration control. He was certainly not dealing with an individual who might have anything to do with terrorism. This particular defendant, and there are others like him, was described by the judge as someone in a kind of limbo. That was the phrase used by Mr Goldsack, who appeared for the offender before the Crown Court. He went on:
"They cannot go home and they have to do what they can to try and stay alive."
It was submitted to the judge, and he recorded Mr Goldsack submitting, that if people in this limbo category who really cannot go home, turn into small time theft, they would be in a much better position than those who paid to have a document like this and used it to obtain work.

Judge Murphy said:

"Employers find difficulty in recruiting employees from among the indigenous population to do the sort of work that [the offender] and several of his countrymen that I have dealt with of late undertake." 25. "...the knowledge that they cannot go home and they are not being made to go home and, as such I feel that they are in an entirely different situation from people from other parts of the world who come to this country often as financial migrants, people who want to earn more money in this country but who could go home at any time. This is a different category."
He then suggested that the offender in this case, and others like him, using false identity documents in the circumstances which obtained here or in similar circumstances "would be classed as entirely decent hard working and law-abiding people."

The judge went on that he appreciated:

"...by choosing to buy the forged passport and the altered document they are choosing a criminal way, and for that in this country, they must be punished. My dilemma has been the nature of the punishment that must be imposed on these people who I say are otherwise are decent people and who are people who could well find themselves in our midst for several years and, indeed, it is not beyond the bounds of possibility that, in due course, they might well become citizens of the United Kingdom."
[23]The cases which the judge examined included R v Dhajit Singh (an old case) R v Kolawole, to which reference has already been made; Benebass; Nelson Carmona;Cakraj;Yilmaz Dogan; Adekayoaja;Juma; Chirimimanga; Aisim and Chitekeshe; Bei Bei Wang; Ahaiwe; Carneiro and Adebayo. He considered each of those authorities with care. He said:
"The issue that I have is not with the principle, that is the principle that the public interest deserves protecting, but as to the appropriate sentence necessary to protect the public interest when the facts were...a person who can stay in this country who cannot work, nor claim any substantial state benefits above barely subsistence level maintenance."
He then decided that this case fell into what he described as "a very limited class of case, very restricted" of people permitted to live here, and endure living here because they could not be sent back home to their own country.[24]So, having examined the matter, as we emphasise, with considerable care, he concluded that a prison sentence should be imposed but the sentence could be suspended. He ordered that the offender should be subject to a community service order, working for the benefit of the public for 80 hours. In passing, we were handed a note of the end of the hearing, which suggested that he has already completed his 80 hours working and that the record of his work has been excellent.[25]So those are the facts of these two rather different cases which engage the same issue, the misuse of false passports. The references before us proceed on the basis that both sentences were unduly lenient and indeed that the judges failed to apply the guidelines provided by this court in Kolawole. Kolawole was found in possession of one false Nigerian passport and another false British passport, in the name he was using in England. His photograph was mounted in both passports. The decision of the Vice-President described then relatively recent international events and referred to the need for deterrent sentences in cases where false passports were found in someone's possession.[26]Deterrent sentences are plainly required for those in possession of passports intent on acts of terrorism. They would almost certainly be dealt with under the terrorism legislation, which provides for very heavy penalties for acts preparatory to or involved in terrorism. But even if they are not intended for terrorism, but may have the effect of assisting terrorism, again, the possession of these false passports requires to be deterred by heavy sentences. More often, however, the offences in question are related to activities designed to undermine immigration control. Laby was such a case and, so that there can be no doubt about it, for such cases Kolawole continues to provide guidance for sentencing judges. However, Dziruni was not such a case, and any possible connection with schemes or arrangements to avoid immigration control could safely be excluded. In such a case Kolawole is of very limited application.[27]The problem with the decision in Laby is that it looks as though Judge Mort allowed himself to be over influenced by the fact that the offender was on his immediate way out of the country, as soon as he had finished his prison sentence. In those circumstances, given the overcrowded prison problem, which is perfectly well-known, the judge approached the case on the basis that that the offender might just as well get going out of the country rather than inflict the cost of keeping him here on the tax paying public of the United Kingdom.[28]This approach has a certain attractive robustness. On analysis, however, it overlooks the need to make it clear that those who are caught entering the country, in possession of false passports, or in possession of false passports which will be used to facilitate the unlawful entry to this country, or their continued unlawful presence by others, merit the element of deterrence in sentences referred to in Kolawole. In making that observation, I am not referring to those who are or may be genuine asylum seekers to whom different statutory provisions apply. In our judgment, it is not a sufficient deterrence if the penalty is a very short period of incarceration followed by a quick return journey home. Accordingly, we have concluded that the sentence on Laby was unduly lenient. The penal element of the sentence on him was over reduced and significantly diminished beyond the appropriate level. It is not a sufficient ground for departing from the guidance offered by Kolawole, and the pattern of sentencing decisions of the court on this topic, that the offender will soon be on his way out of the this country.[29]In our judgment, a sentence of less than 12 months on Laby was inappropriate. The actual sentence of 4 months was unduly lenient. It will be quashed and a sentence of 12 months' imprisonment will replace it.[30]The judge made no recommendation for deportation. He knew that the offender will in any event be deported when the custodial element of his sentence has been completed. That was a decision within the judge's discretion, and we do not propose to interfere with it.[31]Dziruni is a quite different case. The decision of Judge Murphy is not, in our judgment, open to the slightest criticism. The facts which he spelled out with such care speak for themselves. Suspending a sentence and requiring the offender to do some work for the country will sufficiently punish him and offer practical value to the community.[32]We understand that, in light of the authorities and the way in which a number of courts (we are told Manchester and Sheffield) have been approaching these issues, this application was justifiably made. We must, however, record that the sentence of Judge Murphy was not a lenient sentence at all. It was therefore certainly not an unduly lenient sentence. It was a merciful sentence, in a case where the exercise of the judicial quality of mercy was entirely appropriate. But for the apparent lack of clarity surrounding this issue, this reference would never have been made. Accordingly, we shall refuse the Solicitor-General leave in this case. We shall simply record that an order for deportation would have been absurd given the current policy relating to those whose home country is Zimbabwe.[33]That application will be refused.

Cited in 5 later judgments