Jamalov, R. v [2010] EWCA Crim 309

Case No 200906810 B4[2010] EWCA Crim 309
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 9 February 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE OPENSHAW
Venue THE RECORDER OF CARDIFF - HHJ NICHOLAS COOKE QC
(SITTING AS A JUDGE OF THE CACD)
Between
R E G I N ACrownv
Between
ELMAR JAMALOV
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR I KROLICK appeared for AppellantMISS M WELLFARE appeared for Crown
J U D G M E N T

LORD JUSTICE HOOPER:

[1]On 8 December 2009 at the Inner London Crown Court, before HHJ Chapple QC, the appellant pleaded guilty to an offence against section 25(1)(a) of the Identity Cards Act 2006, and to using a vehicle without insurance, and to breach of bail (failure to appear). For the first offence he was sentenced to 6 months' imprisonment; for the second offence to a fine of £200, or in default 7 days' imprisonment, the full payment to made by 1 July 2010. That amount was made up of a fine of £185 and a £15 "victim surcharge"; for the breach of the bail he was sentenced to 1 months' imprisonment consecutive. There is no appeal in respect of the second and third offences. It is agreed that the sentence should have referred to detention in a Young Offenders' Institution and not imprisonment.[2]Before this court, Mr Krolick, who did not appear for the appellant at trial, submits that the conviction is unsafe in that, notwithstanding the plea of guilty, the offence to which he pleaded guilty was not in fact committed. To understand that argument we need to look with some care at the provisions of the Identity Cards Act 2006. Before we do that we mention the facts very briefly.[3]On 20 December of 2008, the police were called to the scene of a collision on Camberwell Road between the appellant, driving a rented BMW car, and a moped. According to the police officer who attended the scene, "I asked him if he had any identification and he took out a wallet" and produced a driving licence. That driving licence purports to be a driving licence issued in the Czech Republic, but it was in the name of the appellant, Elmar Jamalov. Suspecting the document to be forged, the officer arrested him.[4]The appellant is 21 years old. He was born in Azerbaijan and has no previous convictions.[5]The possession of the false identity document was charged, as we have said, as an offence contrary to section 25(1)(a) of the Identity Cards Act 2006. The particulars of the offence read as follows: "Elmar Jamalov, on the 20th day of December 2008, had in his possession, or under his control, an identification document, namely a Czech driving licence, that was false and that he knew or believed to be false, with the intention of using it for establishing registrable facts about himself".[6]Section 25(1)(a) provides that:
"It is an offence for a person with the requisite intention to have in his possession or under his control an identity document that is false and that he knows or believes to be false."
The words "identity document" are defined in section 26 and include a document that is or purports to be a driving licence issued by or on behalf of the authorities of a country or territory outside the United Kingdom. To understand the word "false", one turns to section 25(8), which provides, in part, that:
"An identity document is false only if it is false within the meaning of part 1 of the Forgery and Counterfeiting Act 1981"
There is no doubt that the identity document produced by appellant was "false".[7]Thus, the appellant undoubtedly had in his possession or under his control an identity document that was false and that he knew or believed to be false. The issue, so Mr Krolick submits, is whether or not he had the requisite intention to which section 25(1) refers. The requisite intention for the purposes of subsection (1) of section 25 is defined in subsection (2). It includes:
"The intention of using the document for establishing registrable facts about himself"
. When a person has in his possession or under his control an identity document that is false and that he knows or believes to be false, then he is only guilty of the offence if he has "the intention of using the document for establishing registrable facts about himself".[8]To find out what a registrable fact is, one turns to subsection (5) of section 1 of the Act. In that subsection there are a number of things which are said to be registrable facts. By virtue of subsection (5)(a), one of them is "his identity". That itself is further defined in subsection (7) of section 1, which states that references to an individual's identity are references to:
"a) his full name; b) other names by which he is or has previously been known; c) his gender; d) his date and place of birth, and if he has died the date of his death; and e) external characteristics of his that are capable of being used for identifying him."
[9]We turn back to the driving licence produced by the appellant. The driving licence gave the appellant's proper name, gave a date of birth which was 14/12/1986, when it should have been 1988; no more, it would appear, than an unintentional error. It also gave what appears to be a place of birth, but there was no evidence before the court as to whether or not he had been born in that place. It is probably safe to assume that he had not been.[10]Miss Wellfare for the respondent, in her helpful skeleton argument, relied on a number of different registrable facts. She said, amongst other things, that one of the registrable facts was the residential status previously held by the appellant. We have some doubt as to whether that is relevant in this case.[11]In our view, this case is, at the end of the day, very simple. The definition of a registrable fact, as we have said, includes a person's full name. We then have to ask ourselves whether or not the appellant had the necessary intention of using the false driving licence "for establishing his identity", namely, his full name.[12]Mr Krolick argued that producing a false document with your correct name did not fall within section 25(1) of the Act. In our view, it clearly does. When asked whether he had any identification, he produced the false driving licence. By his plea of guilty, he was admitting his intention to use the false driving licence for the purposes of establishing who he was.[13]Before leaving the appeal against conviction, we mention that there are other offences which would seem to cover this kind of conduct, see section 173 of the Road Traffic Act and section 3 of the Forgery and Counterfeiting Act 1981.[14]We wish to make it clear that the prosecution have to show the intention of the person using the document. It is at least open to doubt (and we say no more than that) whether or not his intention was to establish either his date or place of birth.[15]For these reasons, we dismiss the appeal against conviction and turn now to the appeal against sentence.[16]We start with the sentencing remarks. The judge said this: "I look then at the reason why you have a false driving licence. I am sure the reason is that you were not properly permitted to drive in a motor vehicle in this country, but you did so, and if you were stopped you could produce this false driving licence in the hope of deceiving the police".[17]Although Mr Krolick relied upon that passage when submitting that the appeal against conviction should succeed, it is of more importance when considering the appeal against sentence. Mr Krolick put before us the leading case on false identification documents, Ovieriakhi [2009] EWCA Crim 452. We are particularly grateful to Miss Wellfare, who brought to our attention the case of Zeraj [2009] EWCA Crim 744.[18]Approaching this case as being the case of a man who, as the judge said, was in possession of the licence so that he could pretend that he was lawfully entitled to drive, the proper sentence seems to us to be one of 4 months' imprisonment. This kind of case would, one expect, normally be dealt with in the Magistrates' Court.[19]For those reasons, we reduce the sentence to one of 4 months' detention on the section 25(1)(a) offence. We leave the sentence for no insurance as it stands, and the sentence for failing to comply with his bail requirements remains at 1 month consecutive. That makes a total of 5 months in all.[20]MR KROLICK: My Lord, can I raise three matters with you. The first is, it does appear in section 5 of the Forgery and Counterfeiting Act of 1981.

LORD JUSTICE HOOPER: What are you saying, sorry?

[22]MR KROLICK: Your Lordship expressed some doubt about whether an alternative offence came within the section within the 1981 Forgery and Counterfeiting Act.

LORD JUSTICE HOOPER: Did I express any doubt about that? I did not mean to express any doubt, I thought that was the clearest.

[24]MR KROLICK: Well it was, I thought your Lordship said --

LORD JUSTICE HOOPER: Well, if there is any doubt in the judgment I will make sure it is eliminated.

[26]MR KROLICK: My Lord, as far as Hepatitis is concerned, the situation is, although it was, when I was first instructed, a relevant factor, my Lord, I refer to it at the end of my skeleton argument, in fact the Hepatitis infection has all been cleared, he has had blood tests. I indicated --

LORD JUSTICE HOOPER: I am sorry for missing that, I will remove that reference.

[28]MR KROLICK: Could your Lordship kindly do so.

LORD JUSTICE HOOPER: Yes. Next?

[30]MR KROLICK: There is a note from the lawyer from the Criminal Appeal Office that the sentence should not be a sentence of imprisonment because it is an unlawful sentence.

LORD JUSTICE HOOPER: It was his age, I do recall it now, it had been mentioned. Quite right.

[32]MR KROLICK: I am sorry --

LORD JUSTICE HOOPER: We substitute for the sentence of 6 months' imprisonment, a sentence of 4 months' detention in a Young Offenders Institution.

[34]MR JUSTICE OPENSHAW: I think that whoever compiled the records may have been misled by the false date on the driving licence.[35]MR KROLICK: It could well be, yes. My Lord, that is all I would wish to raise.

MR JUSTICE OPENSHAW: It shows how important it is not to carry false documents.

[37]MR KROLICK: That is unless you wish to appear to be younger than you are, my Lord.