Unah, R. v [2011] EWCA Crim 1837

[2011] EWCA Crim 1837Case No 2011/2919/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 12 July 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE WYN WILLIAMS
SIR DAVID CLARKE
Between
R E G I N ACrownv
Between
FLORA UNAH
Computer Aided Transcript of the Stenograph Notes ofInternational LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss B Dunbar appeared for AppellantMr S Rupashina appeared for Crown
Judgment

LORD JUSTICE ELIAS:

This

[1]case has been referred to the full court by the Registrar. It involves a short point of statutory construction concerning section 25(5) of the Identity Cards Act 2006. This is as follows:
"(5) It is an offence for a person to have in his possession or under his control, without reasonable excuse— (a)an identity document that is false; (b)an identity document that was improperly obtained; (c)an identity document that relates to someone else... "
The appellant pleaded guilty to this offence in the following circumstances. She is a Nigerian with indefinite leave to remain in the United Kingdom. She was found to have in her possession a false passport. This came to light when she attended a job centre in order to apply for a National Insurance number. She produced a valid current passport and an expired passport which was in fact false. The biographical section of the passport, which included the photograph, was found to be counterfeit. She claimed that she had no knowledge of that. She said that she had asked a friend who travelled regularly between the United Kingdom and Nigeria to obtain the passport for her, and it was her understanding that it was genuine. She contended that this belief constituted a reasonable excuse for not having a passport in her possession within the meaning of subsection (5).[2]The judge considered this issue as a preliminary matter and ruled against her. The judge pointed out that section 25(1) in terms provides a defence of the kind on which she was relying, but that that was not found in section 25(5). Section 25(1) is as follows:
"It is an offence for a person with the requisite intention to have in his possession or under his control— (a)an identity document that is false and that he knows or believes to be false; (b)an identity document that was improperly obtained and that he knows or believes to have been improperly obtained; or (c)an identity document that relates to someone else."
The judge concluded that Parliament's intention in subsection (5) must have been to create what he termed an offence of strict liability. It would in his view ignore the difference between the two sections if her lack of knowledge or belief that the passport was false could constitute a reasonable excuse. The concept of reasonable excuse would, in the judge's view, apply to cases where a defendant for example found a false passport and had it in his possession with the intention of handing it in to the police. Counsel had not been able to find any authority which justified interpreting the term "without reasonable excuse" so as to include the state of mind of a defendant as to the quality of the article possessed or its nature. The defendant knew this was a passport. The fact that she may have mistakenly assumed that it was genuine was irrelevant to liability, although it would be relevant at the sentencing stage.[3]Once this ruling had been made the appellant had no defence. Accordingly she changed her plea to guilty and was sentenced to a community sentence with a requirement to carry out 100 hours of unpaid work. She now appeals against her conviction on the single ground that the judge wrongly construed the subsection.[4]We agree with the judge that the absence of words in subsection (5), such as are found in subsection (1), indicates that the fact that a defendant does not know or believe the document to be false is not of itself a defence. There is no justification for implying those words into subsection (5). We agree, therefore, that it must follow that the mere fact that a defendant does not know or believe that the document is false cannot of itself and without more amount to a reasonable excuse. To the extent that the appellant was contending that it could, we would reject that submission.[5]It does not, however, follow, as the prosecution contend, that lack of knowledge or belief may not be relevant at all to a defence of reasonable excuse. In our view it may be a relevant factor for a jury to consider when determining whether or not the defendant has reasonable excuse for possessing the document. A belief that a document is genuine might, for example, explain why it has not been thrown away or handed in to the police. It is capable of providing an explanation for the possession of the document. Of course, there may be circumstances where the explanation as to why the defendant has the document in his or her possession is simply not believed by the jury, or it may be that the jury accepts the explanation advanced but does not consider that it is reasonable in all the circumstances. But the concept of reasonable excuse is potentially a broad one, and we do not see why the circumstances in which the document was obtained, and which may cause the defendant to believe that it was genuine, should be ignored when considering whether an excuse for possessing it is reasonable or not.[6]This defence of reasonable excuse is found in various statutory contexts and it has been said on a number of occasions that it is par excellence a matter for the jury whether or not a reasonable excuse has been established. A judge ought to withdraw that issue from the jury only if no reasonable jury could conclude on the facts alleged that the explanation was capable of constituting a reasonable excuse - see for a recent statement of that principle the judgment of the Vice President, Hughes LJ, in R v Y(A) [2010] EWCA Crim. 762, [2010] 2 Cr.App.R 15 at para 25. Nothing in the statute suggests that honest belief in the genuineness of the document is a factor which the jury is obliged to ignore.[7]The courts will not readily infer that a person should be guilty of a criminal offence in circumstances where there is no criminal intent or recklessness, yet that is the consequence if the prosecution submission is correct. It could lead to surprising results, as Wyn Williams J pointed out in argument. A defendant might ask a friend to pick up his passport. Unbeknown to the defendant the friend is in fact dishonest and substitutes a false passport for the real one. It would, we think, be surprising if this were to give rise to a criminal offence yet, on the prosecution case it would do so, with a potential maximum sentence of two years' imprisonment. That is so even if the jury believed that the defendant had acted reasonably and honestly at all times.[8]It is only with caution that one should seek to draw analogies with other statutory contexts where the concept of reasonable excuse is employed. However, we think the case of R v Y (to which we have made reference) is of some assistance. In that case a defendant was charged with offences of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58(1) of the Terrorism Act 2000. The question was whether he had adduced sufficient evidence to raise the issue of reasonable excuse, which was a defence afforded by section 58(3). Section 57, which creates a related offence of possessing an article giving rise to a reasonable suspicion that the possession was for the purpose connected with the commission, preparation or instigation of an act of terrorism, provides in terms a defence for a defendant who can show that his possession was for an innocent purpose.[9]In R v G [2010] 1 AC page 43, the House of Lords held that the fact that there was possession for an innocent purpose could not of itself amount to a reasonable excuse within the meaning of section 58(3). That would be to treat the defence in section 57 as though it applied to section 58 also. In R v Y it was contended by the prosecution that in the light of that decision the defendant could not seek to rely upon the fact that he possessed material for an innocent purpose in the context of seeking to establish a reasonable excuse under section 58(3). It is in our view akin to the prosecution argument advanced here. The court rejected that submission. The Vice President said this at paragraph 17, after citing a passage from the judgment of Lord Rodger in R v G:
"From this the Crown proceeds to argue that it cannot be the law that the purpose of the defendant, being absent from the ingredients of the section 58 offence as set out in section 58(1), can be re-introduced into that offence via the concept of reasonable excuse under section 58(3). We are unable to see that that follows. What section 58(3) does is to furnish a defendant with the opportunity to say that he had an explanation for possessing the material which he asks the jury to say was objectively a reasonable one. It necessarily focuses upon his reason for possessing the material. His reason for possessing it will in most if not all cases involve saying what he had it for, and thus what his purpose was in possessing it."
[10]Similarly it seems to us that in this case although the fact that the defendant does not know or believe that the document is false is not of itself and without more a reasonable excuse, a defendant is entitled to ask the jury to consider objectively whether he has a reasonable excuse for possessing the material and for not having destroyed it or handed it into the authorities, and the fact that he does not know or believe that it is a false document, because of the circumstances in which it has been obtained, may well have a bearing on that question.[11]It follows that we see no reason why the defendant in this case ought not to be able to rely upon the genuine belief that the document was valid as an element in her basis for contending that she had a reasonable excuse for having this document in her possession.[12]Mr Rupashina, counsel for the prosecution, contends that in fact the defence was never put in that way. It was always the defendant’s case that mere honest belief that the document was genuine was itself a defence without more. It seems to us that in fact there was in her explanation at least an implied representation that her belief that the document was genuine was reasonable. In any event, we do not think it would be just in the circumstances to uphold a conviction when in our view the defendant had raised sufficient evidence to leave the question of reasonable excuse to the jury. A jury would in our view in principle be entitled to conclude that her story as to how she came into possession of the passport was true and constituted a reasonable excuse for her possession of it.[13]Accordingly, we consider that the judge erred in his ruling at least to the extent that he found that the circumstances of her being put in possession of the passport were irrelevant to the issue of reasonable explanation. Since that was the only reason why the appellant pleaded guilty, it follows that we must quash the conviction.[14]I do not know whether any of the community sentence has been served.[15]MISS DUNBAR: It has. The appellant has 27 hours left of the community service.

LORD JUSTICE ELIAS: In any event it was perhaps a slightly surprising prosecution given that she had a genuine passport in her possession. Be that as it may, we assume that will be the end of the line?

[17]MR RUPASHINA: Yes, my Lord.

LORD JUSTICE ELIAS: Thank you both very much for your submissions.

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