Possessing false identity document - Whether offence of strict liability - Judge ruling defence of reasonable excuse not available to defendant
R v Unah: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Wyn Williams and Sir David Clarke (judgment delivered extempore)): 12 July 2011
Section 25 of the Identity Cards Act 2006, so far as material, provides: ‘(1) 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… (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 defendant, aged 46, was a Nigerian national with indefinite leave to remain in the UK. On 17 June 2010, she attended a job centre in order to apply for a national insurance number. She provided a number of documents during the interview, including her current Nigerian passport, an expired Nigerian passport and a document evidencing her indefinite leave to remain. The expired passport was subsequently analysed and found to be false.
The findings of the document examiner were not challenged by the defence. It was accepted that the defendant's current Nigerian passport was legitimate.
On her return to the job centre on 5 August, the defendant was interviewed. She denied committing an offence and she contended that she believed that she had legitimately obtained the passport in question from Nigeria, with the assistance of a friend who regularly travelled between the UK and Nigeria. She further contended that she had completed the appropriate forms and that she had paid the appropriate fee in order to obtain the passport.
The defendant was arrested and charged with possession of a false identity document, contrary to section 25(5) of the act. She accepted that she had had the offending passport in her possession or control and that the biographical page of the passport was counterfeit, but she contended in her defence that she had not known or believed that the identity document was false and, therefore, she had a reasonable excuse.
As a preliminary matter, the judge ruled that section 25(1) of the act required the prosecution to prove that the defendant knew or believed the documents to be false but that that requirement did not exist for section 25(5). The judge ruled that the offence under section 25(5) was one of strict liability and that the defendant had no defence in law to the charge.
He held that the defence of ‘reasonable excuse’ applied where a defendant could justify his possession or control of the false document, for example where a person found a document and took it to the police to be handed in, or where a police officer confiscated the document, and did not apply to the quality of the document itself. Consequently, the defendant pleaded guilty on rearraignment to the offence. She was sentenced to a community order with a requirement to carry out 100 hours unpaid work. She appealed against conviction.
It fell to be determined whether an offence under section 25(5) of the act was an offence of strict liability without the requirement of proving that a defendant knew or believed the document to be false. The defendant submitted that the judge had erred in ruling that her belief that she had not known or believed that the identity document was false was irrelevant to the question of reasonable excuse, and that she could not as a matter of law, rely on that as a defence.
The appeal would be allowed.
As a matter of statutory construction, section 25(5) did not create an offence of strict liability. However, the mere fact that a defendant had no knowledge of the fact that a document was false did not amount to a defence of ‘reasonable excuse’. Something more was required. However, it did not follow that the lack of knowledge was irrelevant.
The concept of reasonable excuse was broad and the circumstances in which a document had been obtained, which had caused a defendant to believe it was genuine were relevant to the jury’s consideration, for example as a possible explanation as to a defendant’s possession of the document. It was settled law that the court would not infer a criminal offence had been committed where there had been no criminal intent. It was further settled law that possession of a document for an innocent purpose would not in itself amount to ‘reasonable excuse’.
The absence, in section 25(5) of the act, of the words ‘with the requisite intention’, such as found in section 25(1) indicated that the fact that a defendant did not have the knowledge or belief that a document was false was not in itself a defence. There was no justification to imply those words into section 25(5) of the act.
In the present case, while the mere fact that the defendant had not known or believed that the document was false did not in itself amount to a defence of reasonable excuse, the defendant had been entitled to ask the jury to consider her explanation for possessing the document and to consider her implied representation that she had had a reasonable belief that the document was genuine.
The document in question was an expired passport, and the jury might have considered that there had been no reason for the defendant to have kept it unless she had believed it to be genuine. The jury could have concluded that her story was true and consistent.
It followed that the judge had erred in finding that the defendant’s circumstances, which had led to her being put in possession of the false passport, were irrelevant to the question of reasonable excuse.
The conviction would be quashed.
Buki Dunbar (assigned by the Registrar of Criminal Appeals) for the defendant; Sunil Rupasinha (instructed by the Department for Work and Pensions) for the Crown.