Lord Macfadyen

C. G. B. Nicholson, Q.C.

[2007] HCJAC41

Appeal No: XC 165/07


delivered by LORD MACFADYEN










Act: Borthwick; Burn & McGregor

Alt: Galbraith, A.D.; Crown Agent

20 July 2007

[1] On 21 February 2007 at Aberdeen Sheriff Court the appellant, John Kunle, pled guilty to a charge that with the requisite intention he had in his possession or under his control an identity document, namely a passport in name of Babatunde Odebiji Johnston, that was false and that he knew or believed to be false, in contravention of section 25(1)(a) of the Identity Cards Act 2006 ("the Act"). The "requisite intention" is the intention of using the document to establish facts about himself, such as his identity (see section 25(2)(a) of the Act, read with section 1(5)).

[2] On 7 March 2007 the sheriff sentenced the appellant to two years imprisonment, backdated to 18 January 2007 when the appellant was first remanded in custody. In selecting that period of imprisonment the sheriff applied a discount of one third to reflect the fact that the plea was tendered in accordance with the procedure laid down in section 76 of the Criminal Procedure (Scotland) Act 1995. The sheriff also recommended that the appellant be deported.

[3] The circumstances of the offence were that the appellant was apprehended in Aberdeen Railway station, where police officers thought that he was acting suspiciously. He was found to be in possession of a false Nigerian passport in a false name. He explained that he had entered the United Kingdom using another false passport in a different name, which he had obtained in Nigeria. Having gained entry on that false passport, he required to return it, and had paid for and been supplied with the passport to which the charge related. That passport was physically obviously false.

[4] In his report, the sheriff explained his selection of the sentence which he imposed in the following terms:

"It is clear that parliament intended an offence under this Section to be a potentially serious one. It seemed to me that there was a possible broad range of offences in respect of section 25(1)(a) including possession of multiple documents, possession for the purpose of dealing, or possession following previous convictions. I considered that the charge as described to me was not at the top end of the scale but that the circumstances which had been narrated to me indicated that it remained a serious breach of the statutory provision. It had been committed against the background of using false papers to circumvent the immigration rules and, once in this country to acquire new false papers to support a false identity. I considered that the sentence required to have some deterrent effect on others. In all the circumstances, I considered that no disposal other than a custodial one was appropriate.

I considered that a sentence of three years imprisonment was appropriate as a starting point."

[5] Mr Borthwick, who appeared for the appellant, had presented commendably clear written submissions under Rule 15.16, and was consequently able to address us very briefly. It was accepted that a custodial sentence was appropriate. It was submitted, however, that the length of the sentence selected by the sheriff was excessive. The sheriff had accorded insufficient weight to (i) the particular circumstances of the offence, which involved possession of a single document, but no actual or attempted use of it; (ii) the personal circumstances of the appellant, a 35 year old married man with a three year old son in hospital in Nigeria, who had no previous convictions, and who had fled Nigeria in fear of his life in a family dispute; (iii) the appellant's early plea of guilty; and (iv) the fact that the appellant did not seek to dispute the deportation proceedings against him. Mr Borthwick further submitted that the sheriff erred in taking into account circumstances that constituted a separate offence which was not the subject of a charge, namely the fact that the appellant had entered the UK using a different false document (R v Cakraj [2007] EWCA Crim 366, paragraph 8). Finally, Mr Borthwick submitted that, although they were not binding on us, certain English cases afforded useful guidance in relation to this offence under a United Kingdom statute. He referred in particular to R v Kolawole [2005] 2 Cr App R (S) 14, a case dealing with earlier statutory provisions which carried the same maximum sentence of ten years imprisonment. In that case Rose LJ indicated (at paragraph 6) that where one false passport was being used, or held with the intention of use, the appropriate sentence, even on a guilty plea by a person of good character, should now usually be within the range of 12 to 18 months. Reference was also made to the following cases as examples of that guidance being followed: Cakraj; R v Juma [2007] EWCA Crim 936; R v Adebayo [2007] EWCA Crim 878; and R v Baby-Olia [2007] EWCA Crim 1174.

[6] In our opinion the sheriff was right to regard the appellant's offence as requiring a custodial disposal. We accept, however, that he misdirected himself to the extent that he took into account the fact that the appellant had used a different false passport to enter the UK. That was not an offence with which the appellant was charged. We find it helpful to be aware of the approach adopted to such offences in England, and agree with the view of them reflected in the cases cited to us. In the result, we are of opinion that the gravity of the appellant's offence would be adequately marked by a sentence of twelve months imprisonment, based on a starting point of eighteen months, and reflecting the appropriate discount of one third allowed by the sheriff in respect of the early plea of guilty.

[7] In the result, therefore, we allow the appeal, quash the sentence of two years imprisonment imposed by the sheriff and substitute a sentence of twelve months imprisonment with effect from 18 January 2007.