Fitzgerald, R. v

Where a purported alternative offence was put to the jury in a written form containing the particulars of a separate count, the resulting verdict may be treated as a verdict on that separate count if the defendant suffered no unfairness and the conviction is safe. The court need not determine a technical question about the scope of Criminal Law Act 1967, section 6(3), where that conclusion disposes of the appeal. Where the evidence may support offences under both section 5(1) and section 5(2) of the Forgery and Counterfeiting Act 1981, the preferable course is to charge them in separate counts.

The appellant was convicted at the Crown Court at Middlesex Guildhall of possessing a false instrument contrary to section 5(2) of the Forgery and Counterfeiting Act 1981 and was sentenced to six months’ imprisonment. Police had found a passport in another person’s name but bearing the appellant’s photograph. The appellant accepted possession but said that any intention to use it to obtain credit was only a tentative and unexecuted idea.

After the defence case, the trial judge put the section 5(2) offence to the jury as an alternative to a section 5(1) count. The appellant was acquitted of the section 5(1) and handling counts but convicted of the alternative offence. He appealed against conviction and sentence. The central issue was whether the alternative verdict was lawful and, if not, whether the conviction could safely stand.

The appeals against conviction and sentence were dismissed.

1. The court declined to determine whether an allegation under section 5(1) of the Forgery and Counterfeiting Act 1981 expressly or impliedly amounted to, or included, an allegation under section 5(2) for the purposes of section 6(3) of the Criminal Law Act 1967. The prosecution’s submission on that issue had force, but the point was not necessary to the outcome.
2. The issue was highly technical. The appellant had been willing to plead guilty to a separately charged section 5(2) offence. He identified no way in which the defence would have been conducted differently, and no lawful authority or excuse for possessing the passport was suggested. The written document given to the jury set out the statement and particulars of the section 5(2) offence and had every appearance of a separate count.
3. Accordingly, the jury’s verdict could be treated as a verdict on a separate count. That course caused no unfairness and cast no doubt on the safety of the conviction. The court nevertheless recommended that, where the evidence may support either section 5(1) or section 5(2), the offences should be charged in separate counts.
4. The six-month sentence was adequately explained and appropriate. The appellant had caused the false passport to be brought into existence, and it remained capable of future criminal use by him or another person despite his stated present intention.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeals against conviction and sentence.
• Crown Court at Middlesex Guildhall On 10 May 2001, convicted the appellant of possessing a false instrument contrary to section 5(2) of the Forgery and Counterfeiting Act 1981 and imposed six months’ imprisonment. The jury acquitted him of the section 5(1) and handling-stolen-goods counts.