Zenasni, R. v

For sentencing under section 25 of the Identity Cards Act 2006, the court must distinguish simple possession of a false identity document from possession with the specified intent to use it. The lower statutory maximum for simple possession must be respected, although that offence will ordinarily merit immediate custody. The purpose for which the document was possessed remains relevant to sentence even if it is not an element of the offence. A court may take account of the absence of an innocent explanation, provided it does not sentence as though the uncharged intent offence had been proved.

The appellant pleaded guilty before Westminster Magistrates’ Court to possessing, without reasonable excuse, a false identity document contrary to section 25(5) of the Identity Cards Act 2006. A forged identity card bearing his photograph was found during a random search. There was no evidence that he had used it or intended to use it, and he was not charged with the separate section 25(1) offence.

The Southwark Crown Court sentenced him to 15 months’ imprisonment. He appealed against sentence, contending that the judge had wrongly treated the apparent purpose of possession as relevant and had imposed an excessive term.

1. Appeal allowed. The sentence of 15 months’ imprisonment was reduced to 12 months.

2. The court accepted that De Oliveira [2006] 2 Cr App R (S) 17, concerning the equivalent distinction in the Forgery and Counterfeiting Act 1981, applied equally to section 25 of the Identity Cards Act 2006. A sentencer must identify whether the defendant has been convicted under section 25(1) or section 25(5). In a section 25(5) case, the lower maximum term fixed by Parliament is material. Nevertheless, simple possession of a false identity document remains a serious offence and will usually justify immediate custody.

3. The absence of a charge under section 25(1) did not make the purpose of possession irrelevant. Although a specific prohibited intent is not an ingredient of section 25(5), the purpose for which the document was held may properly affect sentence. An innocent explanation would be material. The judge was entitled to note that none had been advanced and to infer that the possession was not innocent. He did not err by responding to the submission that the absence of actual use should materially reduce sentence.

4. However, the 15-month term was effectively at the top of the seriousness range for a section 25(5) offence once credit for the early guilty plea was allowed. The facts did not justify that assessment. The appellant’s previous robbery conviction and recent release from custody justified a sentence above that imposed in De Oliveira, where the offender had been of good character, but 12 months was the proper sentence.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted 12 months’ imprisonment.
• Southwark Crown Court: On 15 May 2007, imposed 15 months’ imprisonment following the appellant’s guilty plea.
• Westminster Magistrates’ Court: On 17 April 2007, the appellant pleaded guilty to an offence under section 25(5) of the Identity Cards Act 2006.