Attorney General Reference Nos 1 & 6 of 2008

Where false passports or identity documents are possessed to assist the evasion of immigration control, deterrent imprisonment is required. An offender’s imminent deportation, and prison-capacity concerns, do not justify reducing the penal element below the appropriate level.

The position differs where the use of a false document has no connection with evading immigration control. In the exceptional case of a person unable to return home and not being removed, who uses a false document solely to obtain work, a suspended sentence with unpaid work may be a merciful but appropriate sentence.

These were two unconnected references under section 36 of the Criminal Justice Act 1988, alleging that sentences for offences involving false identity documents were unduly lenient.

Laby had acted as a courier for three forged South African passports and associated identity documents, apparently for use in evading immigration control. At Manchester Crown Court he received four months’ imprisonment concurrently on six counts under the Identity Cards Act 2006.

Dziruni, a failed Zimbabwean asylum seeker whose renewed application remained unresolved, had bought and used a false South African passport and national-insurance card solely to obtain menial work. At Sheffield Crown Court he received six months’ imprisonment suspended for two years, with 80 hours’ unpaid work. The common issue was whether either sentence was unduly lenient.

1. The reference concerning Laby was allowed. The four-month concurrent sentence was unduly lenient and was quashed. It was replaced by 12 months’ imprisonment. The court did not interfere with the sentencing judge’s discretionary decision not to recommend deportation.

2. Possession of false passports to facilitate unlawful entry, continued unlawful presence, or other evasion of immigration control requires a real deterrent element. The court followed the continuing sentencing guidance in R v Kolawole [2005] 2 Cr App R(S) 71. Laby was a courier carrying three false identities as part of an operation involving others. His expected removal from the United Kingdom after a short sentence did not provide sufficient deterrence and could not justify departing from that guidance.

3. The reference concerning Dziruni was refused. His case had no possible connection with a scheme to undermine immigration control, so the guidance in R v Kolawole had very limited application. He had identified himself to the authorities, could not practically return to Zimbabwe, was not being removed, and used the documents only to obtain employment rather than to conceal himself or procure entry.

4. The suspended sentence and unpaid-work requirement were not lenient, still less unduly lenient. They were a merciful but appropriate punishment in the very restricted circumstances of the case. A deportation order would have been absurd in light of the prevailing policy concerning Zimbabwe.

• Court of Appeal (Criminal Division): On the Solicitor-General’s references under section 36 of the Criminal Justice Act 1988, the court allowed the reference concerning Laby and substituted 12 months’ imprisonment; it refused leave on the reference concerning Dziruni: [2008] EWCA Crim 677.

• Manchester Crown Court: Laby pleaded guilty and received four months’ imprisonment concurrently on each of six counts.

• Sheffield Crown Court: Dziruni pleaded guilty and received six months’ imprisonment suspended for two years, with 80 hours’ unpaid work.