Anthony William Beard & Ors

On a reference for an unduly lenient sentence under section 36 of the Criminal Justice Act 1988, the court must ask whether the sentence falls outside the range reasonably open to a judge who has considered all relevant factors.

Where false identity documents are supplied so that serious criminals can evade arrest and justice, the conspiracy to pervert the course of justice is the lead criminality. The creation of the documents is the means of committing it and should not merely be treated as an aggravating feature of a false-instruments offence. A persistent, organised scheme of that kind may require a sentence exceeding the maximum for the document offence.

At the Crown Court at Reading, Anthony Beard pleaded guilty to conspiracy to pervert the course of justice and conspiracy to make a false instrument with intent. Christopher Zietek and Alan Thompson were convicted after a nine-week trial of those offences; they were also convicted of converting criminal property.

The conspiracies obtained genuine British passports using the identities of real persons and photographs of fugitive serious criminals. The passports enabled those criminals to travel and avoid apprehension. On 16 May 2023, the judge imposed concurrent sentences of eight years on Zietek, six years eight months on Beard after guilty-plea credit, and three years on Thompson.

The Solicitor General referred the sentences under section 36 of the Criminal Justice Act 1988. The central issue was whether the judge had wrongly treated the perverting-the-course-of-justice conspiracy as an aggravating feature of the false-instruments conspiracy.

1. The reference succeeded in respect of Zietek and Beard. The court quashed their sentences on count 1 and substituted 12 years’ imprisonment for Zietek and 10 years two months’ imprisonment for Beard. Thompson’s sentence was lenient but not unduly lenient, and was not altered.

2. Applying the test in Attorney General’s Reference (No.4 of 1989) [1990] 1 WLR 41, a sentence is unduly lenient only if it lies outside the range reasonably available to a sentencing judge who has considered all relevant matters.

3. The judge had been given inadequate assistance. The prosecution had invited an approach which treated the perverting-the-course-of-justice conspiracy as aggravation of the conspiracy to make false instruments. That approach artificially confined the available sentence by reference to the ten-year maximum for the latter offence.

4. The correct approach was to treat the conspiracy to pervert the course of justice as the lead offence. The real criminality was the organised and sustained provision of genuine false-identity passports to persons involved in grave offending, so that they could evade arrest, frustrate warrants and remain abroad. The making of the documents was secondary to that purpose. The seriousness, persistence and organised-crime context placed the conspiracy at the upper end of seriousness and required a sentence above ten years for its organiser.

5. The court applied the procedural guidance in Stewart [2016] EWCA Crim 2238. A departure in a final reference from the prosecution’s Crown Court sentencing approach should be expressly identified and justified. The failure to do so here caused no prejudice and did not prevent the court exercising its statutory power.

6. Beard’s role in this conspiracy was less significant than Zietek’s, but his extensive similar offending taken into consideration justified the same twelve-year sentence after trial. A 15% reduction for his guilty pleas produced the substituted sentence of ten years two months. Thompson’s limited and non-essential role, age and serious ill-health justified the decision not to increase his sentence.

• Court of Appeal (Criminal Division): On the Solicitor General’s reference, the court held that the sentences of Zietek and Beard were unduly lenient and substituted sentences on count 1: [2023] EWCA Crim 1015. It did not interfere with Thompson’s sentence.
• Crown Court at Reading: On 16 May 2023, the judge imposed concurrent sentences of eight years on Zietek, six years eight months on Beard, and three years on Thompson.