Case No: 98/2786/X4

Neutral Citation Number: [1998] EWCA Crim 1844
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Tuesday 9th June 1998
B E F O R E :

VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(LORD JUSTICE KENNEDY)

MR JUSTICE JOWITT

and

MR JUSTICE ASTILL

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R E G I N A

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ALI OSMAN

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Computer Aided Transcript of the Stenograph Notes of
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MR T BERGIN appeared on behalf of the Appellant

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JUDGMENT

LORD JUSTICE KENNEDY: On 3rd March 1998 at Crawley Magistrates' Court this appellant pleaded guilty to the offence of using an instrument, namely a British Passport in the name of David John Morgan, which was and which he knew to be false, with the intention of inducing somebody to accept it as genuine and by reason of so accepting it to do or not to do some act to his own or another person's prejudice.  An offence contrary to section 3 of the Forgery and Counterfeiting Act 1981.  He was committed to the Crown Court for sentence and on 6th April 1998 in the Crown Court at Chichester a sentence of nine months' imprisonment was imposed upon him.  When imposing that sentence the learned sentencing judge said this:
"We are very conscious when dealing with these matters that we rarely see the people who organise the system whichever one it is.  Nevertheless, we have to pass sentences to make it clear to people that it is not worth proceeding down this route to leave this country. The offences therefore are so serious that only a custodial sentence can be justified for it, and we would observe in passing that you have probably done yourself no favours when it comes to questions of your appeal." 
He indicated that the number of cases coming through the courts in his view, and as my Lord has pointed out he was well placed to have a view about the matter, was reaching epidemic proportions and therefore that it was necessary to sentence in such a way as to make it clear  that such offences cannot be tolerated.
      The facts were these, and very simple; at about 7.15 am on 3rd March 1998 the appellant attempted to board a flight to the United States from Gatwick Airport. He produced the passport to which the charge referred in the name of Morgan; it was plainly not his. The customs officers became suspicious as they looked at the passport and he was arrested before he boarded the flight.  When he was interviewed he, a Sudanese National, stated that he wished to go to the United States in order to start a new life as he feared that he would lose his current appeal for political asylum in this country.  The background to that is set out in the advice which we have seen and in the grounds of appeal which indicate that he had left Sudan, where he claims that he had been tortured, and made his way eventually to the United Kingdom.  He then made an application for political asylum but feared, it seems, that that application would not be successful and against that background was encouraged by his relatives in America to go to America where it was believed that the authorities would be, in his words, more sympathetic to his plight than they might be in the United Kingdom.  Thus it was that he fell prey to the temptation to go.
      A similar situation has confronted this court on  two previous occasions.  In the case of Hadzic (17 June 1997) the facts were broadly similar and on that occasion this court dismissed an appeal against a sentence of 12 months' imprisonment which had been imposed.  Judge Myerson QC giving the judgment of the court said at page 4 of the transcript:
"It must be emphasised that those who seek to travel should do so lawfully and that the regulations which govern travel from one country to another must be observed for the sake in particular of those who seek to travel lawfully, who seek to abide by the law and to determine their conduct upon the basis of that which relevant authorities allow them to do." 
That case having been decided in June 1997 the case of Takyi came before the court on 3rd October 1997.  In that case the sentence which had been imposed was a sentence of nine months' imprisonment and that was reduced on appeal to this court to a sentence of three months' imprisonment.  The only significant difference between the case of Takyi and the case of Hadzic was that in the case of Takyi the passport had not in fact been altered; an attempt had been made to use someone else's passport without making any alteration.  We for our part do not regard that as a significant distinction.
      The problem therefore we have to face in the light of those two authorities is how a court should sentence in relation to this type of offence.  We, having had the  benefit of the submissions made to us by Mr Bergin, and having looked carefully at the transcripts of those two cases, have come to the conclusion that the later decision is one which should be treated as confined to its own facts and should not be used as an indication of the type of sentence appropriate in this type of case. That is not said out of any lack of sympathy for those who find themselves in the position of this appellant. Nevertheless, for guidance we consider that it is necessary in the future to have regard to the earlier case of Hadzic, for the reasons indicated by Judge Thorpe in the present case that here it is necessary to deal with an offence which has become prevalent.  Even when a defendant is under considerable personal pressure, as for example when he is a refugee seeking a decision in relation to an application for political asylum, his conduct cannot be excused if he defies the law and attempts to leave the country by using a passport which is not his, whether or not it has been altered.  The Customs and Excise authorities have a difficult and responsible job in attempting to control the flow of people into and out of the United Kingdom and the courts must, when appropriate, play their part in supporting the authorities.  They must try when sentencing so far as possible to discourage others who  may be tempted to abuse the system in the way that this appellant patently attempted to abuse it.  In those circumstances we have come to the conclusion that the sentence which was passed in this case was the right sentence and the appeal therefore is dismissed.