Citation – Idhoiaissine [2015] EWCA Crim 1872
Date – 12th November 2015
Keywords – Conviction, false passport, indictment errors
Overview –Conviction under the Identity Documents Act 2006 unsafe where that Act had been repealed and replaced
Summary –I had been arrested for an offence in July 2013, for which he was later acquitted. When being booked in, he had two false documents dated from 2010. He made full admissions to having used these to try and gain employment, knowing that they were false.
He was indicted on 2 counts under the IDCA 2006 and pleaded guilty, getting 15 months. An appeal against sentence out of time was lodged, and it was noted in the Court of Appeal Office that by the date on the indictment on which the offence was alleged to have been committed (not named, but presumably the date of arrest in 2013), the IDCA had been repealed and re-enacted in the same terms by the Identity Documents Act 2010.
Referring to Stocker [2013] EWCA Crim 1933 (and Abdul [2012] EWCA Crim 1788 (unreported)), I was charged with an offence not known to law and the conviction could not be considered safe.
Comment –
(1) There was the briefest discussion as to whether the decision in Stocker might be enough to save the conviction (despite the fact that Abdul was specifically approved in Stocker) but it was decided that it was not necessary to resolve it in the circumstances of the case (the sentence being long served). It may be that this argument is expanded on in future cases.
(2) As to the merits of it, the argument that the conviction is safe following Stocker is a strong one. In Stocker, a rape that was committed in 2008 had been indicted under the 1956 (pre-2003) Act. The Court held that that conviction was safe “The only error here was to click the 1956 box rather than the 2003 box. It could have been cured easily by an amendment at any time. That seems to us to be something of a pure technicality. It has caused no prejudice whatsoever.”
All of this is true, but would apply equally to the position here (and in Abdul). If anything, this case appears stronger – although the offence is called something slightly different, the particulars are the same. In Stocker, although the offence was called the same thing (rape), the elements of the offence are different, and someone could be guilty of rape under the 2003 Act, but not guilty under the 1956 Act.
The argument that Abdul was a different situation entirely would not appear to be a compelling one.
That is not to say the decision here is incorrect, but the question would be whether Stocker itself is correct. True it is that this is a ‘technical’ defect that could have been cured at any time, and that no prejudice was caused. That doesn’t stop the fact that Mr Stocker was convicted of an offence that was not known to law. However inconvenient it may be, it is hard to see how a conviction in those circumstances could be anything but unsafe.
A defendant would not get off scot free. The prosecution would be entitled to proceed again against him on a correct indictment, so no grave injustice would be done.
It would be inconvenient, and if a complainant is forced to give evidence again, then this would be more so. However, it should not be too much to ask for the indictment to contain an offence that actually exists, and allowing the appeal may focus the minds of everyone in future.
But that is probably all by the by; Stocker will be binding on any future Court.
(3) In this case it appears that I accepted historic use. In those circumstances, it would be possible to have indicted him under the IDCA 2006 on the basis of his admissions. The problem in the indictment alleging an offence not known to law remains however.
(4) In this case, the Court could have issued a writ of venire de novo. But whether that is done, or the appeal allowed, is there a bar on the prosecution starting proceedings again, but under the correct indictment?
The answer would appear to be that there is no legal impediment (although they may well be met with an abuse argument) and if there were a conviction, then no punishment should follow. In light of that, it is unlikely that the Crown would wish to in cases such as this, although it cannot be ruled out in a suitable case.
Judges – Davis LJ, Edis J, HHJ Cutts QC
Immigration Offences 