Belkaid [2018] EWCA Crim 2488

Regina v Ayoub Belkaid [2018] EWCA Crim 2488 concerns an appeal against sentence by the Court of Appeal (Criminal Division) which was allowed in part, reducing a sentence of four years’ imprisonment to three years and two months.

The appellant pleaded guilty at the Crown Court in Oxford on 27 October 2017 to conspiracy to make a false instrument contrary to section 1(1) of the Criminal Law Act 1997. He subsequently applied to vacate his plea but withdrew that application on the day of hearing. On 3 April 2018 His Honour Judge Ross sentenced him to four years’ imprisonment.

The case arose from an operation by the Belgian police into an identity card factory whereby Belgian nationals, principally of North African origin, created forged Belgian identity cards for use by individuals throughout Europe. The Belgian police notified Thames Valley Police that the appellant appeared to be connected to that factory and was operating from an address in Oxford. On 25 March 2016 a search warrant was executed at that address. An iPhone was seized containing numerous e-mails to and from the Belgian document factory. The appellant’s role was that of a go-between. North African residents in this country would send him passport-format photographs by e-mail, which he would forward to Brussels. Brussels would sometimes send back instructions that photographs needed to be changed. Eventually the photographs would be printed into forged Belgian identity cards and sent back to the appellant, who would pass them to his customers. The appellant admitted being involved with two individuals, one of whom, Mr Toudefete, was traced and arrested whilst working in Oxford using a forged Belgian identity card obtained with the appellant’s assistance. Belgian police enquiries showed that the appellant was known to them through his fingerprints and appeared to have a different identity in Belgium.

The appellant was interviewed following arrest and made no comment. He subsequently pleaded guilty on a written basis accepted by the prosecution. That basis stated that he did not create or make any fraudulent document; that he communicated with two named individuals in relation to fraudulent documents; that he knew the identity cards came from Belgium but did not know the extent of the operation; that he understood the cards would be used by people to obtain employment or for travelling purposes but nothing beyond these; and that his involvement was to pass on photographs and information that would be used for creating the fraudulent documents.

The appellant was aged 37 with previous convictions on seven occasions for twelve offences between 2003 and 2005. Notably, in 2005 he was sentenced to fifteen months’ imprisonment for forging a document. The pre-sentence report stated that he was born and raised in Algeria, fled to the UK in 2001 and claimed asylum, but his application was refused. He remained illegally. Following his forgery conviction he was deported from the UK but returned in 2011 having married an EU citizen. In 2014 he was the victim of a workplace accident which left him with mobility issues and unable to work. He received industrial injury benefit but had struggled financially. The probation officer understood his involvement in the present offences to be financially motivated. He was assessed as posing a low risk of general reoffending and a medium risk of harm to the public. The probation officer was unable to propose any alternative to an immediate custodial sentence. A psychiatric report recorded that since 2014 the appellant had been treated with anti-psychotic medication for psychosis. He presented with features consistent with a psychotic mental disorder but not a severe disorder such as paranoid schizophrenia. At the material time of the offence, it was unlikely he was experiencing significant features of psychosis. A hospital order would not be appropriate.

In passing sentence, Judge Ross said the appellant had connections with a significant identity document forgery operation based in Belgium and had acted as their agent in this part of the UK. The court could not ignore that he was known to the Belgian police, registered there with a different identity, a different name and age than that used in the UK. It was clear he must have had a close connection with the Belgian operation. The previous conviction was a serious aggravating feature. While there was some evidence of him being paid for his part, the judge said that was not the whole story and it was clear that there were other things going on in relation to the purpose of the creation of these documents. The appellant accepted they were in part for use in travel. Those involved in the creation of forged documents which enabled travel between countries within the European Union and within the Schengen area were involved in significant breaches of securities, not only of the UK borders but of the borders of European neighbours. The appellant had pleaded guilty at the preliminary hearing which would ordinarily have attracted credit of 25 per cent, but he did not maintain that position and made an application, not pursued, to vacate his plea which reduced his credit to 20 per cent. He would be dealt with for an offence of conspiracy. He was not as significant in the hierarchy as those in Belgium but did have a significant and trusted role, bringing to bear expertise which had been demonstrated in his previous conviction. The starting point after trial would have been five years’ imprisonment with 20 per cent credit for plea, giving a sentence of four years.

On the appellant’s behalf Mr Khoshdel argued that the sentence was manifestly excessive since the judge impermissibly departed from the agreed basis of plea. The Belgian part of the conspiracy was unearthed as part of the Belgian police investigation into the terrorist attacks in Paris. Counsel submitted that the judge was influenced by this feature although the appellant had pleaded guilty on the basis that he understood the identity cards would be used by people to obtain employment or for travelling purposes but nothing beyond these. In the course of his sentencing remarks the judge had said that whilst there was some evidence of the appellant being paid for his part, that was not the whole story, and there were other things going on in relation to the purpose of the creation of these documents. The appellant accepted they were in part for use in travel. Those involved in the creation of forged documents which enabled travel between countries within the European Union and the Schengen area were involved in significant breaches of securities. In the course of the prosecution opening, Mr Ward-Jackson had said he had not seen any mention of money changing hands on the papers, though one assumes the defendant was not doing it out of the kindness of his heart. The judge had responded “Or it was for other purposes.” Mr Ward-Jackson had replied “Well, it may have been for ideological purposes.”

Mr Khoshdel submitted the judge should have taken guidance from R v Ovierakhi [2009] EWCA Crim 452, a case of possession of a false identity document contrary to the Identity Cards Act 2005, section 25(1)(a). In that case the court drew a distinction between possession of a false identity card for employment purposes and possession to gain entry or travel, the latter being more serious. Mr Khoshdel also relied on the Sentencing Council’s guideline on fraud, bribery and money laundering offences, which includes a section on making or supplying articles for use in frauds contrary to section 7 of the Fraud Act 2006. This offence has the same maximum penalty as the offence faced by the appellant, namely ten years. He submitted the appellant’s offence would be regarded as one of medium culpability and, for the sake of argument, greater harm, for which the Council recommends a starting point of two years and six months with a range of up to five years. While the previous conviction for forgery would be an aggravating factor, it would not justify going to the top of the range particularly when regard is also had to the length of time since that conviction and the psychiatric report.

The court held that Ovierakhi concerned offences of possession which were significantly less serious than conspiracy to make false instruments. The Council’s guideline was of some assistance but omitted several features of the present case. In particular, this was an offence of conspiracy, which counsel acknowledged was an aggravating feature. Secondly, this was a conspiracy with an international dimension. Thirdly, the Council’s guideline was mainly concerned with offences where the harm was largely assessed in financial terms. The judge was entitled to say that the harm in offences of this type was less tangible. It subverted border controls which could jeopardise security of this county or the security of other Member States.

Mr Ward-Jackson referred in his respondent’s notice to R v Velev [2009] 1 Cr App R(S) 96, which concerned a conspiracy to produce false identity documents and passports. Following guilty pleas to two such counts, for which full credit was given, a sentence of six years was upheld by the Court of Appeal. Silber J said that in cases of that sort organisers can expect sentences of nine years after a trial while those who are workers and lieutenants would receive sentences in the order of six and a half years after a trial. Mr Ward-Jackson fairly acknowledged that the scale of the conspiracy in Velev and the appellant’s role in that case was much greater than the present case. Velev was cited in R v Adam Mussa [2012] 2 Cr App R(S) 99, in which the court stressed that all cases are fact specific but the key considerations in sentencing are the role of the offender in the operation, its scale and the sophistication of its products, the type of false documents being manufactured, the damage caused in terms of the distribution of false documents, and the income generated.

The court observed that in this case there was limited information on those factors. It did seem that the Belgian operation was of some size. The appellant was a trusted operative as the nature of his communications with his Belgian counterparts apparently showed. The appellant’s involvement, consistently with his basis of plea, was limited to two cases where false documents were to be used for employment and travel. The appellant’s previous record was undoubtedly an aggravating factor and the judge could properly take into account his use of a false identity in Belgium. All of that said, the court had some sympathy with Mr Khoshdel’s submission that the judge was influenced by the terrorism connection with the wider conspiracy. His sentencing remarks and the exchange with Mr Ward-Jackson in the latter’s opening left a lingering suspicion to that effect. Mr Khoshdel was entitled to say that if this was the case, it was not consistent with the appellant’s basis of plea. Of course, a judge is not bound by a basis of plea even if the prosecution are prepared to accept it, but in those circumstances the judge should put the defendant on notice and give him an opportunity to give evidence. That did not happen here.

Disregarding this element, after a trial, the proper sentence in the court’s view would have been one of four years. No issue was taken with the judge’s allowance of 20 per cent for the appellant’s plea. Accordingly, the court quashed the sentence passed by the judge and substituted one of three years and two months. In short, the appeal succeeded on the basis that the sentencing judge had been impermissibly influenced by a terrorism connection inconsistent with the accepted basis of plea, and the sentence was reduced from four years’ imprisonment to three years and two months.

Ovieriakhi [2009] EWCA Crim 452
R v Velev [2009] 1 Cr App R(S) 96
R v Adam Mussa [2012] 2 Cr App R(S) 99

Medley-Feehan [2020] EWCA Crim 1077