R v Carneiro (Rosiene Ribeiro)

This application for permission to appeal has been referred to the full court by the Registrar. We grant leave.

Rosiene Ribeiro Carneiro appeals against a sentence of six months' imprisonment imposed by His Honour Judge Cripps QC for two offences of possessing an identity document with intent contrary to section 25(5) of the Identity Cards Act 2006, to which the appellant had previously pleaded guilty.

The appellant is Brazilian. She came to the United Kingdom lawfully as a visitor and was granted permission to remain on the usual conditions, which included that she should not obtain employment. She overstayed. She obtained work as a cleaner but needed a bank account for her employers to pay her wages.

On 29th May 2007 she produced three forms of identification to open an account at a branch of HSBC in High Wycombe. The first document, the subject of count 1, was a Portuguese identity card in the name Renato Rodreguiz Breeto. The other documents were a gas bill and a salary slip. The bank accepted the documents as genuine and opened an account in the name of Miss Breeto.

On 12th July 2007 the appellant went to the bank to obtain a PIN number for the bank card she had been given. For this purpose she produced the same identification as before, and her production of the false Portuguese identity card gave rise to the charge under count 2. On this occasion staff were suspicious and called the police. She was arrested and interviewed. She immediately admitted that the Portuguese identity card was not hers, although it had her picture on it.

The preliminary hearing was turned into a plea and case management hearing, at which the appellant pleaded guilty on both counts. The judge expressed considerable sympathy for her. He indicated that if he had felt free to pass a suspended sentence, he would have done so, but he felt constrained by the authorities to which he had referred to impose an immediate custodial sentence, and he passed a sentence of 12 months' imprisonment concurrent on both counts. Subsequently his attention was drawn to the decision of this court in the case of Mutede [2006] 2 Cr App R (S) 22. In the light of that decision the judge had the case re-listed and reduced the sentence to one of six months' imprisonment on both counts. It is against that sentence which the appeal is brought, with the encouragement of the judge.

Section 25 of the Identity Cards Act 2006 creates three offences. Under section 25(1) it is an offence for a person with the requisite intention to have in his possession or under his control, among other things, an identity document that is false and that he knows or believes to be false. The requisite intention includes the intention of using the document for establishing registrable facts about himself. Registrable facts are defined in section 1(5). They include an individual's identity and address. Section 25(3) makes it an offence for a person with the requisite intention to make or have in his possession apparatus for the purpose of making false identity documents. Offences under section 25(1) and 25(3) carry a maximum personality on conviction on indictment of imprisonment for ten years.

Section 25(5) makes it an offence for a person to have in his possession or under his control, without reasonable excuse, an identity document that is false or improperly obtained. The maximum personality under section 25(5) on conviction on indictment is two years' imprisonment.

We have been referred to a number of cases under the 2006 Act or similar provisions under section 5(1) of the Forgery and Counterfeiting Act 1981, in particular Kolawole [2005] 2 Cr App R (S) 14; Oliveira [2006] 2 Cr App R (S) 17; Mutede [2006] 2 Cr App R (S) 22; Dogan [2007] EWCA Crim 110; and Adebayo [2007] EWCA Crim 878.

The circumstances of those cases differed in a number of respects. In some cases the charge was under 25(1), in others it was under section 25(5). Some involved passports, some involved other documents. In all cases custodial sentences were upheld, but the lengths varied. Certain distinctions have been drawn in those cases. For example, false use of a passport to obtain entry to the UK has been regarded as particularly serious. False use of another form of document to obtain employment after obtaining lawful entry to the United Kingdom has been regarded as less serious: see Mutede. A distinction has been drawn in general terms between an offence under section 25(1) and an offence under section 25(5) because of the markedly different maximum penalty imposed by Parliament: see Oliveira. However, it does not follow that the appropriate sentence in every case under section 25(1) must necessarily be...