Clause 27 - Possession of false identity documents etc.
Identity Cards Bill
4:30 pm
Roger Gale (North Thanet, Conservative)
We now come to amendment No. 91, with which we will discuss the following amendments: No. 92, in clause 27, page 23, line 29, at end insert
‘unless he has that person’s permission and has good reason to have that document in his possession’.
No. 225, in clause 27, page 24, line 5, after ‘false’, insert
‘and that he knows to be false or has reasonable grounds to believe to be false’.
No. 226, in clause 27, page 24, line 6, after ‘obtained’, insert
‘and that he knows or has reasonable grounds to believe to have been improperly obtained’.
Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)
I rise to move the amendment, but I do not have my notes to hand.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
I apologise, Mr. Gale. I have left my hon. Friend in the lurch. I was busy preparing to speak to amendment No. 93; as you know, Mr. Gale, I have behind me the full resources of the vast number of Opposition civil servants. I shall leave it to my hon. Friend to deal with amendment No. 91.
Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)
I was drawn to speak not by the hon. and learned Gentleman’s attempt to introduce amendment No. 91, but by his point about the vast array of civil servants that he has, or has not, got behind him. I want to make it clear to the entire Committee that the vast army of civil servants that I have behind me had nothing to do with my previous speech.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
That I believe.
Roger Gale (North Thanet, Conservative)
Order. On reflection, I think that I had better say nothing about that, but I am not entirely clear which hon. Member has moved amendment No. 91.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
As I am on my feet, I shall deal briefly with amendment No. 91, which I shall now move.
I beg to move amendment No. 91, in clause 27, page 23, line 29, at end insert
‘unless he has reasonable cause to be in possession of that document’.
The amendment stands in my name and in the names of my hon. Friends. My hon. Friend the Member for Newark will try to catch your eye shortly, Mr. Gale.
Nick Palmer (Broxtowe, Labour)
I shall assist the hon. Member for Newark and his researchers by intervening briefly.
I note what the hon. and learned Member for Harborough said earlier, but I have served on about a dozen Bill Committees, and I know that it is customary for Opposition proposals to make sense even if they are only probing amendments. I do not know whether Opposition Members have had the chance to read subsection (2). The amendment mentions
“reasonable cause to be in possession of that document”.
Apparently, that is proposed despite subsection (2), which essentially relates to a person wishing to use the document to pretend to be somebody else. Do they really mean that?
Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)
I am most grateful for the indulgence of several of the Members present.
Roger Gale (North Thanet, Conservative)
Order. I apologise, but I was carried away with such enthusiasm in trying to work out who was moving the amendment that I forgot to put the Question. I hereby rectify that.
Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)
I seem to have put everyone in a bit of a pother with this one. It is entirely my fault and I am grateful for the assistance of all Members, including the hon. Member for Broxtowe, who no doubt seeks to assist me in respect of this group of amendments. He has a point; amendments Nos. 91 and 92 overlap unacceptably. Poor drafting on my part has made amendment No. 91 redundant. Therefore, if it is in order, Mr. Gale, I shall simply address amendment No. 92.
Roger Gale (North Thanet, Conservative)
Order. The hon. Gentleman may address any of the amendments in the group. The amendment moved is the one that he does not want to talk about—amendment No. 91—about which I have no power to do anything.
Patrick Mercer (Shadow Minister (Homeland Security), (Assisted By Shadow Law Officers); Newark, Conservative)
Thank you, Mr. Gale. In that case I will quickly make my comments address amendment No. 91; I wish that they would reflect more closely amendment No. 92.
Amendment No.91 seeks to insert these words:
“unless he has reasonable cause to be in possession of that document”.
That is expanded further in amendment No. 92:
“unless he has that person’s permission and has good reason to have that document in his possession”.
I think that, despite my peregrinations, it is clear that we simply want to introduce in clause 27 a further understanding of why a false identity document will not necessarily always be acquired knowingly. There could be good reasons why someone has false documentation without their necessarily realising. They could have borrowed it or—this is more likely—had it planted upon them.
No doubt the hon. Member for Westmorland and Lonsdale will wish to add his comments about the other amendments, but I would simply be most grateful if the Under-Secretary made it clear why the proposed words should not be included.
Tim Farron (Westmorland and Lonsdale, Liberal Democrat)
I rise simply in regard to the amendments standing in my name and that of my hon. Friend the Member for Orkney and Shetland. Surely, in relation to clause 27(5)(a), intent is everything. There are many reasons why a person may have an inaccurate and potentially false document on their person without intending to mislead, to enable access or to pass themselves off as somebody else. Clearly it is possible that someone could have an out-of-date document with their maiden name on it, which would indeed be false, because they had not got round to changing it. It is important that we improve this part of the Bill by clarifying that intent is the key element. It is on that basis that I support the amendments.
Ben Wallace (Lancaster and Wyre, Conservative)
I am not sure whether we will have a stand to debate on the clause. [Hon. Members: “Stand part”.] Indeed. If any part of the Bill is the best part and the one that should remain if everything else was stripped away, it is this. It is an important and useful contribution to fighting terrorism and false identity, and I welcome the clause.
However, I must ask one clarificatory question, which may arise for legal or other reasons. Subsection (7) says that the good people of Scotland and Northern Ireland will get a term of imprisonment
“not exceeding six months or a fine not exceeding the statutory maximum”,
whereas the good people of England and Wales will get a term “not exceeding 12 months”. Why is there a difference in sentencing? I am sure the reason can be pointed out easily.
In a spirit of support, I say that this is a useful part of the Bill and I know that agencies throughout government will support it. It is a good step towards solving our problem.
David Drew (Stroud, Labour)
On a point of order, Mr. Gale. I want to be completely clear. Amendment No. 92 seems to replace amendment No. 91, although amendment No. 91 is the lead amendment. I seek your guidance as to how the Opposition get to amendment No. 92, given that amendment No. 91 is not their preferred amendment.
Roger Gale (North Thanet, Conservative)
For once, that is a genuine point of order and I will endeavour to respond. Amendment No. 91 is the lead amendment. It is grouped with amendments Nos. 92, 225 and 226. Once the amendments have been debated, it is open not only to the Opposition, but to any Member of the Committee, to seek to persuade the Chair to call another amendment independently. In other words, if the hon. Gentleman wishes to persuade me that he would like to move amendment No. 92 formally, that is something I will consider at the appropriate time. The amendment under discussion, which has been moved, is amendment No. 91. I hope everyone understands that.
Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)
Thank you, Mr. Gale. I think I understand that point. We will find out.
First, I want to preface my main remarks by picking up on the comments made by the hon. Member for Lancaster and Wyre and thanking him for his helpful contribution. He has wide-ranging experience in the field and I welcome his welcome of the new offences, which might be enacted in advance of any national identity register or ID card scheme. We will have to consider that more closely once the Bill has been passed.
Amendments Nos. 91 and 92 would, in different ways, qualify the offence of possession of false identity documents with intent to use them. In considering the amendments, I urge Opposition Members to read subsections (1) and (2) of clause 27 together. By doing so, they will understand the balance of the clause.
The amendments would qualify possession of an identity document belonging to another as not falling in the scope of the offence when the individual concerned had the permission of the document’s owner and/or reasonable cause for having the document. As I said, it is apparent from reading subsections (1) and (2) together that the amendments are not necessary.
A person could not be guilty of the offence simply by having the identity document of another in his possession; the prosecution would have to prove that he had the requisite intention of using the document. The two elements taken together give rise to the offence under the clause. No defence is therefore required for the possession limb of the offence—that is, no defence can be made, as it is simply a fact whether someone has an identity document in their possession or not.
If a defence were added, it could give rise to the curious situation in which a person had a reasonable excuse for being in possession of a document, yet intended to misuse it. Obviously, we would not want that slightly confusing form of words in the Bill.
The amendments tabled by the hon. Member for Westmorland and Lonsdale relate to subsection (5), which creates an offence of mere possession. That offence would attract a lower penalty and is qualified by the words “without reasonable excuse”. Paragraphs (a) and (b) of subsection (5) create offences of possession without reasonable excuse of an identity document that is false or improperly obtained. Amendments Nos. 225 and 226 would qualify those offences by providing that the person must know or have reasonable grounds to believe that the document was false or improperly obtained.
I hope I can convince the Opposition that there is no need for those amendments. If a person did not know that they had a false or improperly obtained document, that fact would in itself amount to a reasonable excuse in the eyes of the law. It was said in the debate that intent is everything, but if an individual did not know that the documents were false or improperly obtained, he could use the “reasonable excuse” provision in the clause as part of his case.
We have had a slightly disorderly discussion on these amendments, but I hope we can bring it to a close. Without rejecting the amendments flatly, I think I can say that what the Conservative and the Liberal Democrat amendments would achieve is built into the clause. With respect to the Conservative proposals, possession must be balanced by intent in subsections (1) and (2); with respect to the measures tabled by the hon. Member for Westmorland and Lonsdale, the very fact of the person’s knowledge, or lack of it, would be relevant to the test of “reasonable excuse”. In both cases, the concerns are taken care of, and I urge hon. Members not to press their amendments.
Roger Gale (North Thanet, Conservative)
On reflection, the Under-Secretary may wish to consider the fact that this Chairman does not permit disorderly debate. With that in mind, if the hon. Member for Westmorland and Lonsdale wishes to respond he may do so, but technically the hon. and learned Member for Harborough should make the winding-up speech because he moved the lead amendment.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
I am delighted to do so, because it enables me to thank my hon. Friend the Member for Newark for seconding the amendment with rather greater organisation than I could muster at the outset. As the Opposition spokesman, I must take responsibility for any infelicities that occur on the Conservative Benches, even if the Government have plenty to answer for.
Let me say on my hon. Friend’s behalf that I will not press the amendment to a Division. We have had a useful little discussion, but again, this is, I dare say, one of those issues that will have to be explored further at a later stage. I beg to ask leave to withdraw the amendment.
Roger Gale (North Thanet, Conservative)
Just so that there is no confusion, does anyone wish to move amendment No. 92 formally?
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
I beg to move amendment No. 93, in clause 27, page 24, line 12, leave out “ten” and insert “twelve”.
Roger Gale (North Thanet, Conservative)
With this it will be convenient to discuss the following amendments: No. 94, in clause 27, page 24, line 16, leave out “two” and insert “four”.
No. 95, in clause 27, page 24, line 18, leave out “twelve” and insert “six”.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
As the Under-Secretary said, the clause will establish three separate offences, and the amendment has been tabled to probe the Government’s thinking on the penalties for committing one of those. The first two offences, under subsections (1) and (3), require the requisite intention. Of course, the Crown—the prosecution—must prove to the requisite criminal standard the necessary criminal intent in the defendant to found a conviction.
The requisite intention is not present in the third category of offence. Instead, we face an offence committed by someone who has in his possession, or under his control, one of the documents or items set out in subsection 5(a) to (d) without reasonable excuse. Someone without a reasonable excuse could, if they were not careful, go to prison for two years or be subjected to a fine of an unspecified sum. If they were convicted after a summary trial before the magistrates in England and Wales, they could be liable to
“a term not exceeding twelve months or to a fine not exceeding the statutory maximum”.
In Scotland or Northern Ireland, they could be liable to
“a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both”.
The Under-Secretary will correct me if I am wrong, but the reason for the differences between the maximum penalty on summary trial in Northern Ireland and Scotland and in England is that following the Criminal Justice Act 2003—one of many criminal justice Acts that this Government have passed during the past few years—the arrangements for the maximum penalties available to lay magistrates, justices of the peace or what used to be called stipendiary magistrates or stipes, but are now called district judges in magistrates courts, have changed and their summary jurisdiction per offence has increased to 12 months.
I have spent far too long at Judicial Studies Board courses getting headaches trying to work out all the new criminal justice legislation to do with sentencing over the past year or so to want to impose this on my hon. Friend the Member for Newark, but perhaps he will take it from me that for the moment—it may change—the jurisdiction of England and Wales allows magistrates greater powers of summary punishment than Parliament has so far been prepared to allow the Scottish or Northern Ireland equivalents.
First, with regard to the penalties set out in the Bill, I need to know why the Government have lighted on 10 years, which will make the punishment akin to that for severe sexual offences, offences of violence and similar matters. Nasty, violent robberies and burglaries attract if not the same penalty, then certainly something similar to it. Why have they lighted on two years under subsection (5), on the unlimited fines and so forth? We need to know.
Secondly, we need to know who will have to establish that part of the case involving a reasonable excuse: is that for the defendant to prove on the balance of probabilities or for the Crown to disprove to the criminal standard? There will be occasions when mere possession of an instrument or document does not fit into the wording of the Bill. Plenty of people have a car, a gun or a knife, all of which may be used for a criminal purpose. Such instruments are innocent, but used with the wrong motive they can lead to terrible and criminal consequences.
Before passing into criminal law an item such as that set out in subsection (5), we need to be careful not to catch people who might not be able to establish a reasonable excuse, but who none the less are innocent in the eyes of most people. The Government need to exercise a little care.
Having said that, I look forward to what the Under-Secretary has to say about the penalty the Government think appropriate and my concerns on the burden of dealing with the question of a reasonable excuse.
Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)
As the hon. and learned Member for Harborough explained, the clause will create three new offences: first, possessing false identity documents with the intention of using them to establish registrable facts about a person and thus committing what is now called identity fraud; secondly, making or possessing any equipment that could be used to make false identity cards with the intention of committing or enabling someone else to commit identity fraud; and thirdly, possessing false identity documents without reasonable excuse.
Those new offences are designed to give the police an extra tool to disrupt terrorist and organised crime networks. If a person is in possession of a false document and it can be shown that they intend to use it, on indictment there is a maximum sentence of 10 years, as the hon. and learned Gentleman said. However, the offence of possession without reasonable excuse can apply even before use has been made of false documents or their intended use can be shown. That offence is triable either way; on indictment, the maximum penalty is two years.
Amendment No. 93 would increase the sentence for possessing a false identity document with the intention of using it from 10 years to 12. Amendment No. 94 would increase the penalty for the possession of a false document without reasonable excuse from two years to four. However, we think the balance in the Bill is about right.
The hon. and learned Gentleman asked how we had come up with our figures; I shall explain that to him with reference to other legislation. Section 5 of the Forgery and Counterfeiting Act 1981 makes it an offence for a person to have in his possession an instrument that he knows or believes to be false with the intention of inducing someone to accept it as genuine. The offence is subject to a maximum 10 years’ imprisonment. It is sensible to bring the maximum penalty for a similar offence in line with such legislation.
The hon. and learned Gentleman will know that the 1981 Act has been the principal Act of Parliament governing the use of forged documents, and the similar sentence in this Bill is consistent with it. Furthermore, having an offence of possessing forged documents and intending to use them is an attempt to bear down on the sophisticated gangs that use vast quantities of forged documents to perpetrate people trafficking, smuggling, and terrorist and organised crime networks. Ten years is a substantial sentence that is proportionate and consistent with other legislation.
Imprisonment for two years for possession of false documents without reasonable excuse should serve as a deterrent against terrorist activities, organised crime operations and those who traffic illegal or sex workers. Given the absence in the offence of any requirement of intention to use, I took the view that a maximum penalty of four years would be too high. I refer the hon. and learned Gentleman to clause 30, which contains an offence of providing false information in an entry on the register to obtain an ID card. The two-year penalty is consistent with that. We think it is balanced and right.
Clause 27 provides that a maximum penalty on summary conviction in England and Wales is 12 months, and in Scotland and Northern Ireland six months. The hon. and learned Gentleman was absolutely right to refer to the Criminal Justice Act 2003, which has given magistrates the power to extend sentencing to a maximum of 12 months.
Amendment No. 95 would replace the reference to 12 months with one to six months. We want to ensure that the Bill complies with the 2003 Act and enables magistrates to use the full range of sentencing options that the Act gives to them. The Act also provides for the concept of “custody plus”. Once that is in force, instead of imposing a six-month sentence, of which three would be served, magistrates will be able to impose a sentence of 12 months, of which a maximum of three will be spent in custody and up to nine under supervision in the community.
The Bill has been drafted so that once the powers of magistrates in England and Wales are increased, they can make full use of them in relation to the three offences that I have mentioned. We think that is right.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
Will the Under-Secretary help me with two points? First, is the subsection (5) offence, which is possession of one of those documents or instruments without reasonable excuse, internal to the subsection (1) and subsection (3) offences? In other words, if one were charged with a subsection (1) or subsection (3) offence, but found not guilty because one did not have the requisite intention, would the judge still be able to direct the jury, or the magistrates still be able to direct themselves, to convict on the lesser, subsection (5) offence?
It may be more appropriate to deal with my second question when we consider the next clause, and I do not wish to burden the Committee with my personal reminiscences, but wearing another of my hats, I have sentenced somebody under the Forgery and Counterfeiting Act 1981 to quite a lengthy term of imprisonment for entering this country with a forged passport. Will this Bill and the offences under clause 27 replace those relating to use of a forged passport under the 1981 Act, or will an almost identical offence be added? Will we be duplicating or providing a wholly separate law?
Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)
I shall attempt to provide the hon. and learned Gentleman with an answer. If I get any element wrong, I shall clarify the matter in writing. Proving possession and intent is obviously quite a high bar to get over, as he said. The 10-year sentence will be common when people are operating for the purposes of a serious crime. The “intent to use” limb of the offence could be difficult to prove; the offence of possession would of course be easier to prove.
I shall have to get back to the hon. and learned Gentleman on whether one offence will rule out another, or whether we might try for one offence and then go for the lesser charge. It will be up to the prosecution to determine which of the two offences might be made to stick. The lesser charge obviously carries with it a much lesser sentence, and the prosecution will have to judge which offence it is right to go for. I shall come back to him on that.
The hon. and learned Gentleman also asked about the two pieces of legislation and why we are not repealing the 1981 Act. My understanding is that the 1981 Act is much more general and deals with the whole range of documents. The Bill deals specifically with identity documents, and there are differences between the two sets of provisions.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
I asked my second question because, under clause 28(1)(d), a United Kingdom passport is an identity document for the purposes of clause 27. The 1981 Act deals with counterfeit passports, so I want to know whether the Government are duplicating existing law unnecessarily or whether a discrete offence will be created under the Bill that does not replicate an existing offence under the 1981 Act. I am not setting an exam; if the Under-Secretary wants to write to me about the matter, I shall be happy to receive his letter in due course.
Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)
I have already been summoned to the headmaster’s study once today, so I would hate to fail my test too. I have received some general information about the 1981 Act, which it would be useful to put on the record. The Act contains general references to making and using false instruments. I think that the instruments are defined widely under the Act and include stamps, discs and tapes. The offences therefore target forgery generally, not specifically the forgery of identity documents.
The offences do not apply to improperly obtained documents or documents that belong to someone else. In that sense, the offences that the Bill will put in place go further than those outlined under the 1981 Act. As we have discussed, they are intended to close the whole sphere in which people can perpetrate identity fraud.
We are increasingly aware that people have made fraudulent applications to obtain a passport, which could be a genuine document despite being acquired using false information. The answer to the hon. and learned Gentleman’s question is that the provision will broaden the range of offences that can be committed in respect of acquiring false documents or genuine documents that might have been acquired using false information. The Bill allows for that extension.
I hope I have covered most of the points made by the hon. and learned Gentleman, although he also asked about the burden of proof and the reasonable excuse defence under the clause. Reasonable excuse will have to be put forward by the defendant in a case; it will then be for the prosecution to disprove. Therefore, an evidential, not legal, burden will fall on the defendant. As I said to the hon. Member for Westmorland and Lonsdale, individuals might prove lack of knowledge relatively easily if the document has been acquired without their knowledge.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
I am sorry to interrupt the Under-Secretary, but he might be unwittingly misleading us. We must be careful about requiring a defendant to prove something. If such cases are to be similar to self-defence, that is a matter that the defendant will raise as an issue. He will present it to the court, but he cannot do that off the back of his head. He must have a basis on which to raise such a defence.
The individual does not have to do anything more than raise the issue: he will put up the target and invite the Crown to knock it down. If the process is the same as that of self-defence, I understand what the Under-Secretary is talking about, but, given that he talked about proving matters, we need a little more clarity.
Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)
I am sure the hon. and learned Gentleman will forgive me if I did not make matters clear. He is absolutely right that the defendant is not required to prove the grounds for his reasonable excuse. It is for the prosecution to knock down the case. I was simply extending the argument to say that, obviously, the individual will be safeguarded if the reasonable excuse is genuine, because it will be hard to knock down a genuine claim that there was no knowledge of the documents having been acquired. He is absolutely right about how this part of the Bill is intended to operate.
I will say a word about Scotland and Northern Ireland and the point that was raised by the hon. Member for Lancaster and Wyre in the last discussion. The apparent disparity in magistrates’ powers simply points to the fact that there are different and separate criminal justice systems in the UK. Obviously, the Bill must reflect that.
We have had a useful discussion. The penalties in the Bill are consistent with those in existing legislation. The two-year penalty is also consistent with the penalty elsewhere in the Bill for supplying false information to the register.
I can provide some further information to the hon. and learned Gentleman, who correctly picked up on the parts of the 1981 Act that deal with passports, and the duplication in legislation. I said that the Bill does not repeal parts of that Act, but in fact it does. I refer him to schedule 2, which repeals parts of the 1981 Act in respect of passports. The section 5 offence will take precedence over that Act.
With those assurances, I hope that the hon. and learned Gentleman will see fit to withdraw the amendment.
Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)
Well, I will. I beg to ask leave to withdraw the amendment.