This law report from The Times Tuesday November 28 2000 is about forgery and counterfeiting documents/instruments and presenting the contents of documents as being true when the circumstances in the making of the documents are false or absent.
PAGE PIC To DISPLAY ASAP
COURT OF APPEAL
Criminal Division
Published November 28, 2000
Attorney-General’s Reference (No 1 of 2000)
Before Lord Woolf, Lord Chief Justice, Mr JJustice Alliott and Mr Justice Bell
Judgement November 20, 2000.—————————–
An instrument was false for the purposes of section 9(1)(g) of the Forgery and Counterfeiting Act 1981 if it was a document which required, before it could be made or altered, that there should exist or should have existed a set of circumstances and these circumstances did not exist or had not existed.
The court of Appeal, Criminal Division, so help in a reserved Judgement on a reference by the Attorney-General under section 36 of the Criminal Justice Act 1972 on the following point of law:
“What is required to be proved for an instrument to purport to have been made, so as to establish falsity for the purposes of the Forgery and Counterfeiting Act 1981 and accordingly as to whether or not the tachograph record sheet in the insiant case was capable of being a false instrument.”
Mr Nicholas Hilliard for the Attorney-General: Mr Barnaby Waylen, assigned by the Registrar of Criminal Appeals, for the defendant.
THE LORD CHIEF JUSTICE, giving the judgement of the court said that on March 6, 1998 the defendant coach driver was engaged on a journey from the United Kingdom which involved passing through Belgium.
The record which the tachograph produced indicated that between 16.43 and 17.24 hours he was taking a break from driving as required by law and therefore the vehicle was being driven by another driver. The vehicle was shown to have travelled 11 kilometres during that time.
In fact there was only one driver in the vehicle and accordingly the record was inaccurate. His record showed that he had been having a break, when that was not the case, because of the manner in which he had operated the tachograph.
Either he operated a switch on the tachograph recorder which should only be operated when he was not the driver, or he inserted the disc on which the tachograph was used by a non-driver.
The defendant pleaded not guilty to forgery of a tachograph record sheet contrary to sections 1 and 9 of the 1981 Act. The judge ruled that the defendant’s conduct in producing a false record could not amount to the offence charged. The prosecution then offered no evidence and the jury acquitted the defendant.
Section 9(1)(g) of the 1981 Act dealt with instruments which purported to have been made or altered on a date or at a place “or otherwise in circumstances in which” they were not made or altered.
R v Donnelly Park [1984] [WLR 1017] concerned a written valuation prepared by Donnely of sheduled items of jewellery which stated that he had examined the jewellery and that the figures given represented their insurance value. There was no jewellery to be valued and the valuation was intended to defraud an insurance company.
On the appeal against his conviction for forgery, Donnelly contended that a jewellery certificate was not capable of being a false instrument.
Lord Justive Lawton said (at p-1019): “the words coming at the end of paragraph (g) ‘otherwise ‘in circumstances ** expand its ambit beyond dates and places to any case in which an instrument purports to be made when it was not in fact made.
“This valuation purported to be made after the appellant had examined the items of jewellery set out in the schedule .. That which purported to be a valuation after examination of items was nothing of the kind.”
The approach in Donnelly could be adopted without going so far as to make any instrument which told a lie about some alleged past fact a forgery. It was of the essence of a valuation that the articles, the subject of the valuation, had been examined.
A bona fide valuation required some examination of what was the subject of the valuation. The lie in Donnally, therefore related to an event which must have occured before a genuine valuation could be made.
In R v More ([1987] | WLR 1578, 1585) Lord Ackner said: “It is common ground that the consistent use of the word “porports” in each of the paragraphs (a) to (h) inclusive of section 9(*), imports a requirement that for an instrument to be false it must tell a lie about itself, in the sense that it purports to be made by a person who did not make it, or otherwise purports to be made, in circumstances in which it was not made.”
R v Jeraj ([1994] Crim LR 595) involved a bank officer who wrote a note in which he said that he had received a letter of credit and that he had endorsed it. In fact he had neither seen nor endorsed the letter of credit.
The Court of Appeal, Criminal Division applied Donnelly in dismissing the appeal. Lord Taylor of Gosforth, Lord Chief Justice, indicated that unless he considered that Donnelly was “plainly wrong”, that court would be bound to follow it. He did, however, add that he thought “it was right”.
R v Warneford (The Times May 18, 1994: [1994] Crim LR 753) was decided shortly after Jeraj, but unfortunately, was given in ignorance of the earlier decision.
It involved a mortgage fraud and a letter purporting to be from one Brigdon, the employer of the mortgage applicant Warneford, confirming that Warneford was employed by Brigdon’s company.
In fact the letter was signed by a friend of Warneford’s father, named Maloney. The prosecution did not rely on the fact that the document was signed by Maloney using a false name, but on the fact that he was not the accused’s employer. that was a “circumstance” in which the document on it’s face purported to be made, thus bringing the document within section 9(1)(g).
Mr Justice Lawe in Warnefor* said said that Donnelly could not stand with More. He continued: “To say that the document purported to be a true valuation, but was not, is to urge no more than that it purported to be a true representation of its contents, but was not, it is, in affect to ebrace within the concept of forgery, every document which tells a lie about its subject-matter. That cannot be the right approach. It fails to ask and answer the question whether the document tells a lie about itself.”
If the court in Warneford had been aware of Jeraj, their Lordships doubted wether they would have taken that view as to the correctness of Donnelly.
In view of Jeraj, their Lordshops had come to the conclusion that Donnelly was still binding upon them. Both Donnelly and Jeraj should however be restricted in their application so that they applied, only where circumstances needed to exist before the document could be properly made or adhered.
If th*** circumstances did not exist there would then be a false instrument for the pruposes of section 9(1)(g). If the circumstances did not exist the document was telling a lie about itself because it was saying it was made in circumstances which did not exist.
It followed that Warneford must be regarded as coming to the wrong conclusion on the facts.
In each case where their Lordships would hold the instrument to be false it could not have been made honestly if the circumstances identified did not exist.
Thus in Donnelly you could not make a valuation without having seen the jewellery which you purported to have valued. In Jeraj there had to be a letter of credit which could be endorsed. In Warneford there had to have been relationship of master and servant before you could make a reference as an employer relating to an employee.
The need for the existences of those circumstances prior to the making of the instrument explained why if the circumstances did not exist the document was telling a lie about itself.
Mr Waylen concluded that the position in as far as the defendant was concerned was straightforward. If the record had not been produced by a tachograph disc it would have been written out by the driver and the error would not have been as to the making of the document, but rather as to its contents.
It would contain a lie, namely that there had been another driver, but that would not be referable to the making of the document.
With regard to a document produced by the driver, their Lordships would accept Mr Wavlen’s argument. However, that approach could not be adopted in relation to the document produced in the tachograph.
The tachograph [record?] was produced continuously over the period indicated by the record in so far as the record was being produced while the first driver was shown as driving there was no [delay?] in relation to its making.
It was, however capable of being a false instrument during the period when it showed that the first drive was not driving and that a second driving must therefore have been driving.
To make that part of the instrument, it was essential for there to be a second driver during the period the tachograph was [operated?] in the second driver position.
There was no second driver and therefore the instrument was false.
The circumstance which was false was that the record was being made during a period when there wrongly purported to be a second driver who was driving.
The question ** * by the Attorney-General in the relevance was in very wide terms. ‘[Their?] Lordships were unable to indicate all of the circumstances where falsity for the purposes of the 1981 Act could be established. Their Lordships did, however, give their opinion on the second part of the question.
Their Lordships concluded that in the instant case, the tachograph record sheet was capable of being a false instrument.
Their Lordships had **** in that conclusion because an instrument would be false for the purposes of section 9(1)(g) if it was a document which required, before it could be made or altered that there should exist or should have existed a set of circumstances as did not exist or had not existed.
Solicitors: [Hame Bell & Co. Worcester.?]
This needs further checking and the cases for each area posting with the correct link
The transcript of the text above has been carried out by ” confirm” and the source for this is this post
http://www.getoutofdebtfree.org/forum/viewtopic.php?f=60&t=73992&start=10#p307056