Advanced Search

CPS Public Consultations

We want to hear your views about our prosecution policy and so we conduct consultations to help inform our policy making.

Visit the consultations page to view the current and previous consultations

Forgery and Counterfeiting

The Law

Forgery and Counterfeiting Act 1981 creates some commonly used offences:

  • Section 1 - Forgery - making a false instrument (Archbold 22-5). 
  • Section 2 - Copying a false instrument (Archbold 22-25).
  • Section 3 - Using a false instrument (Archbold 22-26).
  • Section 4 - Using a copy of a false instrument (Archbold 22-30).
  • Section 5 - Custody or control of false instruments and manufacture, custody, or control of equipment or materials to make them (Archbold 22-31).

Top of page

Definitions

  • "instrument" (Archbold 22-10),
  • "false" and "making" (Archbold 22-17) (Attorney-General's Reference No. 1 of 2000 Re, sub nom R v J T [2001] 1 Cr. App. R. 15 CA), and
  • "prejudice" and "induce" (Archbold 22-22).

Top of page

Jurisdiction

We can prosecute for certain offences if a "relevant event" occurred in England or Wales - Criminal Justice Act 1993 Part 1 (Archbold 2-37) (Home Office Circular 19/1999). This includes sections 1 to 5 of the Forgery and Counterfeiting Act 1981, an offence under section 25 Identity Cards Act and sections 4, 5 and 6 Identity Documents Act 2010. This applies whether or not the defendant was in England or Wales at any material time, and whether or not he was a British citizen at any such time (Archbold 2-44).

Top of page

Offences of Forgery of Specific Items

  • Registers of births, marriages & deaths etc - section 8 Non-parochial Registers Act 1840 (Archbold 22-39), and sections 36 and 37 Forgery Act 1861 (Archbold 22-41).
  • Passports - section 36 Criminal Justice Act 1925 (Archbold 22-46).
  • Judicial Documents - section 133 County Courts Act 1984 (Archbold 22-48).
  • Dies and stamps - section 13 Stamp Duties Management Act 1891(Archbold 22-50).
  • Land Registration - sections 115 to 117 Land Registration Act 1925.
  • Statutes and executive documents - section 4 Evidence Act 1845, section 4(1) Documentary Evidence Act 1868, section 3 Documentary Evidence Act 1882.
  • Hallmarks - section 6 Hallmarking Act 1973 (Archbold 22-56).
  • Road Traffic Documents and Licences - section 173 Road Traffic Act 1973 (Archbold 32-226), and section 44 Vehicle Excise and Registration Act 1994 (Archbold 32-233).

Top of page

Identity Cards Act 2006

Section 25 of the Identity Cards Act 2006 came into force on the 7 June 2006 but is repealed as of 21 January 2011 and substituted by offences in sections 4, 5 and 6 of the Identity Documents Act 2010. Where evidence supports a possession offence prior to the 21 January, then offences should be charged under the 2006 Act.

Section 25 of the 2006 Act is designed to tackle the misuse of identity documents referred to in section 26.

Top of page

Offences under the Identity Cards Act 2006

Section 25(1) creates an offence for a person to be in possession of a document which he knows or believes to be false or a genuine document that has been improperly obtained or intention that the document be used for identity fraud by establishing registrable facts. (subsection 2).

Section 25(3) creates an offence for a person to be in possession or have under his control, equipment which is designed or adapted for making false identity documents. Both these offences are triable only on indictment and carry a maximum sentence of 10 years' imprisonment or a fine or both (subsection 6).

Section 25(5) creates an offence for a person to have in his possession, without reasonable excuse, one of the following: a false identity document; or an identity document that has been improperly obtained; or an identity document that relates to someone else, or equipment used for making false identity documents. This is an either-way offence which carries on indictment two years' imprisonment or summarily the statutory maximum. The meaning of 'false' has the same meaning as in section 9 of the Forgery and Counterfeiting Act 1981. (Archbold 22-45a.)

Section 26 defines what is meant by an "identity document". This includes documents that already exist such as passports, driving licences, immigration documents such as visas, as well as other existing identity documents issued within or outside the UK. (Archbold 22-45b.)

Top of page

Identity Documents Act 2010

The Identity Documents Act came into force on 21 January 2011 and repealed sections 25 and 26 of the Identity Cards Act 2006 with effect from that date.

Section 4(1) replaces section 25(1) of the Identity Cards Act 2006 and creates an offence for a person (P) with an improper intention to have in their possession or under their control:

(a) an identity document that is false and that P knows or believes to be false
(b) an identity document that was improperly obtained and that P knows or believes to have been improperly obtained, or
(c) an identity document that relates to someone else.

Section 5(1) replaces section 25(3) of the Identity Cards Act 2006 and creates an offence for a person with prohibited intention to make or have in their possession or under their control:

(a) any apparatus which to their knowledge is or has been specifically designed or adapted for the making of false identity documents; or
(b) any article or material which, to their knowledge, is or has been specifically designed or adapted to be used in the making of such documents.

Apparatus is defined in section 9 of the Act.

Both these offences are triable only on indictment and carry a maximum sentence of 10 years' imprisonment or a fine or both

Section 6(1) replaces section 25(5) of the Identity Cards Act 2006 and creates an offence for a person without reasonable excuse to have in their possession or under their control:

(a) an identity document that is false,
(b) an identity document that was improperly obtained, or
(c) an identity document that relates to someone else.

This is an either-way offence which carries on indictment two years' imprisonment or summarily the statutory maximum.

Section 7 defines what is meant by identity document and includes an immigration document, a United Kingdom passport or a passport issued by or on behalf of authorities outside the UK, a document which can be used instead of a passport or a driving licence issued in or outside the UK.

Top of page

Statutory Defence - Section 31 of the Immigration and Asylum Act 1999

Possible Defence for Asylum Claimants

Section 31 Immigration and Asylum Act 1999 creates a statutory defence to offences of travelling on false documents for a refugee claiming asylum (Archbold 25-228d). The offences to which this defence applies in this section are any offence, or any attempt to commit an offence, under:

  • Part 1 of the Forgery and Counterfeiting Act 1981 (forgery and connected offences);
  • Sections 25(1) and (5) of the Identity Cards Act 2006 (possession of false identity documents)
  • Sections 4(1) and 6(1) of the Identity Documents Act 2010 (replacing the above offences under the Identity Cards Act 2006)

The defence is based on Article 31(1) of the 1951 UN Convention Relating to the Status of Refugees (the Refugee Convention). For guidance on interpretation see (R v Uxbridge Magistrates' Court and another, ex p. Adimi; R v CPS, ex p. Sorani; R v Secretary of State for the Home Department, ex p. Sorani; R v Secretary of State for the Home Department and another, ex p. Kaziu (2000) 3 W.L.R. 434 DC), and Archbold 25-228e.

Prosecutors should consider whether accounts given by asylum seekers could give rise to a defence; the position is sometimes not properly assessed until the point at which an appeal is being considered. In R v AM, MV, RM and MN [2011] 1 Cr App R 35  the appellants appealed their convictions under the Identity Cards Act on the basis that they had not received advice and/or on the merits the section 31 defence rendered their convictions unsafe. The Court indicated that those advising a defendant charged with an offence to which the defence provided for by section 31 applies must make clear the parameters of the defence, so that the defendant can make an informed choice as to whether to seek to advance it.

The same principle should apply to offences under the Identity Documents Act 2010

When such a defence is likely to be raised, the police should be requested to obtain evidence from the UK Border Agency and the Home Office to establish the situation on refugee status and asylum claim.

Further information on Section 31 of the Immigration and Asylum Act 1999 can be found in Immigration, elsewhere in the Legal Guidance.

Top of page