Forgery and Counterfeiting

updated 11 November 2019|Legal Guidance, Fraud and economic crime

The Law

The Forgery and Counterfeiting Act 1981 creates the following commonly used offences:

  • Section 1 - Forgery - making a false instrument.
  • Section 2 - Copying a false instrument.
  • Section 3 - Using a false instrument.
  • Section 4 - Using a copy of a false instrument.
  • Section 5 - Custody or control of false instruments (purporting to be money orders, share certificates, passports, traveller’s cheques, credit cards, debit cards, credit cards, birth etc. certificates, etc.) and manufacture, custody, or control of equipment or materials to make them.

In addition to the above other offences, are also created within the act.

  • Section 14 - offences concerning counterfeiting notes and coins.
  • Section 15 - offences of passing counterfeit notes and coins.
  • Section 16 - offences involving the custody or control of counterfeit notes and coins.
  • Section 17 - offences involving the making or custody or control of counterfeiting materials and implements.
  • Section 20 – the prohibition of importation of counterfeit notes and coins.
  • Section 21 – the prohibition of exportation of counterfeit notes and coins.

Definitions

False instrument

Section 1 Forgery Act 1981 states:

A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.”

It must be shown that D intended for the false instrument it be used to induce somebody to accept it as genuine and, by reason of so accepting it, to do or not to do some act to his own or another’s prejudice: R. v. Mary Sylvia Campbell (1985) 80 Cr.App.R. 47, CA.

An intention to induce another to accept a copy of a forgery will also suffices: R v Ondhia (1998) 2 Cr.App.R 150 CA

"Instrument" - the definition for instrument is found at section 8 Forgery and Counterfeiting Act 1981

Instrument includes any document, postage stamp (or mark denoting payment) , Inland Revenue stamp, disk tape, sound track or other device on which information is stored by any means. It does not include a currency note (see offences under sections 14, 16, 17, 20 and 21 Forgery and Counterfeiting Act 1981).

"False"

False is defined at section 9 Forgery and Counterfeiting Act 1981, and covers a range of scenarios as to when a document can be false.

It states that a document can be deemed as being false when it purports to have been made in a form or on terms or altered by a person who did not in fact make it in such a form or in such terms or so altered it, or who did not authorise its making in that form or on those terms or so altered.

Further it is false if it was not in fact made on the date, place or in the circumstances that it purports or purports to have been made or altered by a person who did not in fact exist

An instrument is false if it is altered so as to make it false in any respect - Section 9 Forgery and Counterfeiting Act 1981.

Case law indicates difficulties with the creation of documents which made a false representation, such as a tachograph, but were not forgeries in themselves in that the record had been generated but a lie arose from another relevant fact that affected the way in which the document was viewed. The Court of Appeal has reached apparently inconsistent conclusions on this point on particular facts - Att. Gen. Reference (No.1) of 2000 (2001) 1.Cr.App.R. 15 CA.

"Prejudice and Induce"

Prejudice and induce are defined in Section 10 Forgery and Counterfeiting Act 1981 as:

Something which results in temporary or permanent loss of property, deprives another of the opportunity to obtain remuneration or greater remuneration or financial advantage or the opportunity to perform any duty.

Jurisdiction

Offences under sections 1 to 5 of the Forgery and Counterfeiting Act 1981, are Group A offences and we can prosecute if a "relevant event" occurred in England or Wales - see Criminal Justice Act 1993 Part 1.

This applies whether or not the defendant was in England or Wales at any material time, and whether or not they were a British citizen at any such time. Conspiracies relating to these offences are Group B offences.

Counterfeiting

Section 14 Forgery and Counterfeiting Act 1981 states:-

(1) It is an offence for a person to make a counterfeit of a currency note or of a protected coin, intending that they or another shall pass or tender it as genuine.

(2) It is an offence for a person to make a counterfeit of a currency note or of a protected coin without lawful authority or excuse

Section 15 Forgery and Counterfeiting Act 1981 likewise makes it an offence to knowingly or believing it to be counterfeit (1) pass or tender it as genuine or (2) deliver to another such a counterfeit note or protected coin.

Section 16 Forgery and Counterfeiting Act 1981 further makes it an offence to (1) have custody or control of such a counterfeit note or protected coin intending to pass or tender it as genuine or (2) have possession of the same.

Section 17 Forgery and Counterfeiting Act 1981 makes it an offence to (1) have custody or control of anything intending to or allowing any person to use it to make a counterfeit of a currency note or protected coin, intending to pass it as genuine or (2) make or have anything designed or adapted to make a counterfeit of a currency note or (3) make or have any implement to his knowledge capable of imparting to anything the resemblance of a protected coin or its reversed image.

Section 18 Forgery and Counterfeiting Act 1981 makes it an offence to reproduce a British currency note or part of one.

Section 19 Forgery and Counterfeiting Act 1981 makes it an offence to make or sell or distribute or have custody or control of imitation British coins within a scheme for goods and services.

Section 20 Forgery and Counterfeiting Act 1981 prohibits the importation of a counterfeit note or protected coin.

Section 21 Forgery and Counterfeiting Act 1981 prohibits the exportation of a counterfeit note or protected coin.

"Passing" or "tendering" is not confined to passing or tendering as legal tender: section 14(3) Forgery and Counterfeiting Act 1981.

Counterfeits - defence

Section 17 (3) it is a defence within the Act if the written permission of the Treasury or other lawful authority has been obtained or there is a lawful excuse.

Section 18 it is a defence within the Act if the written permission of the relevant issuing authority has been obtained.

Sections 19, 20 and 21 it is a defence within the Act if the written permission of the Treasury has been obtained.

Sentence

Offences under sections 1 - 4 and section 5(1) and 5(3) Forgery and Counterfeiting Act 1981 are either way maximum 10 years' imprisonment or fine or both.

Section 5(2) Forgery Act 1981 either way maximum two years' imprisonment or fine or both.

Offences under sections 14(1), 15(1), 16(1) and 17(1) Forgery and Counterfeiting Act 1981 are either way maximum 10 years' imprisonment or fine or both.

Offences under sections 14(2), 15(2), 16(2), 17(2) and 17(3) Forgery and Counterfeiting Act 1981 are either way maximum seven years' imprisonment or fine or both.

Offences under section 18 and 19 Forgery and Counterfeiting Act 1981 are not specifically provided for however section 18 would be analogous to section 14(2) and section 19 may be analogous to other offences listed above.

Offences under section 20 and 21 Forgery and Counterfeiting Act 1981 are charged contrary to section 170(1)(b) and (3) Customs and Excise Management Act 1979 as either way offences maximum sentence seven years' imprisonment fine or both.

Sections 14, 15, 16 and 17 Forgery and Counterfeiting Act 1981 and section 170 Customs and Excise Management Act 1979 are offences for which a Serious Crime Prevention Order under Schedule 1 of the Serious Crime Act 2007 may be imposed on conviction.

Sections 14, 15, 16 and 17 Forgery and Counterfeiting Act 1981 are lifestyle offences for the purposes of confiscation of criminal property under section 75 and Schedule 2 Proceeds of Crime Act 2002

Other offences of Forgery

Various Acts create offences involving forgery;

  • Registers of births, marriages & deaths etc. - section 8 Non-Parochial Registers Act 1840 and sections 36 and 37 Forgery Act 1861.
  • Passports - section 36 Criminal Justice Act 1925.
  • Court documents and authority - sections 133 and 135 County Courts Act 1984.
  • Dies and stamps - section 13 Stamp Duties Management Act 1891.
  • 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.
  • Supply of equipment to forge currency, identity document, entry documents etc. - Specialist Printing Equipment and Materials (Offences) Act 2015.
  • Forgery and false statements under s 126 Mental Health Act 1983.
  • Road Traffic Documents and Licenses - section 173 Road Traffic Act 1973 and section 44 Vehicle Excise and Registration Act 1994.

Identity Cards Act 2006

Section 25 of the Identity Cards Act 2006, in force from 7 June 2006 and was repealed on 21 January 2011. For offences after the 2006 Act, see the Identity Documents Act 2010.

Offences under the Identity Cards Act 2006

Section 25(1) - creates an offence for a person intending to use a document to establish registrable facts about themselves or to allow or induce another to establish/ ascertain/ verify registrable facts about him or another (s 25(2)), to have in his possession or control:-

  • a false identity document, knowing or believing it is false or;
  • an improperly obtained identity document knowing or believing it to be so obtained or;
  • an identity document belonging to someone else.

Section 25(3) creates an offence for a person intending that they or another will make identity documents or somebody will use the document for establishing etc. registrable facts about a person (s 25(4)), to have in his possession or control:-

  • Apparatus or any article or material to his knowledge designed or adapted for making false documents.

Section 25(5) creates an offence for a person to possess or control without reasonable excuse; A false identity document, an improperly obtained identity document, some else’s identity document, or any apparatus, article or material to his knowledge designed or adapted for making false identity documents.

Section 26 defines an identity document and includes;

  • A designated document
  • An immigration document
  • A passport
  • A document in use instead of a passport
  • A driving license

Sections 25(1) and (3) indictable only 10 years' maximum imprisonment or fine or both

Section 25(5) either way, maximum two years' imprisonment or fine or both.

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.

The principal amendment is the reference to the narrower defined "personal information" rather than "registrable facts".

The IDA 2010 provisions are largely the same as the ICA 2006 Act.

Possession with intent, 2010 Act.

Section 4(1) - replaces s.25(1) of the Identity Cards Act 2006. It creates an offence for a person with an improper intent to be in possession or control of an identity document which (a) is false and they know or believe to be false or (b) was improperly obtained knowing or believing the same or (c) an identity document that relates to someone else.

"Improper intent" is defined at section 4(2) as intending to establish personal information about himself or intending to allow or induce another to use it to verify personal information about himself or another.

Section 5(1) replaces s.25 (3) of the Identity Card Act 2010. It creates an offence for a person with prohibited intent to make or possess or control, apparatus or any article or material to his knowledge designed or adapted for making false identity documents.

"Prohibited intention" is defined at section 5(2) as an intention that they or another will make a false identity document or that the document will be used by somebody to establish/ ascertain/ verify personal information about a person.

Ss. 4(1) and 5(1) indictable only 10 years' maximum imprisonment or fine or both.

Section 6(1) replaces s.25(5) of the Identity Card Act 2010 and creates an offence for a person without reasonable excuse to have in his possession or control:-

  • a false identity document
  • an improperly obtained identity document
  • someone else's identity document
  • apparatus or any article or material to his knowledge designed or adapted for making false identity documents.

Section 6(1) either way, maximum two years' imprisonment or fine or both.

"Apparatus" is defined in section 9 of the Act.

"Identity document" defined at section 7 Identity Documents Act 2010 and includes

  • An immigration document
  • A passport
  • A document in use instead of a passport
  • A driving license

"Personal information" is defined at section 8 Identity Documents Act 2010 to be an individual's:-

  • Full / other names
  • Gender
  • Date and place of birth
  • Identifying characteristics
  • Address of residence (present and past)
  • Periods of residence
  • Residential status (present and past) i.e. nationality, entitlement to remain in the UK, status of such entitlement.
  • Identification numbers allocated/ identification documents allocated.

Jurisdiction

Offences under section 25 Identity Cards Act and sections 4, 5 and 6 Identity Documents Act 2010 are Group A offences and prosecutors can prosecute if a "relevant event" occurred in England or Wales - see Criminal Justice Act 1993 Part 1. This applies whether or not the defendant was in England or Wales at any material time, and whether or not they were a British citizen at any such time. Conspiracies relating to these offences are Group B offences.

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. 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 (note now repealed however applied prior to the repeal of the 2006 Act).
  • Sections 4(1) and 6(1) Identity Documents Act 2010 (replacing the above offences under the Identity Card Act 2006)

The defence applies where:-

  • A refugees coming to the UK directly from a country where his life or freedom was threatened or if coming through a transit country can show he could not reasonably be expected to have been given protection under the Convention.
  • Presented himself to the UK authorities without delay
  • Showed good cause for his illegal entry or presence
  • Made a claim for asylum as soon as reasonably practicable after arrival in the UK.

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 (2001) Q.B. 667; 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).

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 Abdala Mohamed and others [2011] 1 Cr App R 35 four appellants appealed their convictions under the Identity Cards Act following legal advice and guilty pleas on the basis that they had not received proper advice on the available defence 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. Three out the four appeals were successful.

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.

Further reading