R v Aworinde

(1995) 159 JP 618

THE CASE AGAINST

On July 18, 1994 before the Crown Court Aworinde, the Appellant was convicted of two offences, first of forging a document with intent to deceive (s.173(1)(a)) and secondly of possessing a document with intent to deceive, (s.173(1)(c)) both contrary to s.173(1) of the Road Traffic Act 1988.

He appealed against conviction on count 2 alone, by leave of the single Judge. His application for leave to appeal against conviction of count 1 was refused and has not been renewed, so the court did not have to consider that conviction.

THE FACTS

THE FACTS, taken from the judgment of Mr Justice Tucker were that in December 5, 1993 police officers had a search warrant, and armed with it they went to Aworinde's house in London. Aworinde answered the door. The object of the search was to look for stolen insurance certificates.

In the front room of the premises was found a completed insurance certificate. It bore the number 305790, which may be of some relevance. It was purportedly issued by Fleet Motor Policies at Lloyds. That formed the subject matter of count 1.

When he was asked where he had got it from Aworinde said: "From an insurance company." In a briefcase in a bedroom was found a pad of Fleet motor policies. It is relevant to observe that the numbers ran from 305799 (that is to say, nine beyond the certificate which had been found) to 305871.

That pad of blank policies of certificates formed the subject matter of count 2. It was not disputed at trial that both the completed certificates and the pad of blank certificates were bogus, and also that upon that pad were Aworinde's fingerprints. At the close of the prosecution case submissions of no case to answer were made in relation to both counts.

Counsel for Aworinde argued so far as count 2 was concerned that the prosecution had to show an intent to deceive, and that until a form had been completed such an intent could not be established, since nobody could be deceived for the purposes of the Act by a blank form. Counsel for the Crown, on the other hand, submitted that the forms were such that the intention to deceive could be inferred from possession of them. The defence submissions were rejected and the trial proceeded.

Aworinde gave evidence on his own behalf. he said that the pad of forms had been found earlier under a telephone book in some premises in which he was then living with his girlfriend, and when they moved from those premises the girlfriend packed up the pad of forms with all the other possessions. He said he did not know it was at the new premises. They moved again, and apparently the forms moved with them. He said he had no intention of deceiving anyone. All he knew was that the pad was in the house when the police searched it, and that it must have been taken to that address by mistake. he said he had thought of disposing of it, but he did not know how to do so.

We are no longer concerned with the completed insurance certificate, though we note that his defence was that it had been filled in "as a lark", as he put it, by a friend of his.

It is important to see how the indictment was framed. So far as count 2 is concerned, the statement of offence is

"Possession a document with intent to deceive contrary to

s.173(1) of the Road Traffic Act 1988."

The Particulars of offence make interesting reading. They charge that the defendant on December 5, 1993" (that was the date of the police search):

"With intent to deceive had in his possession of documents

so closely resembling a document issued under Regulations

made by made by virtue of the power under para.(1) of

s.165(2)(a) of the Road Traffic Act 1988 as to be calculated

to deceive." This is the section that empowers constables to obtain names and addresses and to require production of insurance.

GROUNDS OF THE APPEAL

The grounds of appeal are that the offence charged related to a document issued under the regulations which have been referred to; that the regulations or the section under which they were made refers to a relevant certificate of insurance, that is to say, one which has to be produced to a police constable by the owner of the vehicle; and that a blank or blank forms of insurance certificate cannot bear that description.

When we came to examine this appeal it seemed that the prosecution case throughout had been that this blank pad of forms related to and was always intended to relate to a certificate of insurance, in other words that the offence was charged under s.173(1)(c), that is, that the defendant with intent to deceive had in his possession a document so closely resembling a document to which the section applies as to be calculated to deceive, and the document in particular to which the section applied was under subs.(2)(h), that is to say "any certificate of insurance"

It is unfortunate, in our view, that the particulars of offence were drafted in the way they were. The count could have been more clearly and simply charged.

The question for our consideration is whether a pad of blank forms of certificates of insurance, albeit admittedly false or bogus, constituted documents so closely resembling any certificate of insurance as to be calculated to deceive. We are no longer concerned with documents issued under regulations, which may require different considerations. Can blank forms such as these constitute such documents? They do not, of course, specify any vehicle to which they relate; nor do they specify the dates between which the insurance cover is to operate. They are completely blank in those respects.

In relation to a test certificate, it was held by this court in the case of R. v. Pilditch [1981] R.T.R. at p.303 that the words "test certificate" are apt and sufficient to include such a form even before it is completed. This was the point taken in the present case on the submission of no case to answer. That submission having been rejected, it was not thereafter a point which was raised before the jury, having been dealt with by the learned trial judge as a point of law.

The next question is whether these forms so closely resembled any certificate of insurance as to be calculated to deceive. It has to be clearly borne in mind that the offence charged required the word "deceive" to be considered in two respects. It had to be established by the prosecution first that Aworinde had the documents in his possession with intent to deceive and, second, that the documents themselves so closely resembled the genuine article as to be calculated to deceive. This distinction was not, unfortunately, drawn in the summing-up.

We see how the leaned Judge put it:

Counsel for Aworinde specifically acknowledges that it was never part of his case, nor was it challenged, that if these documents had been completed they would have had the propensity to deceive; they would have been calculated to deceive. In particular the jury were not given a direction on the meaning of the phrase "calculated to deceive"

It has been held by this court in the case of R v. Davison [1972] 1 W.L.R. at p.1540 that the words do not mean "intended to deceive" but "likely to deceive", though in a different context to the present. (A case decided under the House to House Collections Act 1939).

It may be that there can be no doubt at all that if these bogus forms had been completed they would so closely have resembled a certificate of insurance that they would have been likely to deceive anyone to whom they were produced. But such a person as a police constable requiring to see a certificate of insurance is not the only person who might be likely to be deceived by these false forms.

The question to which we return is whether these blank, bogus forms can be so described in the absence of any words upon them relating them to any specific vehicle or period of insurance. In addition to a Police officer who may have legitimate reason for examining certificates of insurance these forms might very well be likely to deceive anyone seeking insurance cover for his of her motor vehicle and in that sense if these forms were produced to such a person they would clearly in our view be likely to deceive. In that sense it seems to us clear that forms such as these, albeit blank, can constitute forms within s.173(1)(c). They are, in the opinion of this court, documents so closely resembling any certificate of insurance as to be calculated, in the sense of likely to, deceive.

This appeal was dismissed.

COMMENT

Insurance fraud is a very serious matter, the Association of British Insurance (ABI) estimated that fraudulent claims totalled £400 Million in 1991. About 2% of claims were believed to be bogus and about 10% were thought to be inflated by dishonest policyholders.

That is one aspect of insurance fraud: this case concerns another feature, that of writing out your own policy, writing it out "for a lark" must be about the most pathetic excuse tried; it is good to see a jury were not taken in by that one.

Having no insurance and the offences under s.173 (previously s.169 R.T.A. 1972) have to be taken as some of the most serious offences on (and off) the road. In R v Pilditch, supra, the court held that the statute had to be construed so as to give a sensible and unstrained meaning to all the words, including the work,'forges'. The claim in Pilditch, which also failed, had been that a test certificate form became a "test certificate" only when duly authorised examiner certified it.

There is a simple approach which accords with the courts "sensible and unstrained meaning" - if the document is a real document, of a type covered by the section, the offence is one under s.137(1)(a), if, however, it is a complete forgery, but intended to look like an authentic document, the offence is under s.173(1)(c).

Rob Jerrard