Forgery, Using a False Instrument, Possessing a False Instrument

The image of a forger evokes an individual in a dimly lit back office, meticulously crafting false banknotes or passports. Whilst this can hold true, the reality is that the vast majority of these types of offences are committed by individuals who have little sophistication or grasp of the criminality involved in their actions.

I have represented individuals who have ranged from master forgers who have created millions of pounds’ worth of forged currencies through to those who have changed dates on official documents for seemingly pointless motives. But the legislation is wide in scope and cover even those who, for example, knowing use false tickets to a concert or sports event.

If you are accused of such an offence you should seek specialist advice, as the penalties can be harsh; upon conviction in the Crown Court sentences of imprisonment of up to 10 years can be imposed.

What is forgery?

The definition of forgery is relatively broad and is found within s1 of the Forgery and Counterfeiting Act 1981, which sets out that you are guilty if you:

• make a false instrument
• with the intention that you or any other person will use it to induce somebody to accept it as genuine, and
• by accepting it that other person will be prejudiced.

This is in accordance with the definition contained historically within R. v. Dodge and Harris [1972] 1 Q.B. 416 which states that 

“The essential feature of a false instrument in relation to forgery is that it is an instrument which ‘tells a lie about itself’ in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered."

So an example of making a forgery could be anything from the creation of a forged concert ticket to scanning, manipulating and copying a coffee shop loyalty card.

Copying a false instrument

Forgery and Counterfeiting Act 1981, s.2 makes it offence for someone to 

• make a copy of an instrument
• which is, and which he knows or believes to be, a false instrument,
• with the intention that he or another shall use it to induce somebody to accept it as a copy of a genuine instrument,<
• and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

This offence covers those who do not create but make copies of false instruments. An example of this might be the person who creates copies of a large number of false concert tickets in order to increase the revenue from the original forger but it could go as far as a person who makes a single photocopy of a forged document (with the relevant intent).

Using a false instrument

This offence is contained within Section 3 of the Forgery and Counterfeiting Act 1981. In order to be guilty of such an offence a person must:

• Use an instrument
• which is, and which he knows or believes to be, false,
• with the intention of inducing 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.

So, returning to our example, using false concert tickets would be an example of an offence under this legislation.

 Using a copy of a false instrument

This offence is contained within Section 4 of the Forgery and Counterfeiting Act 1981, and states that it is an offence for someone to:

• use a copy of an instrument
• which is, and which he knows or believes to be, a false instrument,
• with the intention of inducing somebody to accept it as a copy of a genuine instrument, and
• by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

In this circumstance the instrument which is used need not be the original false document, and where multiple copies are made each person who uses one of them in the prescribed circumstances will be guilty of an offence.

False instrument offences refer to “false” instruments and not “forged” instruments. So one may commit an offence even though the instrument and indeed the copy of it were made innocently. This covers a circumstance where the original creation of the document is made with good intentions but the document has then been copied and/or used for nefarious purposes.

What is an ‘instrument’

An instrument is defined within s8(1) of the Act as being

 ‘any document, whether of a formal or informal character’ and includes stamps, post paid stamps, discs, soundtracks but not currency notes.

Commentators have noted that the use of the phrase “Any document” has failed to introduce that clarity into the law due to conflicting authorities on matters such as whether a painting with a false signature could be a forgery. This is a complex area upon which legal advice should be sought.

Knowledge of the false instrument

An essential element of the offence for false instrument charges is that the person using the instrument or copy of the instrument knows or believes that it is false. Without knowledge or belief, the prosecution cannot gain a conviction. Therefore, if an accused person holds an innocent belief that the document in question is genuine this would be a complete defence to the charge.

The intention within the offence

An important factor that one has to bear in mind if accused of an offence under this act is that there has to be a ‘double intent’. That is the offender has to intend two things:

a)      that the false instrument will be used to to get any other person to accept it as genuine, and

b)      that someone, by reason of so accepting it, will be prejudiced by their action or inaction.

Without both these intentions being present the person cannot be convicted of an offence. This applies to the false instrument itself or a copy of it if the forger intends to induce somebody to accept the copy itself as genuine: R. v. Ondhia [1998] 2 Cr.App.R. 150, CA.

The identity of the other person

The words “any other person” cannot refer to the forger himself. The prosecution does not need to prove the the identity of the person intended to be prejudiced as a result of the acceptance by that person or another of the false instrument as genuine, this also applies to the identity of the person who is intended to be induced to accept the instrument as genuine.

Conclusion

Above is a brief summary of what is a very complex area of the law. Each factual scenario may give rise to a number of defences dependant upon the nature of the item produced, copied or used or the intent of the person creating or handling it. If you or someone you know faces potential charges in this area, it is important that you gain specialist legal advice in respect of your case.

Quentin Hunt is a Criminal Barrister who specialises in fraud and counterfeiting cases and has appeared in very high profile cases of this sort and others. Should you wish to consult a legal expert in this area you may contact Quentin for a no obligation conversation about your case.