R v Kozhem Nawzad Noori

This is an appeal against sentence brought with the leave of the single judge.

The appellant, Kozhem Nawzad Noori is now 29 years old. On 11 August 2025, in the Crown Court at Leicester before His Honour Judge Keith Raynor, he pleaded guilty to one offence of possession of an identity document with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010. He was sentenced to 15 months' imprisonment. A statutory surcharge was imposed, and the judge made a recommendation for deportation.

The grounds of appeal which have been attractively advanced on behalf of the appellant by Mr Latif in both writing and orally before us today are essentially in three parts. First, it is submitted that the judge took a starting point, before adjusting for aggravating and mitigating features and for the plea of guilty, which was out of line with a sentencing level which can be derived from a series of previous decisions of this court and was too high.

Secondly, it is submitted that the judge erred in failing to make any or any sufficient downwards adjustment in the length of that sentence because of the appellant's good character and family circumstances.

Finally, it is submitted that the judge gave 25 per cent credit for the guilty plea when in fact, because of events which had taken place in the magistrates' court, he should have given him full credit, that is to say a discount of one third.

The facts of the offence are as follows. On 13 May 2024, Border Force officers intercepted a package which had been sent from Greece to a shop at which the appellant was in the habit of working. The package contained a Greek driving licence, which was a forgery. It was in the name of Kozhin Noori, but it contained the appellant's accurate date of birth. It appears that he is in the habit of using a number of different but similar names, although he always uses his own date of birth.

Enquiries were undertaken, and it was established that the forged Greek driving licence had been sent by someone in Athens who had forged it on the instructions of the appellant. This is clear because the photograph that was used on the driving licence was a photograph which was later found on his phone and which had clearly been supplied by him to the forger for that purpose.

Having made these enquiries, Border Force officers attended at the shop in Leicester to which the package had been addressed. The owner of the shop told them that it was the only time that the appellant had served behind the counter when they found him there. This was untrue. Information on the appellant's phone showed that he had been involved in the business of that shop over a period of time and, it is to be inferred as well from the fact that he used its address as his own address for the purposes of receiving this forgery, that it was a place which he frequented.

The appellant is an Iraqi national. He entered the United Kingdom illegally in 2021 and then claimed asylum. He sought and was granted limited permission to work in 2023. He was required to work in a restricted category of jobs, namely jobs where labour is in short supply in this country. He was also required to live in Birmingham. By living and working in Leicester and working in the shop, he was breaking those rules.

His asylum application was refused in March 2024. An appeal was lodged. It is uncertain what the fate of that appeal has been. The judge was told that it had been heard in July 2025 and that a decision from the Tribunal was expected shortly. Mr Latif tells us that on his instructions from the appellant the appeal has not yet been determined.

We deal with two additional matters before moving to the submissions in relation to the length of the prison sentence.

The first is that the proceedings in the magistrates' court were somewhat confused. It appears that a postal requisition was sent, charging the appellant with the offence of possession of an identity document with improper intention on 9 June 2025. This may have been in the wrong form. It suggests that the charge could be dealt with under the single justice procedure and invites the person to whom it is addressed (the appellant) to plead guilty by post if he wished to do so. That, of course, was wholly inappropriate to an indictable only offence of this kind. The appropriate form was the issue of a written charge and a requisition under section 29 of the Criminal Justice Act 2003 which required the appellant to attend court. However, the appellant appears to have responded to that notice by indicating at an even earlier stage that the guideline identifies as the first possible stage, that he intended to plead guilty to the charge. He failed to appear in person at the magistrates' court, no doubt because he had given that indication in response to the single justice procedure notice, which did not require him to attend at court. He was, however, before that court on the following day, 26 June 2025, and sent for trial.

There is no Better Case Management Form, so far as we are aware, in which the magistrates record anything which occurred before them in relation to an indication as to the plea which the appellant intended to enter. The judge was aware of this, but held that in the absence of a Better Case Management Form indicating an unequivocal intention to enter a guilty plea as having been communicated to the magistrates, he intended to deal with the plea as having been entered after the first opportunity, and therefore one which was entitled to only 25 per cent credit. We shall return to the significance of this at the conclusion of this judgment.

Secondly, as we have said, the judge made a recommendation for deportation. The power to make such a recommendation is contained in section 6 of the Immigration Act 1971, section 6(2) of which provides:

It has been confirmed to this court that no such notice was served on the appellant before the judge made his recommendation for deportation. It is, in our judgment, plain on the authorities that the absence of such a notice does not in itself invalidate the deportation recommendation. That is the effect of the decision of this court in R v Abdi [2007] EWCA Crim 1913; [2008] 2 Cr App R(S) 87. That court held, applying the principles in R v Soneji [2006] 1 Cr App R(S) 179, that in a case involving a failure to comply with a statutory procedural requirement, the court is required to construe that statute to determine what the consequences of that failure should be. These principles were reaffirmed by the Supreme Court in R v Layden [2025] UKSC 12. Only if Parliament is taken to have intended that the consequences of such a failure should be the invalidity of all that follows will the court so hold. The court held that in the circumstances of this requirement for a notice under section 6 of the 1971 Act a deportation recommendation was not necessarily unlawful, but that it was necessary to consider the circumstances in order to determine whether any prejudice had accrued to the person who was the subject of the deportation order. The purpose of the statute is to ensure that British citizens are not deported from the United Kingdom where they have a right to be. The notice informs the person receiving it of this proposition of law so that they can, if they wish, assert their status as a British citizen in order to avoid any deportation.

The appellant is, of course, not a British citizen. He is an Iraqi asylum seeker whose claim for asylum, which he himself has advanced, would be wholly invalidated by its lack of necessity if he were in fact a citizen of the United Kingdom. Therefore, there can be no possible prejudice to him as a result of the absence of this notice; and we would not invalidate the judge's order simply on that ground.

The judge gave clear sentencing remarks. He first concluded, in a decision which Mr Latif criticises, that a pre-sentence report was unnecessary. The decision was consistent with his approach, which was that an immediate custodial sentence for an offence of this seriousness was inevitable; and moreover that, given the circumstances in which the appellant was living at the time when he committed the offence, namely in breach of the rules which governed his presence in the United Kingdom as an asylum seeker, his personal circumstances and lack of previous convictions were of very limited relevance to the sentencing exercise.

Having arrived at that decision, the judge recorded the appellant's immigration history, which we have already rehearsed. He then set out the facts and referred to the absence of sentencing guidelines. There was at one stage a suggestion that the judge ought to have paid some regard to a draft sentencing guideline which has been issued for consultation by the Sentencing Council. That contention has sensibly not been advanced orally before us by Mr Latif because it is wholly without merit. There is very clear authority from this court, and also from the Sentencing Council, that draft guidelines are issued for the purpose of consultation and are of no significance at all in any sentencing exercise which may take place before a guideline becomes a definitive guideline Any other approach would make a nonsense of the consultation process and the decision making process which results in guidelines becoming definitive guidelines. We do not need to say anything more about that draft.

The judge then moved to consider two previous decisions of this court, which he had found and which are referred to in Banks on Sentencing, Volume 2, at paragraphs 280.5 and 280.6. These were R v Ovieriakhi [2009] EWCA Crim 452 and R v Lasgaa [2014] EWCA Crim 1822. The judge decided, he said, that he would take a lower starting point than had been taken by the court in Lasgaa, namely a starting point of 20 months' imprisonment. He said nothing further about the decision in Ovieriakhi and did not refer to any other authorities. We shall come back to that.

Having taken the starting point of 20 months' imprisonment, the judge identified that there was no real mitigation in the case and no aggravating features either. He therefore remained at a sentence of 20 months before moving to the appropriate discount for the plea of guilty. We have dealt with the way he approached that already. A deduction of 25 per cent from 20 months resulted in the sentence of 15 months' imprisonment. The judge then proceeded to make the deportation order.

We should first deal with the previous decisions of this court which, in our judgment, are material to determining sentences in this kind of case. They begin with the decision in R v Kolawole [2004] EWCA Crim 3047. That decision was applied, with some qualifications, by a constitution of this court presided over by the then Lord Chief Justice in Ovieriakhi (one of the cases to which the judge referred). That case was decided in 2009.

The next case to which the judge referred was Lasgaa (decided in 2014). In Lasgaa at [9] the court set out, with approval, a submission which was made by counsel. This established that:

The two further cases which we should mention, and which were not drawn to the judge's attention, are R v Acheampong [2015] EWCA Crim 1894, and R v Aderemi [2018] EWCA Crim 1502. At [14] to [16] in Aderemi the court said:

It is also worth observing that in [19] in Aderemi the court decided that it would not exercise its power to recommend deportation in that case. It did that on the basis that deportation decisions involve consideration of material going well beyond that which is available to a criminal sentencing court. Such decisions are therefore better taken, except in the clearest possible case, by the Home Secretary and, in the event of appeal, by the First Tier Tribunal and the Upper Tier Tribunal.

The range of sentences which can be derived from the authorities to which we have referred suggests that in case where the identity document is simply used for the purposes of obtaining work, rather than obtaining access to the United Kingdom itself, the case is likely to be treated less severely than otherwise. Sentences of around 12 months' imprisonment, before any appropriate deductions required by the facts of the case, appear in those decisions. The judge's sentence of 20 months' imprisonment is significantly in excess of that level. He justified that approach principally by reference to the need for sentences to contain a deterrent element in order to lend teeth to the rules which govern the conduct of asylum seekers while they are in this country and also to discourage illegal entry and presence in the United Kingdom. The question we have to decide is whether the circumstances of this case entitled him to take that approach.

This was a serious case of its kind. The driving licence which was obtained was obtained by a sophisticated method. It was made to order by a foreign forger. It is also relevant that it was a driving licence. It was intended to enable a person who is not allowed to drive on the public roads in this country to do so. If the appellant is in fact an incompetent and unsafe driver, that creates a risk to public safety. That is an aggravating feature. His motive in seeking this driving licence, it appears, was to enable him to access types of employment which are presently denied to him by the rules of the asylum system.

We consider that the judge's approach to good character and personal mitigation in these circumstances was justifiable. If a person is living a life which is in breach of significant rules by which they are bound, while present and seeking asylum in this country, good character is of very limited relevance. We consider that the judge was entitled to reflect the need for deterrence in the conditions of the United Kingdom as it is at the time when he was passing sentence, that is to say in 2025.

The most recent of the decisions to which we have referred is dated back to 2018. It is a matter of public record that the asylum system is now under very much greater pressure in this country than it was then. That means that the enforcement of the rules of that asylum system is a matter of even greater public significance than it was in 2018. We therefore consider that sentencing courts are not required to consider themselves bound by the sentencing levels which were thought appropriate before the current crisis escalated to the extent to which it has. The judge was right to conclude that one of the purposes of sentencing contained in section 57(2) of the Sentencing Act 2020, the reduction of crime (including its reduction by deterrence), has assumed greater salience in recent years and sentencing levels should reflect that. There will continue to be cases where those lower sentences are appropriate, but higher levels should be, and are, available for serious cases such as the present.

Having reached that judgment, we have removed the central plank of Mr Latif's appeal as to the length of the term of imprisonment which was imposed in this case. We consider that, having regard to the aggravating factors which we have set out, a sentence of 20 months' imprisonment was within the range which was open to the sentencing judge. We consider that his sentencing remarks amply justify his reasoning in that respect and that the appeal so far as it concerns the length of the sentence before credit for the guilty plea should be dismissed.

The appellant, however, is right, in our judgment, in submitting that he should have received one third credit against that prison sentence of 20 months, because he did everything he could to enter his guilty plea at the first available opportunity. The fact that he failed was partly a product of the use of the wrong form for the notice by which the proceedings against him began. The absence of a Better Case Management Form recording what happened in the magistrates' court may have inhibited the Crown Court in investigating this aspect of the case.

This is the second case this week where this constitution of this court has had to consider the level of credit given to an appellant in circumstances where the magistrates' court concerned did not complete a Better Case Management Form. We expressed our regret at that turn of events in the earlier case, and we repeat that expression now. We trust that discussions can take place between the resident judge and the magistrates' liaison judge in the Crown Court at Leicester and the Leicester Magistrates' Court, so that the importance of these forms can be emphasised. It is very difficult for the Crown Court and for this court on appeal to assess the level of credit without firm information about what happened at the first appearance before the magistrates' court. In this case that lacuna had been filled and we have received information which we accept, which shows that full credit of one third should have been allowed. That creates an arithmetical issue in terms of reducing the term of 20 months' imprisonment by one third. The best way of resolving that arithmetical problem is to impose, in place of the judge's sentence of 20 months' imprisonment, a term of imprisonment of 58 weeks, which in round terms does give credit of one third for the guilty plea.

We therefore quash the judge's sentence and substitute in its place an immediate term of 58 weeks' imprisonment.

We also quash the judge's recommendation for deportation for the same reasons which persuaded this court in Aderemi not to exercise its own power in that case to make such a recommendation. It appears that the First Tier Tribunal is seized of the appellant's case and we hope that it is proceeding with it at a rather greater pace than appears from the information before us to be the case. At all events, that is the appropriate forum for the resolution of any appeal from any decision which the Home Secretary may make to deport the appellant. We have in fact imposed a term of imprisonment in excess of 12 months in any event, which makes the recommendation somewhat academic.