Where on the evidence a conviction was possible under either s.5(1) or s.5(2) Forgery and Counterfeiting Act 1981, the best course was the charging of the two offences in separate counts, but there had been no unfairness to a defendant by the late introduction of a s.5(2) offence at trial.Appeal against conviction and sentence following trial at Middlesex Crown Court where the appellant ('D') had been convicted of having a false instrument in his possession or control and was sentenced to six months' imprisonment. On D's own evidence D had bought the passport for ?23.50 from a street trader in Oxford Street. D had had passport photographs taken, which he gave to the street trader and which had then been inserted into the passport. D conceded that he had considered using the passport in order to obtain credit but had not done so. At the close of the defence case there had been a discussion about adding an alternative charge to an indictment including a charge of handling stolen goods and a count based on s.5(1) Forgery and Counterfeiting Act 1981. The judge left to the jury the opportunity to bring in a verdict under s.5(2) of the 1981 Act as an alternative to the offence under s.5(1) of the 1981 Act. D objected to that course on the basis that the two offences were not strictly alternative within the meaning of s.6(3) Criminal Law Act 1967. Counsel for D accepted that a fresh count could have been added to the indictment provided that it caused no injustice to D. D had been prepared to plead guilty to an offence under s.5(2) of the 1981 Act. The judge declined to follow that course and the jury convicted under s.5(2) of the 1981 Act, acquitting D on the offence under s.5(1) of the 1981 Act. On appeal against conviction D submitted that the conviction was unsustainable because the jury had not been entitled under s.6(3) of the 1967 Act to bring in the alternative verdict. In terms of sentence D contended that: (i) the judge's indication that he would treat D as someone who wished to plead guilty at the outset amounted to an indication that the magistrates' powers of sentencing were appropriate; and (ii) the judge had failed properly to explain why a custodial sentence was necessary.HELD: (1) D had been prepared to plead guilty to the offence under s.5(2) of the 1981 Act. In relation to conviction D had not been prejudiced by the late introduction of the offence under s.5(2) of the 1981 Act. The charge under s.5(2) of the 1981 Act had been placed before the jury in a written form which: (a) set out the particulars; (b) had every appearance of being a separate count; and (c) would have been treated by the jury as such. The verdict could therefore be treated as the verdict of a jury on a separate count. There had been no unfairness to D and no doubt had been cast upon the safety of his conviction. (2) In future cases, where on the evidence a conviction on either s.5(1) or s.5(2) of the 1981 Act was possible, the best course was the charging of the two offences in separate counts. (3) The sentence was appropriate for passport offences and for an early guilty plea and the judge's explanation was sufficient and appropriate to the circumstances.Appeals dismissed.

[2003] EWCA Crim 576