The Forgery and Counterfeiting Act 1981 is part of the codification of criminal law in England. Previous legislation, in particular the Forgery Act 1913, was abol- ished and the crime of forgery in common law was repealed. The Forgery in the 1981 Act rather than counterfeiting will be examined due to its relevance to our research topic.
Usually forgery is conducted as a preparatory step for some other offences and generally preparatory acts are not made criminal by the law; thus, it is argued that it is not necessary to have a separate forgery offence.159 However, such an
argument was not accepted by the Law Commission160, which maintained that in
addition to the historical reason, in a modern society there is a need to rely on the authenticity of documents as being the authority for the truth of the statements which they carry.161
The first relevant element concerns the subject matter of forgery. According to the Act, a person is guilty of forgery if he makes a false instrument; here “instru- ment” is defined as “any document, whether of a formal or informal character” in s 8 (1) (a). Then the question turns to what exactly does “document” refer to. It can be said that a document is written on paper or any material and the writing may include letters, figures or any other symbols with the purpose of conveying information.162
The Law Commission held the view that in order to be the subject of forgery, a document must usually have two distinct kinds of messages: first, a message about the document itself; and secondly, a message to be found in the words of the document that is to be accepted and acted upon.163 The Law Commission pointed 157 Levi, M. & Burrows, J. (2008), p. 293; for an explanation on what happens after an offence has
been reported to the police, see Ashworth, Andrew (2006), pp. 9-10; for general information about the process of criminal procedure in England, see Sprack, John (2002), Emmins on Criminal Procedure, Oxford: Oxford University Press, 9th ed..
158 Levi, M. & Burrows, J. (2008), p. 293.
159 Smith, J. (2002), Smith & Hogan Criminal Law, London: Butterworths, 10th ed., p. 673.
160 In England, the Law Commission is the statutory independent body created by the Law
Commissions Act 1965; it keeps the law under review and recommends reform where it is needed; its recommendations have a profound effect if implemented by Parliament, available at www.lawcom. gov.uk/about.htm, accessed 14 Jan., 2010.
161 The law Commission, (No. 55), House of Commons, Criminal Law, Report on Forgery and
Counterfeit Currency, 17th July 1973, para. 21. 162 Ibid, para. 23.
out that the essence of forgery is “the making of a false document intending that it be used to induce a person to accept and act upon the message contained in it, as if it were contained in a genuine document”, and only those documents which convey the two kinds of messages are under the protection of the law of forgery.164
S 9 of the Act provides the circumstances where an instrument is false165, and
a person is to be treated as making a false instrument if he alters an instrument so as to make it false in any respect166. According to s 9, the concept of “falsity”
is comprehensive and the ordinary application of s 9(1) may not have serious difficulties.167
The mens rea of the offence are considered to have two aspects. First, there is the requirement of a mental element relating to the making, using or possessing of a false instrument; and secondly, it concerns the requirement that a person should intend that another should be induced to do some conduct to his own or another’s prejudice due to accepting the false document as genuine.168 Thus, if a
person only makes a false document without appropriate intents, then this docu- ment is not a forgery under the context of this Act. S 10 of the Act defines “induce” and “prejudice” in a detailed way.
By s 6 the forgery offence is triable in either way: on summary conviction169,
the punishment is six months imprisonment and/or a fine not exceeding the statu-
tory maximum; on indictment170 by ten years imprisonment and/or a fine. This
will be compared with the sentence level in Fraud Act 2006.
Forging specific documents is the most important type of L/C fraud. Thus it is reasonable to infer that if a person, who is subject to the jurisdiction of England, forges some documents in order to fraudulently obtain L/C payment, he/she may be prosecuted under the Forgery and Counterfeiting Act.
164 Ibid.
165 The Forgery and Counterfeiting Act 1981, S 9 (1), which states that “An instrument is false for the
purpose of this Part of this Act – (a) if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form; or (b) if it purports to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form; or (c) if it purports to have been made in the terms in which it is made by a person who did not in fact make it in those terms, or (d) if it purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or (e) if it purports to have been altered in any respect by a person who did not in fact alter it in that respect; or (f) if it purports to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect; or (g) if it purports to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered; or (h) if it purports to have been made or altered by an existing person but he did not in fact exist.
166 The Forgery and Counterfeiting Act 1981, S 9 (2). 167 Smith, J. (2002), p. 678.
168 Ibid, p. 683.
169 ‘Summary’ means the process of ordering the defendant to attend the court by summons, a written
order usually delivered by post which is the most frequent procedure adopted in the magistrates’ courts; ‘Conviction’ is a judicial determination of a case; ‘Summary conviction’ refers to a conviction in a magistrates’ court (usually for most minor crimes); The Magistrates are the judges of both fact and law and must either convict or dismiss the case, see Elliott & Quinn (2000), pp. 268-269.
170 ‘Indictment’ refers to a formal document containing the alleged offences against the accused, supported
by brief facts; it is read out to the accused at the trial; it is usually for the more serious offences and such offences can only be heard by Jury in the Crown Court, see Elliott & Quinn (2000), p. 269.