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The importance of a basis of plea

Ayoub Belkaid was a male who was suspected of having committed terrorist related offences. In the wake of the Paris terrorist attacks of November 2015, the policing authorities involved in the investigation discovered links between the suspected terrorists and a Belgian Fraud Factory in Brussels. Fraudulent travel documents were in the suspects’ possession or recovered from their premises when searched and these were linked to the factory in Brussels. During the course of this aspect of the investigation a link was established between individuals involved in the Fraud Factory and Ayoub Belkaid, the Appellant in this case, who was residing in the United Kingdom. The Counter-Terrorism police investigated the Appellant and whilst their inquiries were in relation to terrorism, no such charges were brought. Instead the Appellant was charged with Conspiracy to Make a False Instrument with others unknown. The Appellant pleaded Guilty to this offence when at the Crown Court sitting at Oxford. There had been an application to vacate the Guilty plea but that was ultimately abandoned. The Appellant did submit a basis of plea and at the Sentencing Hearing it was confirmed that the basis was accepted by the Prosecution and no Newton Hearing was required by either the Prosecution nor the Judge. That basis of plea provided as follows:

1.      [The appellant] did not create or make any fraudulent document.

2.      He communicated with Toudefete in relation to fraudulent documents.

3.      He also communicated with Hajj in relation to fraudulent documents.

4.      He knew that the identity cards came from Belgium but did not know the extent of the operation.

5.      He understood the identity cards would be used by people in order to obtain employment and/or for travelling purposes but nothing more beyond these.

6.      His involvement was to pass on the photographs and other information that they would be used for purposes of creating the fraudulent documents/identity cards."

After mitigating, the Judge sentenced the Appellant to 4 years’ custody. The reader is referred to the full judgment but in the course of the hearing there were references by the Prosecution to the purpose behind the Appellant’s involvement as being for ‘ideological’ reasons. In his remarks the Learned Judge stated whilst there was some evidence of the Appellant receiving money for his involvement, that was not the whole story.

The matter went to a full hearing at the Court of Appeal with permission having been granted on the papers by the Single Judge. My arguments were in summary that the Learned Judge’s sentence of 4 years was manifestly excessive because the basis of his sentence did not appear to be on the written and accepted Basis of Plea but one that departed from it. The reference to ideology in the context of this case can only be terrorism and that would be a serious aggravating feature raising any sentence to a manifestly excessive level. Other submissions consequently were made as to the appropriate sentence on the basis of fraud cases and the relevant Fraud Sentencing Guidelines. The Court of Appeal allowed the appeal and therefore reduced the sentence to 3 years and 2 months.

This case highlights the importance of ensuring that a Defendant is aware of the basis upon which he/she is sentenced. It is also worth remembering the guidelines set out in the case of Underwood [2004] EWCA Crim 2256 paragraphs 3 to 11, which the Court of Appeal was referred to by me in my Grounds of Appeal. A Defendant must have an opportunity to either call evidence at a Newton hearing to support the written Basis of Plea, or he/she may abandon it and not risk losing any credit were they to be unsuccessful at the Newton hearing. Departing from a Basis of Plea without warning causes the Defendant injustice as he/she would be denied of the opportunity to call evidence. That did not happen in this case and as was submitted at the Sentencing Hearing and indeed at the Court of Appeal, the Basis of Plea was accepted and should not have been departed from. This case concerned fraudulent activity on a wide-reaching and international scale but the Basis of Plea limited the Appellant’s involvement in the conspiracy to that of a ‘go-between’ and paragraph 5 of the Basis of Plea clearly limits his knowledge of the operation as facilitating employment and travelling arrangements, nothing more beyond these. Any indication that his involvement was for something else beyond these must have been communicated. No such indication arose and as such that Court of Appeal sympathised and accordingly allowed the appeal.

By Martin Khoshdel, Barrister at 42 Bedford Row Chambers, whose areas of practice cover Clinical Negligence/Personal Injury, Business, Insolvency, Employment, Property (social and private disputes), and Serious Crime with an emphasis on white collar crime.

R v Ayoub Belkaid [2018] EWCA Crim 2488


22.02.2019