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On the 28th of July 2021, the Criminal Justice (Perjury and Related Offences) Act 2021 came into effect, creating a statutory offence of perjury. Prior to its enactment, perjury was a common law offence without a clear definition or sentencing parameters. This made perjury notoriously difficult to prosecute. The late Paul Anthony McDermott SC stated in an article in 2019 that “This is why it sometimes feels as if making exaggerated claims has become a national sport, with as many participants involved as there are in the GAA.” The Act seeks to remedy this deficit by creating a clearly defined offence and associated sentencing parameters. Just as St Patrick drove the snakes from the country, the legislature seeks to drive the snakes from the courtroom. So, what does perjury involve and how effective will the Act be?
Elements of the offence
The new offence of perjury seems to broadly reflect its UK equivalent in that it requires (a) the giving of a material statement (b) in judicial proceedings (c) which is false and (d) which the individual knows to be false. A material statement can include both oral evidence and affidavit evidence. The offence seems clear, but some questions arise as to how these elements should be interpreted.
What is a false statement?
This seems relatively straightforward – a false statement means a statement which is untrue. But what about evidence which misleads by omission? If a witness is asked whether the light was green when they drove through the crossroads, and they confirm it was but fail to mention that they were blasting Sweet Caroline while singing into a their hairbrush, is this a false statement? If asked how drunk you were when you had that slip and fall after the Westlife concert in Croke Park, is it sufficient to say that you were quite tipsy or do you need to tell the Court that you were indecent to the point of bringing shame to the parish? And what about exaggeration? If you say that being defamed ruined your otherwise pristine reputation but strictly speaking that viral YouTube video of your catastrophic rendition of Wuthering Heights at a karaoke night in Tenerife five years ago had obliterated your reputation before that security guard ever accused you of shoplifting, is that a false statement? These examples may be somewhat unrealistic but the serious question remains as to the fairness of punishing plaintiffs for what may be relatively minor omissions or exaggerations. For the moment, a false statement seems to be defined in pretty stark terms. It will be interesting to see how this will be interpreted by the Courts.
Material to the proceedings
Another interesting element is the requirement that the statement be “material” to the proceedings. Section 2(3) of the Act states “…the question as to whether a statement given by the person was material in a judicial or other proceeding is a question of law to be determined by the court of trial in the proceedings for perjury.”
In the UK, a similar requirement that the statement be “relevant” to the proceedings is an element of the offence of perjury. This element has generated a reasonable amount of case law as the Courts have had to grasp with the line to draw between false evidence and the elements of the claim involved. In the Andrew Coulson case in 2015, Lord Burns famously stated “Not every lie amounts to perjury.” In a lengthy judgment (which can be found here: https://www.scotcourts.gov.uk/search-judgments/judgment?id=c377daa6-8980-69d2-b500-ff0000d74aa7) he stated that relevance meant “relevant either in proof of the charge against the accused in that trial or in relation to the credibility of the witness.” The credibility of the witness however, also had to have some bearing on the substantive charge. Although in the Coulson case Lord Burns found that the accused had lied on oath, he found that the lies did not relate to the substantive claim in the original trial, he therefore dismissed the charge of perjury.
Interestingly, section 7 of the new Act makes it an offence to fabricate evidence, but does not put any limitation on the offence, ie, it does not require that such fabricated evidence be material to the proceedings. How these offences will be interpreted by the Courts remains to be seen.
The appropriate penalty which should attach to a conviction for perjury under the common law was also unclear. However, the new Act sets out very clear penalties in section 12;
“12. A person who commits an offence under this Act is liable—
(a) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.”
Though a fine of €100,000 seems inordinately high and entirely excessive, it is perhaps indicative of the desire of the legislature to discourage exaggerated or misleading evidence. Historically, the Courts in the UK have taken a hard line on perjury. Let’s not forget Christine Keeler – a woman who truly embodied Ronan Keating’s song “Life is a rollercoaster” – who lied on oath that jazz singer Lucky Gordon had assaulted her and was sentenced to 9 months in prison.
The creation of a statutory offence of perjury is to be welcomed. The offence is defined clearly and brings some much needed clarity to a previously translucent area of law. However, questions arise as to how these elements will (or should) be interpreted. For the moment, how effective the snake-driving will be remains to be seen.