Amendments Nos. 1, 3, 7, 8, 10, 11, 14 and 15 are related and may be discussed together. Is that agreed? Agreed. Amendment No. 1 is consequential on amendment No. 3.
Perjury and Related Offences Bill 2018: Committee Stage
I move amendment No. 1:
In page 7, between lines 16 and 17, to insert the following:
“ “perjury” has the same meaning that it has in section 2(1);”.
Does the Senator wish to speak to the amendment?
Does the Minister wish to speak on it?
I do. I thank the House for accommodating this legislation this afternoon. Before I speak to the amendments I wish to outline my position and that of the Government on this Bill. I want to express my strong view to Senator Ó Céidigh that I am supportive of the amendments proposed to the Bill on Committee Stage, subject to legal advice and the need for further amendments in specific incidences, to which I will refer.
The general principle of the Bill, to consolidate and codify the law on perjury, is commendable. I am aware that historically it has proven difficult to have a successful prosecution for perjury and subornation of perjury at common law. I accept what Senator Ó Céidigh has said: that the essence of the Bill is the real need to provide for a more effective and streamlined process through which this offence can be prosecuted. This will allow us to move towards realising this objective by placing the offence and other related offences on a statutory footing. This is what the Bill purports to do, and I agree with it.
I recognise the work that has gone into the Bill by Senator Ó Céidigh in producing and publishing the Bill and for initiating debate on it in the Seanad. It is a very welcome development on the basis of the far-reaching issues we are seeking to address here. I also acknowledge the input of Senator Ó Céidigh's colleagues, Senators Marshall, Boyhan and McDowell, for having it presented to the House and developing the Bill in the context of discussions with other interested parties and stakeholders.
The offence of perjury has been the subject matter of much media comment recently, especially with regard to the business community. Some business organisations have called for new legislation to be put in place to make it somewhat easier to prosecute the offence particularly in the matter of personal injury claims, which impact directly on the unacceptably high level of insurance costs. The House will be aware that my colleague, the Minister of State with responsibility for insurance reform, Deputy D'Arcy, intends to introduce legislation to ensure greater protection and fairness for policyholders. I acknowledge the importance of the Bill in this because it will complement that legislation by providing a deterrent effect to those people across our society and in communities who wish to continue to abuse the law through the making of fraudulent claims. This is really important and I congratulate Senator Ó Céidigh on this.
On the future, including these amendments and having reiterated the fact that I support the general principle of the Bill, I assure Senator Ó Céidigh that I will continue to engage with him to further develop and strengthen the Bill so that I may be in a position to continue to support the Bill as it progresses through the Houses. I have received many of the substantive amendments to the Bill over the last ten days. My officials have sought the legal advice of the Attorney General on these issues. There could be a number of matters on which I may need to bring forward amendments at a later Stage, which focus generally on issues such as whether there is a need to equate penalties in this Bill with those provided in other legislation across the criminal justice system and whether the new offence of fabricating evidence might raise other concerns - and I would be keen to hear from Senators on this. Another matter may be the potential risk of double jeopardy arising in relation to any overlap in other legislation already enacted. In section 1, for example, the definition of judicial or other proceedings needs to be further developed and expanded. I will refer to these issues as the House deals with the relevant sections in the Bill.
Amendment No. 1 is a technical amendment that provides for the inclusion of a definition of perjury in section 1. This definition mirrors the definition already provided for in section 2. I agree with that. Perhaps the Leas-Chathaoirleach will clarify if it would be in order, for ease of reference and for ease of debate, if I may speak to section 1 at this stage.
We are on section 1, amendment No. 1.
The Leas-Chathaoirleach might invite comments from Senators-----
Senator Ó Céidigh will be speaking.
I am considering bringing forward an amendment to section 1 regarding the definition of judicial or other proceedings. One possible problem I see with the Bill is that it appears to define a proceeding as primarily involving the administration of justice and then states that this includes tribunals. A question might arise if this formula includes tribunals of inquiry, as well as decision-making tribunals. Senators will be aware that a tribunal of inquiry does not administer justice. It is concerned exclusively with the discovery of facts. Such a tribunal is a fact-finding exercise. We may consider whether commissions of investigation should be provided for under this definition. This is a policy matter. I would be happy to engage with Senator Ó Céidigh on this precise issue. I am also keen to ensure that we might be in a position to advance the Bill alongside other measures that both Houses are considering, across a number of Departments, to see if we can deal with the very challenging, important and urgent issue of insurance costs.
I am conscious of time here and of the fact that we have to go to the Dáil and perhaps that we might give consideration to the Dáil taking this Bill in Government time. I would be very happy to do so, notwithstanding that I currently have 117 Bills on my desk, one of which has taken a considerable amount of time and will undoubtedly take more. I am a guest here.
The Minister shows terrible favouritism towards that Bill.
I am a guest here and will not stray beyond my role-----
The Minister will not be let.
-----as indeed last week will testify. A question may well arise if the formula includes a tribunal of inquiry as well as decision-making tribunals. We need to tease that out. We will leave that as far as section 1 is concerned.
The Minister may wish to come in other sections. I call Senator Ó Céidigh.
I very much appreciate the Minister's and his colleagues' support of this Bill. I know two of the team in the Department who are with the Minister here. We have engaged quite extensively on the Bill and its drafting and taking into consideration the various inputs from a vast array of stakeholders in making the Bill as robust as possible. That was the underlying basis and purpose on which the departmental officials engaged in the conversations and meetings I had with them.
Like me, the Minister has a legal background and would de facto have an involvement in relation to court cases, evidence and the robustness of evidence. This Bill is intended to help create that robustness in evidence that is of great importance. I do not believe there was one prosecution for perjury in 2017 of the thousands of cases in the District, Circuit and High Court and in the other courts of the land.
I thank the parliamentary legislative drafter for drafting the Bill. It will be noted that there are almost 100 other pieces of legislation referred to. That is used in the research and due diligence in preparing this very robust Bill. I thank my colleagues for their support, which is very valuable and is very much appreciated. We are very much on the one team on this. I also thank my parliamentary assistant, Cáit Nic Amhlaoibh, a key person in all of this.
I understand that the Minister and the Government will provide Government time for Report Stage of Bill, which it is hoped will be in May or June, so that we can move it on to the Dáil and to the next stage. I note what the Minister said about insurance, business and other areas. That is crucially important. I note also what the Minister said about tribunals of inquiry and their role. I look forward to working with the Minister and his officials in making this Bill even more robust. I welcome his support for this Bill at this stage, given that he may come back on Report Stage with further suggestions for amendments.
I commend Senator Ó Céidigh on his initiative in bringing about this legislation and I very much welcome the supportive and co-operative approach of the Minister and his Department to the Senator's initiative. In the current climate, everyone is talking about personal injuries, fraud and all of that. Perjury is a wider issue than that. People can tell appalling lies in commercial and matrimonial cases and many other areas and do great damage to others, either personally or financially, or they may amass substantial gains for themselves by their behaviour. For instance, with whistleblower legislation, affidavits of discovery are very important in the judicial process. It keeps parties honest. I do not want to say anything overly dramatic but it is important that there are sanctions for telling lies on oath, not merely in court, but also in an affidavit that is going to influence the outcome of a court case. If a person has destroyed or falsified a document or affidavit of discovery, this can be of great importance.
The Minister has said that he has in excess of 100 pieces of legislation sitting on his desk. He has very graciously said that he does not want to reopen other things that have happened in this House today. Nobody is holding him up on this Bill or any of those other Bills. I emphasise that when it came to the Judicial Council Bill, this House was very facilitative in getting it through Committee Stage and on to Report Stage. That Bill is sorely needed, and I struggled for a number of years when I occupied the chair the Minister does now to get the Bill off the runway, so to speak, and airborne but with little success, due to factors that I will not go into now. We need a judicial council and this House is not, as it has been portrayed by some, holding up the Minister's programme. This House may have a view on one Bill, but nobody is stopping him from progressing everything else.
In a genuinely warm way I am delighted that the Minister is prepared to consider making Government time in this House available for Report Stage and that he has such a positive approach to the amendments which Senator Ó Céidigh has drafted to make this Bill as good as it possibly can be, so that when it is passed by this House, and I hope that is soon, it can go to the other House as a Bill which the Government can adopt completely in that House and pass into law as quickly as possible.
There are many who are prepared to perjure themselves in court. As long as the Director of Public Prosecutions takes the view that a statutory basis for perjury prosecutions must be put in place, the old thing that the Minister and I probably have heard on many occasions in court, where it is said that a file is going to have to be sent to Director of Public Prosecutions, will remain a very idle threat for people who have committed perjury because of the difficulties in proving the case and in stating exactly what perjury means.
The oaths Act needs to be looked at too. At the moment, if someone opts to affirm rather than swear, the judge is obliged - some judges forget about this - to put statutory questions to the witness and to ask him or her whether his or her unwillingness to swear is based on the absence of religious belief or the presence of religious belief which prohibits that witness from swearing.
It is an embarrassing process for witnesses to have to go into their religious beliefs in court when it is not necessary. If evidence on affirmation is treated in exactly the same way as proposed in this legislation, which is to say in the same way as evidence on oath, it is not really necessary to grill people about their views on religious matters and to put them through that mill. I will leave it at that. I thank Senator Ó Céidigh and I thank the Minister for expediting the passage of this legislation.
I concur with everything that has been said about the importance of the Bill. I spoke on the Bill on Second Stage. It proves the value of the House and its depth of opinion, views, knowledge, determination and experience. I did not realise that Senator Ó Céidigh had a background in law. I knew he had an extensive background as a very successful and distinguished business man. Had he concentrated on law he may have competed with Senator McDowell in the Supreme Court. This Bill is a testament to the Senator's identification of the necessity of dealing with this issue. I take on board Senator McDowell's point about the, most likely idle, threats of the Director of Public Prosecutions. The Bill is very welcome. I am glad the Minister is co-operating in providing Government time for Report Stage.
The Senators will have opportunity to comment further.
I have only a couple of points; I do not want to labour issues unduly-----
We are on amendment No. 1.
-----in the Upper House. I am on amendment No. 1. I am not; I am on the group of amendments.
We are on the group of related amendments which includes amendment No. 1.
My legislative work as Minister for Justice and Equality has been impacted upon by the amount of time I have spent in this House on the Judicial Appointments Commission Bill. The record will speak for itself in terms of the time taken and in terms of repetition. As I have said, I am a guest here, but the debate on that Bill has resulted in me having in excess of 100 pieces of legislation on my desk. Many of these are urgent. All of them are important. I would not be telling the full story if I did not say that the Bill has taken an inordinate amount of my time and of my officials' time. Be that as it may, the Senators operate their House in the way they deem fit. However, for the record, it has not been very encouraging in terms of good order. Today's proceedings are the latest example of that as the Order of Business went on late into the afternoon.
In any event, while I would like to provide Government time for Report Stage of Senator Ó Céidigh's Bill, I am in the hands of the Seanad. It could well be the case that if I indicated support for that initiative, it would again raise the ire of some Senators, who would then ensure it did not happen. Therefore, when I say that I support the concept of taking Report Stage in Government time, I am aware that it will not be my decision. I will be happy to discuss it with certain people here who may be in a position to influence proceedings, but I do not influence the Seanad. I cannot do that. The manner of my admonishment here last week set that out clearly. I am a guest here.
I hate to correct the Minister but, with respect, he is more than a guest here. He is the Minister.
I am an invitee.
He is very welcome. He has introduced a lot of legislation here.
I am an invitee here but I-----
The Minister is doing Government business and this House welcomes it.
I will abide by the rules, strictures and Standing Orders of this House at all times.
I appreciate that.
Therefore, when I say that I would like the Bill to be taken in Government time, I am only expressing a preference on my part. It is not something which is within my power to implement. Indeed, it might not happen. I will speak briefly on the other amendments in the group for the record. Section 2 is a-----
We have not come to that section yet.
I move amendment No. 2:
In page 7, between lines 23 and 24, to insert the following:
“ “subornation of perjury” has the same meaning that it has in section 3(1);”.
The Minister is anxious to speak on this amendment.
He is anxious to speak on it.
There is a grouping. Amendments Nos. 2 and 4 to 6, inclusive, are related. Amendment No. 2 is consequential on No. 5. Amendments Nos. 2 and 4 to 6, inclusive, may be discussed together by agreement. Does the Senator wish to speak first?
No, I do not need to speak on them.
Amendment No. 2 is a technical amendment which provides for the inclusion of a definition of "subornation of perjury" in section 1. Subornation of perjury includes pressing, encouraging or assisting someone to commit perjury. This definition mirrors the definition to be provided for in section 3, which I accept.
I support amendment No. 4, which is a consequential provision arising from amendment No. 3, in that it correctly provides that section 2(5) need no longer be retained as it sets out the offence of subornation of perjury, which will now be provided for separately in section 3.
Amendment No. 5 creates the new and separate section on the offence of subornation of perjury, which was previously provided for in section 2 of the Bill which had regard to anyone who "dishonestly causes to be given, or adduces or dishonestly causes to be adduced" a statement. That is agreed. Separating the offences of perjury and subornation of perjury affords a greater level of clarity in the structure of Bill.
Amendment No. 6 merely provides for grammatical correction. I agree with and accept this amendment.
Amendment No. 3 was already discussed with amendment No. 1.
I move amendment No. 3:
In page 7, to delete lines 27 to 30, and in page 8, to delete lines 1 to 7 and substitute the following:
“2. (1) If any person lawfully sworn as a witness or as an interpreter in a judicial or other proceeding gives a statement material in that proceeding that—
(a) is false, and
(b) he or she knows to be false,
then he or she commits the offence of perjury.”.
I move amendment No. 4:
In page 8, to delete lines 24 to 27.
I move amendment No. 5:
“Subornation of perjury
3. (1) Without prejudice to section 7 of the Criminal Law Act 1997, a person commits an offence of subornation of perjury if he or she procures, persuades, induces or otherwise causes another person to make, while lawfully sworn in a judicial or other proceeding, a statement that is false.
(2) The question whether a statement on which the offence of subornation of perjury is assigned was material is a question of law to be determined by the court of trial.
(3) This section is without prejudice to the Criminal Justice (Mutual Assistance) Act 2008.”.
I move amendment No. 6:
In page 8, line 38, to delete “subordination” and substitute “subornation”.
I move amendment No. 7:
In page 9, line 8, to delete “or misleading”.
I move amendment No. 8:
In page 9, line 9, to delete “or misleading”.
Amendments Nos. 9, 12, 16, 17, 19 and 20 are related and may be discussed together by agreement.
I move amendment No. 9:
In page 9, to delete lines 14 to 29.
I move amendment No. 10:
In page 9, line 33, to delete “or misleading”.
I move amendment No. 11:
In page 9, line 34, to delete “or misleading”.
I move amendment No. 12:
In page 10, to delete lines 3 to 18.
I move amendment No. 13:
In page 10, between lines 20 and 21, to insert the following:
“Fabrication of evidence
6. A person commits an offence if he or she, with intent to mislead any judicial or other proceeding—
(a) fabricates evidence by any means other than as provided for in respect of perjury or subornation of perjury, or
(b) knowingly makes use of such fabricated evidence.”.
I would like to hear the Minister's response to the amendment for the record.
Amendment No. 13 provides for the creation of a new offence of fabrication of evidence that does not amount to perjury or subornation of perjury under this Bill. It is a modern offence which has been provided for in perjury statutes in other jurisdictions. It is important that we would give favourable consideration to including it in this Bill in order to ensure the facilitation of perjury is equally provided for as an offence in this jurisdiction.
As previously referred to by Senator Ó Céidigh and I, the deterrent effect of the Bill and that of the penalties therein are in many respects as significant as any prosecutions or perhaps even any convictions that may arise from its enactment. I and my Department intend to consult the Attorney General's office to ensure that this new offence does not raise any other issues or that there are not any unintended consequences. If in the event of such issues arising, I may need to bring forward amendments at a later Stage to deal with them but I would be very happy to engage directly with Senator Ó Céidigh on that. I am considering bringing forward an amendment relating to section 6 regarding the definition of what is described as "fabricating evidence". I may propose to set out this in the list of definitions in section 1 but this is an issue upon which I am waiting for further advice and clarification from the Office of the Attorney General as to whether such a definition would be desirable in the context of this Bill. I undertake on the record of the Seanad that I will keep Senator Ó Céidigh, as the proposer of the Bill, fully informed of developments in this area.
I move amendment No. 14:
In page 10, line 31, to delete “or misleading”.
I move amendment No. 15:
In page 10, line 32, to delete “or misleading”.
I move amendment No. 16:
In page 10, to delete lines 33 to 40, and in page 11, to delete lines 1 to 8.
I move amendment No. 17:
In page 11, to delete lines 12 to 27.
I move amendment No. 18:
In page 11, between lines 28 and 29, to insert the following:
8. A person accused of an offence under this Act, or of any offence declared by any other Act—
(a) to be perjury or subornation of perjury, or
(b) to be punishable as perjury or subornation of perjury,
shall not be liable to be convicted of that offence upon the evidence of one witness only unless that evidence is corroborated in some material particular by evidence that implicates the person so accused.”.
With respect to this amendment, we are making express provision for an amendment to the corroboration requirement which previously provided that no person is to be convicted of an offence under this Act solely upon the evidence of one single witness. The amending provision retains the corroboration requirement, albeit in a way that perhaps is of greater clarification in that the corroborating evidence need not necessarily consist of the testimony of another witness, so it will have the effect that corroboration can also be attained through documentary evidence, through recording, for example, or other material forms. I support this amendment.
If I may with the consent of the House, I will speak briefly to section 8.
The requirement to corroborate as to the falsity of any statement in relevant statutes such as this one is the subject matter of some conflict of opinion, not only in academia but in practice and in an international context. Some argue against the corroboration requirement because we do not generally in law subscribe to a quantitative theory of evidence, where the evidence or testimony of one witness is deemed insufficient simply on the basis of there not being more than one witness. We also have an independent public prosecution office, which is the Office of the Director of Public Prosecutions. That office is legally mandated to exercise objectivity in all its work and dealings and independence in the matter of its decision making capacity. It needs to be at all times objective and independent in pursuit of prosecutions.
Historically, as Senators will be aware, the requirement of corroboration was developed across the water in Britain in the context of the era when private prosecutions were the norm and where, as a result of this, corroboration was seen as a protection against such private prosecution cases which often times lacked objectivity and which sometimes lacked integrity, but that context does not really apply here. However, I am off the view and agree that the corroboration requirement should be retained for a number of reasons. First, retention of this provision reflects the position in common law in that a person cannot be convicted of perjury solely on the testimony of one witness. Second, and to put it rather simply, I consider that one person's testimony against another is not a sufficient basis on which to legislate for the prosecution of perjury. Third, the statutory corroboration requirement has been in place in England and Wales for over 100 years now and I do not detect that it has been the subject matter of real and serious difficulty in the jurisdiction of England and Wales. It is reasonable and fair to consider that corroboration enhances the safety, integrity and soundness of convictions in the absence of any corroboration.
Acceptance of this amendment involves the deletion of section 8. Is it agreed that section 8 be deleted? Agreed.
I move amendment No. 19:
In page 12, between lines 13 and 14, to insert the following:
11. 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 to both,
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 7 years or to both.”.
Can I speak to this amendment?
Unfortunately, the Senator cannot because it was already discussed with amendment No. 9.
We did not get a chance to discuss it. If the House is prepared to-----
The Minister and the Senator can speak to the section if they wish when we have dealt with the other amendments to it.
I do not need to speak on amendment No. 19.
I move amendment No. 20:
In page 12, between lines 13 and 14, to insert the following:
“Proceedings for offences
11. (1) Proceedings for an offence under this Act, or for the offence of perjury or subornation of perjury provided otherwise than under this Act, may only be brought and prosecuted by the Director of Public Prosecutions.
(2) Notwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings in relation to an offence under this section may be commenced—
(a) at any time within 12 months from the date on which the offence was committed, or
(b) at any time within 6 months from the date on which evidence that, in the opinion of the person by whom such proceedings are brought, is sufficient to justify the bringing of proceedings, comes to such person’s knowledge,
whichever is the later, but no such proceedings shall be commenced later than 3 years from the date on which the offence concerned was committed.”.
Amendment No. 21 is in the name of Senator Ó Céidigh. Amendments Nos. 21 to 24, inclusive, are related and they may be discussed together by agreement. The Senator might like to speak on those amendments.
I move amendment No. 21
In page 12, to delete lines 20 and 21 and substitute the following:
“(2) Without prejudice to the provisions of Part III of the Children Act 1997 that relate to a statement made in civil proceedings without oath by a child (within the meaning of that Part), nothing in this Act applies to a statement so made.”.
Does the Senator wish to speak on the amendments?
The Senator will probably speak to the section.
The penalties are a very important part of the proposed legislation. The maximum sentence of seven years is actually taken from a recommendation of the Law Reform Commission and also in line with the legislation on perjury in Northern Ireland. The research and background work done on the section are related to it. We have also had numerous discussions with officials in the Department. The Minister may wish to reflect on this before Report Stage. I wanted to share with Members and the Minister, in particular, where the thinking behind the section came from.
I accept what the Senator said. The penalty proposed on summary conviction is a class B fine or imprisonment for a term not exceeding 12 months or on indictment a fine or imprisonment for a term not exceeding seven years or both. This is in line, as the Senator said, with the penalties in Northern Ireland. It has been designed to ensure all-island synergy in the offence imposed. However, it is not unusual for there to be differences in neighbouring jurisdictions in the penalties imposed for similar offences. There is always a possibility, for example, that there might be an increase in the maximum penalties for perjury in Northern Ireland, in which case the question would arise as to whether we should follow suit immediately. However, greater problems might arise in this jurisdiction if we had different maximum sentences for substantially similar conduct under two statutes. I will examine the position further on penalties imposed for similar offences under other legislation on the Statute Book here, particularly the Civil Liability and Courts Act 2004, of which sections 14 and 25 which deal with perjury and false declarations in making personal injury claims provide for a penalty not exceeding €100,000 or imprisonment for a term not exceeding ten years. Notwithstanding the fact that we acknowledge the discretion on the part of the Director of Public Prosecutions in deciding whether to bring a prosecution and the nature of the charge, I am not sure whether it would be desirable to provide for significantly contrasting maximum penalties for a similar offence. I will consider the matter further and might come back with a further amendment.
We have dealt with amendment No. 20 to the section. I do not propose to say anything further about it, but it is important, given the possible misuse of power to prosecute an offence under the section by aggrieved parties in civil or other proceedings. It is important that the right to commence proceedings for offences of perjury be given exclusively to the Office of the Director of Public Prosecutions. This will have the effect and consequence of ensuring there will be less of a risk of vexatious, groundless or unsubstantiated proceedings being brought under the legislation.
I move amendment No. 22:
In page 12, between lines 35 and 36, to insert the following:
“(2) The Industrial and Provident Societies Acts 1893 to 2018, this subsection and, in so far as they relate to the amendment to the Industrial and Provident Societies Act 1893, section 15(2) and Schedule 2 may be cited together as the Industrial and Provident Societies Acts 1893 to 2019 and shall be read together as one.
(3) The Friendly Societies Acts 1896 to 2018, this subsection and, in so far as they relate to the amendment to the Friendly Societies Act 1896, section 15(2) and Schedule 2 may be cited together as the Friendly Societies Acts 1896 to 2019 and shall be read together as one.
(4) The Insurance Acts 1909 to 2018, this subsection and, in so far as they relate to the amendment to the Assurance Companies Act 1909, section 15(2) and Schedule 2 may be cited together as the Insurance Acts 1909 to 2019 and shall be read together as one.”.
I move amendment No. 23:
In page 18, to delete lines 19 and 20 and substitute the following:
22 & 23 Vict. c.17
Vexatious Indictments Act 1859
Delete “Perjury,” where it first occurs, “Subornation of Perjury,” and “or (in the Case of an Indictment for Perjury) by the Direction of any Court, Judge, or public Functionary authorise by an Act of the Session holden in the Fourteenth and Fifteenth Years of Her Majesty, Chapter One hundred, to direct a Prosecution for Perjury.”.
I move amendment No. 24:
In page 20, to delete lines 17 to 29 and substitute the following:
“No. 37 of 1938
Statutory Declarations Act 1938
Substitute for section:
“Penalty for false
6. Every person who makes a statutory declaration which to his or her knowledge is false in any material respect commits an offence under section 5 of the Perjury and Related Offences Act 2019.”.
When is it proposed to take Report Stage?
On Tuesday, 7 May.
Is that agreed? Agreed.