It is difficult to prosecute for perjury in Ireland because there is no prohibition on perjury on the statute books, writes Carol Coulter, Legal Affairs Correspondent.
It is not unusual in court cases, both in the civil and the criminal courts, for the judge in summing up, to dismiss a person's evidence as lacking credibility. In some cases they go so far as to state that the witness, including sometimes a Garda witness, lied on oath. They have even added a recommendation that the matter be referred to the DPP. But that is usually the last heard of the matter.
This is not because of a unique tolerance of swearing false evidence among the Irish authorities, but because it is a very difficult offence to prosecute. There is no prohibition on perjury on the Irish statute books.
The 1911 Perjury Act, passed by the British parliament, made it an offence for a person to make a statement before a judicial tribunal "which he knows to be false or does not believe to be true". If convicted, the person making the statement faces prison for up to seven years.
However, this Act never became law in Ireland, although it would be another decade before the state became independent and made its own laws. It was therefore not among the laws translated into Irish law on independence and no equivalent law was ever enacted.
In his seminal book on criminal law, Mr Peter Charleton SC commented this left "the law here in its usual haphazard state".
Yet there are references to perjury in some 40 pieces of Irish legislation, as varied as the Companies Act, the Cork Harbour Act, the Defence Forces (Temporary Provisions) Act and the Mental Health Act. These all state the circumstances, under the specific legislation, in which a person would be open to prosecution for perjury.
There is a common law offence of perjury, created by judicial statement and tradition, and codified in the Garda Síochána guide. This requires two witnesses to corroborate the falsehood of the statement made on oath or one witness with additional substantial corroborative evidence, as well as "corrupt intention".
The mere fact that two witnesses contradict each other does not provide a basis for such a charge, according to the guide. The statement must be proved to have been wilfully and deliberately false. Therefore there have been few prosecutions for perjury (though there have been a few), and judicial references to a witness lying in the witness box rarely go anywhere.
The Bar Council has called for a new law on perjury to bring the law up to date, codify it and simplify prosecutions. It also wants such legislation to deal with the problem of fraudulent insurance claims, making it an offence under a new Perjury Act to exaggerate an injury or losses sustained in an accident, for example.
Mr Hugh Mohan SC, who has worked on this subject for the Bar Council, told The Irish Times: "We would like there to be, in every case where a claim for damages is made, a verifying affidavit from the plaintiff. This would be sworn to be 'true and accurate to the best of my ability'. The defendant would have to do the same. If the Perjury Act included an offence of deliberately exaggerating injuries or losses, it would be a deterrent to the making of false claims."
He said that at the moment it was virtually impossible to mount a prosecution for perjury where there was any degree of complexity in the claim. "It is very difficult in the absence of an Act setting out what the offence it," he said.
This contrasts with the situation in Britain, where perjury is defined and there have been a number of high profile prosecutions. Jonathan Aitken was a minister in a British government. Jeffrey Archer was chairman of the Conservative Party, yet their elevated status did not protect either of them from being charged with perjury, convicted, serving long sentences and enduring political ruin. Archer is still in jail.
He, at least, would, however, have been likely to have been convicted in Ireland as well, according to Mr Mohan. He gave false evidence in a libel trial in which he was awarded a lot of money. The person who corroborated the false evidence later came forward and said it had been false and his testimony was accepted by the court.
There has been no comparable case here and there have not been anything like the number of prosecutions that would seem to be warranted by courtroom references to evidence that was not credible. Even more conspicuously, claimants who have failed to convince a court of their claims and were left paying their legal costs as a result, have not, so far, had to face any criminal prosecutions for false claims.
Until a clear law exists under which to prosecute them, they are unlikely to do so.