Common law Crimes & Justice System
The ancient common law crimes of barratry, maintenance and champerty seek to prevent persons without a direct interest in litigation from supporting it. It is assumed that this will increase the risk of unjustified litigation and create perverse incentives.
Maintenance is an offence that consists of unlawful taking up of, upholding or assisting civil claims or quarrels of others or disturbance of rights other than for charitable motives. It applies only to civil proceedings.
Champerty is a separate offence which is an agreement or arrangement with either party to litigation to divide the subject matter of the suit. It involves taking an interest in the outcome of another’s litigation.
Barratry is an offence that involves habitually moving, exciting or maintaining suits or quarrels. It is committed by people who are “overly officious in instigating or encouraging prosecution of groundless litigation” or who bring “repeated or persistent acts of litigation” for the purposes of profit or harassment.
Perjury is a common law offence. It consists of knowingly giving false evidence in a material respect in a court proceeding. The evidence must be known and believed to be untrue. Where two person give contradictory evidence in proceedings, it does not follow that one or other is committing perjury.
The counselling, procurement or incitement of another to commit perjury is a common law offence, known as subornation of perjury. Both offences are subject under the Perjury Act 1729 to a period of imprisonment up to 7 years.
The testimony must be given on oath or affirmation. All testimony and legal proceedings are given on oath subject to limited exceptions. An affirmation is an alternative to an oath.
The false evidence must be material. It must affect the determination of the court. It need not be directly relevant to the matters and issue and may e relevant to a person’s credibility. Once it is influential, it may be material.
Perjury in Non-Judicial Proceedings
Perjury applies to evidence in judicial proceedings. This includes proceedings before court and at various stages in the court proceedings. Statements made for the purpose of proceedings are deemed to be made in proceedings so that affidavits, interrogatories, response to discovery and examinations on commission are covered.
Statutes extend perjury to evidence given to or before the European Courts and to evidence taken in the Republic of Ireland for trials in Northern Ireland.
It is a separate offence to fabricate evidence with the intention of misleading a court or judicial tribunal. This may apply even though the court never ultimately sits nor hears the evidence heard.
It is an offence for a person who is summoned as a juror to fail to attend without reasonable cause. A person who attends in pursuance of summons who is not available when called due to the effect of drugs or drink is guilty of an offence.
The summons must be served at least 14 days before the date required for first attendance. The offence is subject to punishment on summary conviction by a fine of up to €500.
It is an offence for a person duly summoned to make a false representation to the judge or County Registrar with the intention of evading jury service. It is an offence for a person to cause or make on behalf of another person duly summoned, a false representation to enable that person to evade a jury summons.
It is an offence without reasonable excuse to a give an answer known to be false, or recklessly give an answer that is false in a material respect when questioned by a judge for the purpose of determining qualification to serve as a juror. Each is subject to a fine on summary conviction up to €500.
It is an offence for a person to serve on a jury knowing that he is ineligible or disqualified to do so. They constitute separate offences, subject on summary conviction of fines of up to €500 and €2,000. It is an offence for a person who is called as a juror to refuse to be sworn.
It is a common law offence, embracery, to attempt to bribe or by any corrupt means to influence jurors in judicial proceedings in any way.
False Oaths and Declarations
It is an offence to swear a false oath. An affidavit made knowingly and falsely out of court for a non-judicial proceeding constitutes an offence. Several statutes in various contexts, provide specifically for offences for false oaths and the giving of false evidence.
The Statutory Declarations Act makes it an offence to willfully and corruptly make or subscribe a declaration knowing the same to be untrue in any material particular.
The Criminal Procedure Act 1851 provides that a judge in the superior courts may, if it appears to him that a person has been guilty of wilful and corrupt perjury in evidence given in affidavits, examination, answers or other proceedings, may direct the person to be prosecuted for perjury. If he believes there is a reasonable cause for such prosecution under the statute, he may commit the person to prison or require him to enter a recognisance to appear to answer a charge of perjury.
The making of any false declaration or affidavit before a commissioner for oaths or practiscing solicitor is deemed perjury if it is knowingly given falsely in a material particular. Commissioner for Oaths (Ireland) Act, 1872.
The making of a false statutory declaration which the maker knows to be false or misleading in a material respect is an offence. It may be prosecuted summarily with fine up to €3000 or imprisonment up to six months or both.
It is an offence to make a false oath or affirmation before an arbitrator or umpire in any proceedings before them. The offence is wilfully and corruptly giving false evidence, or wilfully or corruptly swearing an oath or affirming anything which is false. The punishment for perjury applies.
Unsworn Children’s Evidence
The Children’s Act provides for the giving of children’s evidence other than under oath. A child under 14 may give evidence without oath or affirmation provided that the court is satisfied that he or she is capable of giving an intelligible account of events which are relevant to the proceedings.
It is an offence for a child to make a statement which he knows to be false or believes to be untrue. He is deemed guilty of an offence subject to punishment in the same manner as a perjury. A similar provision equally applies to a person with a mental disability over the age of 14.
There is power to take a deposition from a child or to give evidence through a live link. Knowingly giving false evidence or giving evidence believed to be untrue through this channel constitutes an offence.
Tribunals and Bodies
Legislation provides for the treatment of false evidence knowingly given before many quasi-judicial and administrative tribunals. It is effectively deemed to equivalent to perjury. The Tribunal of Enquiry (Evidence) Act 1921, which is the basis of tribunals of investigation provides specifically for an offence of
- refusing to take an oath or make an affirmation,
- refusing to produce documents lawfully held,
- wilfully giving, evidence known to be false or not believed to be true,
- acting, obstructing or hindering the tribunal,
- failing or neglecting to comply with the provisions of orders made by the Tribunal.
Each of the above is a statutory offence subject on conviction on indictment to a fine up to €12,700 or up to two years in prison or both. There is also power for the offence to be charged and tried summarily.
The Diplomatic and Consular Officers (Provision of Services) Act 1993 applies, provides an offence of perjury in respect of oaths and notarial acts made outside the country before Irish diplomatic missions. It is also an offence to take a false oath or improperly to apply a signature, seal etc..
Personal Injury Claims
The Civil Liability and Courts Act 2004 reformed the law on personal injury proceedings. In a personal injury action, it is necessary for the claimant to give an affidavit verifying the claims in his pleading (statement of the claim). It is an offence to give false or misleading evidence in relation to the same.
It is an offence for a a person dishonestly to cause instruction to be given in relation to a personal injury action to a solicitor, a person acting for a solicitor or an expert, knowing it to be false and misleading in any respect.
If false and misleading evidence is given, the court may dismiss the claim unless this would result in an injustice being done. If the court is satisfied that false evidence has been given, it must dismiss the claim unless an injustice would be done. There is a special penalty under the legislation providing for fine up to €100,000 and imprisonment up to 10 years or both on conviction on indictment. There is also provision for a summary trial.