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Criminal Law – Perjury and Kindred Offences

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Criminal Law – Perjury and Kindred Offences THE LAW CCMMISSION Second Programme, Item XVIII, Subject (2) (a) WORKING PAPER No. 33 PERJURY AND KINDRED OFFENCES TABLE OF CONTENTS I Paragraph No, I INTRODUCTION 'I I1 PRESENT LAW 2 I11 THE RELATIONSHIP OF OFFENCES UNQER THE PERJURY ACT TO OTHER OFFENCES 3- 9 IV STATISTICAL INFORMATION 10 - 11 V THE POLICY AND SCOPE OF A NEW ACT 12 - 22 (1) General policy 12 - 14 (2) Statutory offences relating to the making of false statements outside the 1911 Act 15 (3) Offences relating to marriages, births and deaths 16 - 17 (4) False declarations etc. to obtain registration for carrying on a * vocation 18 (5) Overlapping with offences under the Theft Act 1968 and under a new Forgery Act 19 - 213 (6) Proposed substantive offences 21 (7) Ancillary offences 22 Paragraph No. VI SPECIAL PKOBLEMS ARISING IN RELATION TO PERJURY OFFENCES 23 - 56 (1) Problems relating to the statement founding a prosecution for perjury 23 - 27 (a) Materiality 23 - 26 (b) Perjury by true statements 27 (2) The mental element in perjury and offences akin to perjury 28 - 34 (a) The present position 28 - 41 (b) Proposed mental element 32 - 35 (3) Judicial proceedings: their scope and problems relating to irregularities arising therefrom 36 - 44 (a) Scope of judicial proceedings 36 - 40 (b) Irregularities 41 - 44 (4) Problems relating to evidence 45 - 47 (a) Corroboration 45 - 46 (b) The self-contradicting witness 47 (5) Compensation for victims of perjury 48 (6) Miscellaneous problems 49 - 56 VII JURIS DICT ION 57 - 59 VIII PENALTIES 60 - 61 IX REPEAL POLICY 62 - 66 X PROVIS IONAL PROPOSALS 67 - 68 XI SPECIAL QUESTIONS FOR CONSIDERATION 69 APPENDIX: EXAMPLES OF PERJURY AND KINDRED OFFENCES IN CURRENT LEGISLPLTION WITH MAXIMUM PENALTIES (ii) THE LAW COMMISSION SECOND PROGRAMME - ITEM XVII1,SUBJECT 2(al PERJURY AND KINDRED OFFENCES I INTRODUCTION 1. The present law of perjury and subornation of perjury1 together with certain other offences relating to the making of false statements is to be found principally in the Perjury Act 1911, which was enacted to consolidate the law relating to perjury and kindred offences, This Act did not refer to perjury at common law, but the significance of this may well be, not that the common law offence was being.retained, but that, on the authorities, it was doubted whether there was any such common law offence.* In any event the precise extent and the essentials of the offence in early times have always been matters of some obscurity and it is unnecessary to trace the law further back than the Perjury Act 1728. This Act was confined to perjury in judicial proceedings and provided for the punishment of perjury or subornation of perjiry with up to seven years' imprisonment. Parliament gradually extended the offence to'include the telling of a falsehood on oath in various circumstances outside the scope of judicial proceedings and it is noteworthy that the 1911 Act repealed provisions dealing with perjury in some 130 Acts of Parliament. So far as the present law is concerned there is no need to consider any legislation earlier than the 1911 Act. 3 1. The procuring of a person to commit perjury where that person actually commits that offence. 2. Stephen, Hist0r.y of the Criminal Law of England Vol.3, pp. 240-249. Holdsworth, A History of English Law, Vol.Iv, PP. 515-519. 3. Except in relation to repeals: see para. 56 n.88 as to s.6 of the Piracy Act 1850 and s.22 of the Slave Trade Act 1873. See also para. 66. I1 2. The Perjury Act l9ll was enacted to consolidate and simplify the law relating to perjury and kindred offences. The Act does not extend to Scotland or Northern Ireland which have their own corresponding statutes, the False Oaths (Scotland) Act 19334 and the Perjury Act (Northern Ireland) 1946. The offences under the 1911 Act are summarised in the following pages under the general headings of Substantive and Ancillary Offences, Procedural and other miscellaneous provisions of the Act are dealt with in paragraphs 52-56, (A) Substantive Offences (i) Section l(1) creates the principal offence of perjury in judicial proceedings, punishable on indictment with up to seven years' imprisonment . The of fence involves the wilful making of a statement in a judicial proceeding by a person lawfully sworn as a witness or interpreter which that person knows to be false or does not believe to be true:' and by virtue of section l(5) the offence covers such statements made by persons lawfully sworn under the authority of an Act of Parliament (a) in any other part of H,M, 'S dominions or (b) before a British tribunal or officer in a foreign country, (ii) Section 2( 1) penalises with up to seven years' imprisonment the wilful making of a statement on oath otherwise than in judicial proceedings where the person making it knows it to be false or does not believe it to be true; and 4. Although, in practice, perjury is usually dealt with according to the common law of Scotland - see Gordon, Criminal Law p.992. 5. Extended by the Criminal Justice Act 1967, s.89 to false statements made for the purposes of ss. 2 and 9 of that Act in respect of which the maximum penalty is imprisonment for two years; not triable summarily. 2 section 2(2) similarly penalises the wilful using of a false affidavit for the purposes 6 of the Bills of Sale Act 1878. (iii) Section 3(1) punishes the knowing and wilful making of a false statement, oath or declaration with reference to marriage with up to severi years' imprisonment on indictment and 2100 fine on summary prosecution. There is a special time limit of eighteen months in relation to prosecution on indictment7 and of twelve months in relation to summary 8 prosecutions, (iv) Section 4( 1) punishes the wilful making of a false statement, certificate or declaration with reference to births or death^,^ on indictment with a maximum of seven years' imprisonment (with a time limit of three years) and summarily with a maximum fine of C100 (with a time limit of twelve months). 8 (v) Section 5 creates three offences which involve knowingly and wilfully making false st,atements not on oath. The statements are those made in - (a) statutory declarations (section 5(a)). 10 This offence is triable summarily with the consent of the accused by virtue of ~- 6. This replaces a provision of the Act of 1878 repealed by the 1911 Act. 7. See s.3(2) and para. 50 below. 8. See the Criminal Justice Act 1925, s.28(3) and para. 50 n. 79 below. 9e The offence in s.4(l)(d) (making a false statement with intent to have the same inserted in a register of births and deaths) does not require it to be done "wilfully": see further, para. 28. The offence in ~.4(l)(c)of wilfully making a false statement as to the body of a deceased person in a coffin also seems to be anomalous in that it does not necessarily relate to any statutory requirement . 10. By s.l5(2), this means a declaration made by virtue of the Statutory Declarations Act 1835 or any Act or instrument applying or extending its provisions. 3 the Magistrates' Courts Act 1952, section 19; (b) documents, etc. authorised or required by public general Acts (section 5( b) 1 ; (c) oral declarations or answers required by, under, or in pursuance of general Acts (section 5(c)).11 In a11 cases the offences are punishable on indictment with a maximum of two yearst imprisonment and/or a fine. There are substantial overlaps between offences under section 5(b) and (c) and other statutory offences relating to false statements. This is further discussed in part I11 of this Paper. (vi) Section 6 punlshes with up to twelve months' imprisonment and/or a fine anyone who wilfully makes a declaration, certificate or representation knowing it to be false or fraudulent in order to obtain registration under an Act of Parliament as a person qualified to practise a vocation. 12 03) Ancillary Offences (vii) Section 7(1) deals with aiding, abetting or suborning a person to commit an offence under the Act and section 7(2) with inciting or attempting to procure or suborn a person to commit an offence under the Act. Offences under both sub-sections are triable and punishable in the same way as the principal offence. 11. Offences under the Local Government Act 1933, s.225(2) and the Administration of Estates Act 1925, s.36(6) are deemed to be committed under s.5 of the 1911 Act. 12. There are overlaps with this section, e.g. the Architects Registration Act 1931, s.12 (summarily punishable; fine g5O) and the Nurses Act 1957, s.27 (fine El00 on indictment only). 4 I11 THE RELATIONSHIP OF OFFENCES UNDER THE PERJURY ACT TO OTHER OFFENCES 3. The essence of perjury is that a person upon whom the law imposes a positive duty to speak the truth because he places or finds himself in a position where his statements, if false, would tend to subvert social institutions, as distinct from private rights, is liable to penalties if he deliberately tells lies. Thus lies told in judicial proceedings may prejudice the due administration of justice; lies relating to births, marriages and deaths may seriously affect the status of third parties and impair the validity of official records; and false information furnished in accordance with statutory requirements or authorisation may undermine the proper and efficient operation of the legislative scheme which Parliament has enacted.
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