Perjury hard to prove? That's no reason not to prosecute
Published 09/08/2014 | 02:30
THE recent charging of former No 10 Downing Street spin doctor Andy Coulson with perjury is laced with bitter irony.
It is alleged that he lied during the 2010 trial of Tommy Sheridan, the former Scottish politician then on trial for perjury.
The irony is that Sheridan was accused of having perjured himself in a defamation action he took against News of the World in which he was awarded £200,000. It later became clear that he had lied in his evidence and he was subsequently tried for perjury.
In the course of Sheridan's trial Coulson gave evidence to the effect that he was unaware of the culture of phone hacking rampant at the newspaper he edited - a contention that his recent conviction for phone hacking renders incredible.
During the trial, Sheridan discharged his lawyers and opted to defend himself. He asked the jury to consider why there seemed to be so few perjury trials even though every one knew that perjury occurred on a daily basis in the courts.
An interesting question - he was convicted shortly after posing it.
It is, however, a question that we might usefully ask in light of a recent Supreme Court family law ruling involving a businessman who concealed more than €5m in assets during his divorce case.
The judges did not hold back when they described what he had done as "consciously and deliberately dishonest". One of the judges suggested that the "matter should not simply be let rest here" - in effect suggesting that the untruths pedalled should be the subject of criminal investigation and perhaps prosecution.
Judges tend to get exercised about perjury and for very good reason. Mr Justice Frank Clarke pointed to the fact that in family law proceedings, the courts have a solemn constitutional obligation to ensure that proper provision is made for former spouses and children. Any attempt to pervert this is grave indeed.
Equally serious considerations are at play in criminal and civil cases where witnesses are found to have lied. However, the chances of any would-be perjurer facing prosecution, much less punishment, would seem to be very slight indeed. Anecdotal evidence would tend to suggest that prosecutions for perjury here are as rare as hen's teeth. Figures from the CSO indicate that in 2011 and 2012 only two perjury offences were recorded and detected in each of these years.
Whilst it is difficult to get a handle on the extent of perjury before the courts, it is plain that it happens somewhat more regularly than twice a year.
It is sometimes suggested that perjury is a difficult offence to prove and can be somewhat technical. These problems, however, are overstated. To a greater or lesser degree all offences of dishonesty present certain challenges of proof. That itself is not a reason to eschew prosecution.
Indeed, the very low levels of prosecution for perjury in Ireland may well represent a very real cause for concern. In the absence of such prosecutions, the administration of the oath becomes little more than a decorous formality.
If those taking the oath believe that there is no real consequence to lying and it is manifestly in their interest to do so then it can be no surprise that they should lie.
The effect that this has on the justice system as a whole is corrosive.
In the UK, there would certainly seem to be a much more robust approach to investigating and prosecuting perjury. The additional examples of Jonathan Aitken and Jeffrey Archer no doubt serve to focus the minds of those who seek to lie to courts there.
In theory, we have the stiffest penalty for perjury of any country - up to life imprisonment. In the UK, the penalty is seven years and in the US it is five years. Yet in the absence of a willingness to deploy adequate resources to investigating and prosecuting perjury the penalty remains of largely academic interest.
Tommy Sheridan's question may not have been quite so stupid after all.
Remy Farrell is a Senior Counsel