Fintan O’Toole: Our perjury laws have failed for cultural – not legal – reasons

On building sites, there used to be a tradition of sending the callow young apprentice on his first day to ask for the rubber hammer and the glass nails. When I started covering tribunals of inquiry in the early 1990s, I fell victim to the same hoax.

I was gormlessly looking out for perjury. Witnesses appearing before the tribunals were required to swear oaths. The law, as a Law Reform Commission report of 1990 defined it, seemed clear enough: "A person who asserts upon oath or affirmation the truth of some matter of fact material to the proceedings, which assertion he does not believe to be true when he makes it . . . may be prosecuted for the common law offence of perjury."

Glass hammer, rubber nails. I gradually came to understand my own naivety. Witnesses, many of them among the most powerful people in the country, took to the stand and lied through their teeth. They asserted on oath things that were later proved beyond doubt to be false. In some cases they even accepted, after being presented with the evidence, that they had indeed lied. But they clearly knew what it took me some time to learn – that they would get away with it.

The essential point of bringing forward this new legislation is that the existing law on perjury is inadequate and that this is why the law on perjury has been flouted with such impunity

Thus, former taoiseach Charles Haughey lied to the McCracken tribunal, claiming that he had not received money from businessman Ben Dunne but later conceding he had done so. He was prosecuted in the Dublin District Court in 2000, but the trial was postponed indefinitely and never actually took place.

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The Flood tribunal found that property developers Mick and Tom Bailey “hindered and obstructed” it in a number of ways, including making untrue statements under oath. Not only, it said, did the two men each give false evidence under oath, but the tribunal found they had “colluded” with each other to concoct that evidence. Neither of them was prosecuted for perjury.

Nor was the former minister Ray Burke, found by the same tribunal to have "furnished an account, as to how he had financed the acquisition of [his house] which he knew to be false".

This week, the Cabinet decided to adopt and broaden the Perjury and Related Offences Bill, which began life as a Private Members' Bill sponsored by Senator Pádraig Ó Céidigh in the Seanad. Minister for Justice Charlie Flanagan is proposing amendments so that the maximum penalties on indictment for perjury will be fines of up to €100,000 or imprisonment for a term not exceeding 10 years, or both. This is welcome, but it also raises a very obvious question: why now?

The essential point of bringing forward this new legislation is that the existing law on perjury is inadequate and that this is why the law on perjury has been flouted with such impunity. But is this so?

If the authorities have been reluctant to apply existing law, how confident can we be that the new law will fare any better?

The Law Reform Commission in 1990 wrote: “Although prosecutions for perjury are comparatively rare, this does not appear to be due to any deficiencies in the existing law.” More recently, the working group established by the Department of Finance to look into the cost of insurance found that sufficient legislative provision exists to combat fraud and perjury in personal injury claims using Section 14 of the 2004 Civil Liability and Courts Act.

The report states that “no instance of a prosecution or conviction pursuant to Section 14 was found by the working group”.

Let's take one prominent case we know of. In January 2016, Mr Justice Hedigan ruled in the High Court on a challenge by Independent TD Michael Lowry to the decision by the Moriarty tribunal to refuse to pay him the bulk of his legal costs because he had failed to co-operate honestly with its work.

‘Litany of falsification’

“These unchallenged findings,” said the judge, “are a litany of falsification and deception by Mr Lowry including the alteration and falsification of a solicitor’s files in order to conceal certain of his dealings from the tribunal. They include findings of perjury and bribery of a potential witness to support Mr Lowry’s false evidence. All of this was with the intention of misleading and frustrating the tribunal. As a result of this conduct by Mr Lowry, the tribunal was frustrated and misled and its work was protracted significantly. I emphasise these findings are not challenged in these proceedings nor can they be because the time within which such a challenge could be brought is long expired.”

Lowry, who appeared before the tribunal as a former minister for communications, appealed this ruling. In March 2018, the three-judge Court of Appeal ruled that it “would dismiss the appeal of Mr Lowry in relation to the challenge to the findings of non-cooperation”. (It found in his favour on other grounds in relation to the order on costs.)

So here we have a concrete case where five distinguished judges (Judges Moriarty, Hedigan, Ryan, Finlay Geoghegan and Edwards) have come to the view that Lowry did not honour his sworn oath to tell the whole truth to a tribunal. Is it really the case that a prosecution under the current law would have no chance of succeeding?

This raises two specific anxieties. One is that the promised new legislation, for all its toughness, might be another rubber hammer. If the authorities have been so reluctant to apply the existing law even in cases where courts have found “a litany of falsification and deception”, how confident can we be that the new law will fare any better?

The chancers who tell tall tales of slipping on the floor of a pub or a shop do a great deal of harm to the common good. They should indeed be punished severely

The central issue seems to be not just legal but cultural: for reasons that are hard to pin down, telling lies under oath does not seem to be seen as a serious crime in Ireland.

The second issue is whether, if the new law is passed and implemented, it will be aimed solely at the little liars. Irish governments have been ignoring the immunity from prosecution for perjury of senior political and business figures for decades. Why has the issue acquired enough urgency to prompt action now?

Not because of the political scandals and corruption that led to the establishment of the tribunals at which the lies were told, but because of public anger over false and exaggerated insurance claims.

That anger is perfectly justified. But the law, if it is to be credible, has to be applied equally. The chancers who tell tall tales of slipping on the floor of a pub or a shop do a great deal of harm to the common good. They should indeed be punished severely.

But the chancers who undermine good government and public faith in democracy do a great deal of harm too. If the new law is used against the first lot but not the second, we may all continue to have cause to swear aloud, and not in language fit for the courtroom.