The Criminal Section 14 of the Criminal Justice Perjury and Related Offences Act 2021

Criminal Justice Perjury and Related Offences Act 2021: A Legislative Analysis

The Criminal Justice Perjury and Related Offences Bill 2018 underwent rigorous scrutiny and debate during its Committee Stage in the Seanad, with key contributions from Senators Martin Conway, Pádraig Ó Céidigh, Michael McDowell, and Deputy Charles Flanagan. This essay examines the significant points raised during the debate, highlighting the role of the Director of Public Prosecutions (DPP), the implications of Section 14, and the constitutional concerns surrounding this law.

Senator Michael McDowell: The Role of the DPP

Senator Michael McDowell opened the debate by emphasizing the challenges of prosecuting perjury under the current legal framework. He pointed out that despite the frequent threats of sending cases to the DPP, the actual prosecutions for perjury were rare due to the complexities involved in proving the offense. McDowell stated:

"There are many who are prepared to perjure themselves in court. As long as the Director of Public Prosecutions takes the view that a statutory basis for perjury prosecutions must be put in place, the old thing that the Minister and I probably have heard on many occasions in court, where it is said that a file is going to have to be sent to Director of Public Prosecutions, will remain a very idle threat for people who have committed perjury because of the difficulties in proving the case and in stating exactly what perjury means."

McDowell's argument underscored the necessity of a statutory basis for perjury prosecutions, asserting that without such a foundation, the threat of prosecution remained largely ineffective. His remarks highlighted the need for legislative clarity to support the DPP in bringing perjury cases to court, thereby enhancing the credibility of the judicial process.

Senator Martin Conway: Acknowledging Legislative Efforts

Following McDowell, Senator Martin Conway expressed strong support for the bill and commended Senator Ó Céidigh for his efforts. Conway noted the depth of expertise and determination within the House, praising Ó Céidigh’s dual background in law and business. He stated:

"I concur with everything that has been said about the importance of the Bill. I spoke on the Bill on Second Stage. It proves the value of the House and its depth of opinion, views, knowledge, determination and experience. I did not realise that Senator Ó Céidigh had a background in law. I knew he had an extensive background as a very successful and distinguished businessman. Had he concentrated on law he may have competed with Senator McDowell in the Supreme Court."

Conway’s endorsement of the bill and his recognition of the Minister's cooperation in providing government time for the Report Stage illustrated the bipartisan support for strengthening perjury laws. He also reiterated McDowell's point about the potential ineffectiveness of perjury threats without robust legal backing.

Deputy Charles Flanagan: Independence of the DPP

Deputy Charles Flanagan contributed to the debate by affirming the independence and objectivity of the DPP's office. He stressed that the DPP operates without external influence, ensuring fairness in prosecutorial decisions. Flanagan's remarks were intended to reassure the Seanad that the centralization of perjury prosecutions within the DPP’s office would not undermine the impartiality of the judicial process. He stated:

"We also have an independent public prosecution office, which is the Office of the Director of Public Prosecutions. That office is legally mandated to exercise objectivity in all its work and dealings and independence in the matter of its decision making capacity. It needs to be at all times objective and independent in pursuit of prosecutions."

However, his comments also served as a prelude to the more contentious aspects of Section 14, which concentrated prosecutorial authority exclusively within the DPP’s office & also gave this indictable crime a 3 year time limit.

Senator Pádraig Ó Céidigh: Introducing Section 14

Senator Pádraig Ó Céidigh brought a pivotal aspect to the debate by introducing Section 14(1) of the bill. This section stipulated that proceedings for offenses under the Act, including perjury and subornation of perjury, could only be initiated and prosecuted by the DPP. Additionally, in s.14(2) it imposed a statutory time limit of three years for prosecuting perjury offenses. Ó Céidigh stated:

s.14(1); "Proceedings for an offence under this Act, or for the offence of perjury or subornation of perjury provided otherwise than under this Act, may only be brought and prosecuted by the Director of Public Prosecutions."

s.14(2); "Notwithstanding the provisions of section 10 (4) of the Petty Sessions (Ireland) Act 1851 , summary proceedings in relation to an offence under this Act or an offence of perjury or subornation of perjury under any other enactment or law may be commenced— (a) at any time within 12 months from the date on which the offence was committed, or (b) at any time within 6 months from the date on which evidence that, in the opinion of the person by whom such proceedings are brought, is sufficient to justify the bringing of proceedings, comes to such person’s knowledge, whichever is the later, but no such proceedings shall be commenced later than 3 years from the date on which the offence concerned was committed."

These provisions spark significant concerns, as they contravene existing legal principles and constitutional provisions.

Constitutional and Legal Concerns

Several constitutional issues arise from the provisions in Section 14. 

Firstly, Article 30.3 of the Constitution mandates that all crimes and offenses prosecuted in courts, other than those of summary jurisdiction, should be conducted in the name of the People and at the suit of the Attorney General or another authorized person. By restricting the initiation of perjury prosecutions to the DPP alone, Section 14(1) infringes upon this constitutional requirement.

Moreover, the three-year statutory time limit outlined in section 14(2) for prosecuting perjury conflicts with Section 177 of the Criminal Justice Act 2006, which states that indictable crimes in Ireland have no time limit. This discrepancy raises questions about the alignment of the new legislation with established legal standards.

The Role of the Office of Parliamentary Legal Advisers (OPLA)

Throughout these debates, the Office of Parliamentary Legal Advisers (OPLA) played a supervisory role as mandated under Section 14C of the Houses of the Oireachtas Commission Acts 2003. The OPLA's involvement was intended to ensure that legislative processes adhered to constitutional and legal standards. However, the passage of Section 14 suggests severe oversights & conflicts in the advisory process.

Separation of Powers and Legislative Authority

The concentration of prosecutorial authority for perjury within the DPP’s office also violates the separation of powers. Article 6 of the Constitution underscores the division of powers among the legislative, executive, and judicial branches. By vesting exclusive prosecutorial power in an executive office, the bill undermining this principle and encroaching on judicial independence & the right on individuals to bring private prosecutions as protected in Article 30.3 of the Constitution.

Conclusion

The debates on the Criminal Justice Perjury and Related Offences Bill 2018 reflect a complex interplay of legal, constitutional, and procedural considerations. While the bill aims to address the challenges of prosecuting perjury and ensuring judicial integrity, the provisions in Section 14 pose significant constitutional  & legislative questions. Section 14 is unconstitutional & unlawful.