David Stanton (Cork East, Fine Gael) | Oireachtas source

First, on behalf of my colleague, the Minister for Justice and Equality, Deputy Flanagan, who cannot be here, I thank Senator Ó Céidigh for introducing this Bill to this House last week on Wednesday, 17 October. It is moving very fast indeed. I also thank Senators Boyhan, Marshall and McDowell for supporting its presentation to the House. This is an important issue. There are no two ways about that. It has an impact across all court proceedings and many statutory functions.

I wish to state that, on the recommendation of the Minister, Deputy Flanagan, the Government has decided, as the Senator mentioned earlier, not to oppose this Bill. The view of the Government is that the principle of the Bill, to consolidate the law on perjury and related offences, is entirely reasonable. The Government recognises the work that has gone into producing and publishing this detailed Bill. It is a welcome development in the consideration of the issues involved. Given the wide-reaching scope of the Bill, however, it requires careful examination. This has not been possible in the short time since its publication last week. My officials only got it last Thursday. I heard Senator Ó Céidigh saying he has been working on this for quite a while. It is very impressive. From looking at it, up to 100 pieces of legislation are referenced in the Bill. I noticed one of them dates from 1540. When Senator McDowell mentions going back into the mists of time, he was not joking. It is a long time to reach back 478 years to do this. There is much work involved in this.

The Department of Justice and Equality, but also other Departments, need to confirm its impact, not only on court proceedings but also on day-to-day matters relating to the conduct of business and individuals working in their occupations. I accept and welcome the Senator's offer of engagement with officials and they stand ready to do that. The usual way that works is that it goes to various Departments and we get feedback from them. This impacts on every section and on a huge range of people, so we have got to get it right. It is very good work.

The other thing we are missing here is pre-legislative scrutiny. The Bill would have benefited from that on Committee Stage. In my five years on the Oireachtas Joint Committee on Justice, Defence and Equality, I found that very useful because it let people feed into the committee. That is not possible with Private Members' Bills for some strange reason. Government Bills have to do it but Private Members' Bills do not. Perhaps the Joint Committee on Justice and Equality might have an opportunity later on to have a look at this, but only after the Bill has been on Second Stage in the Dáil.

As Senators know, perjury is provided for in common law but it has proven problematic to prosecute. Suborning perjury is also an offence in common law but has historically proved difficult to prosecute as well. There are also specific offences which have been created in circumstances that would amount to perjury such as the offence in section 18 of the Commissions of Investigation Act 2004 of giving false evidence to a commission and section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. Furthermore, section 25 of the Civil Liability and Courts Act 2004 makes it an offence to give false or misleading evidence in personal injury actions. If convicted of this offence on indictment, a person can be sentenced to imprisonment for up to ten years or a fine of up to €100,000 or both.

The offence of perjury has been the subject of media commentary recently by stakeholders and, in particular, the business community. It has called for new legislation to be put in place to make it easier to prosecute the offence, especially in regard to personal injury claims. Last year, the Irish Small and Medium Enterprises association, ISME, made representations to the Minister. It requested the Government to make perjury a statutory offence given concerns about false statements in civil liability proceedings. At the time, a working group was examining these very issues on the cost of insurance. The cost of insurance working group was established by the Minister for Finance, Deputy Donohoe, in July 2016 and is chaired by the Minister of State at the Department of Finance, Deputy D'Arcy.

The objective of the working group is to identify and examine the drivers of the cost of insurance, and recommend short, medium and longer-term measures to address the issue of increasing insurance costs. A significant factor identified by the working group in its reports, which are available with action updates on the Department of Finance website, is the impact of fraudulent insurance claims. In its report published in January 2018, the working group reviewed sections 25 and 26 of the Civil Liability and Courts Act 2004. It noted the number of recorded prosecutions and convictions for the offence of false evidence in section 25 is very low, as has been pointed out here by my colleagues, and that this suggests a need for further co-operation between the insurance industry and An Garda Síochána. The working group recommended a number of measures to ensure sections 25 and 26 can have their intended effect regarding insurance fraud.

The cost of insurance working group found that few allegations of perjury are referred to An Garda Síochána for investigation. According to the Central Statistics Office, CSO, the average number of recorded perjury offences over the past ten years is around three per annum. The Courts Service has provided data which indicate there were no convictions for this offence in 2015 and 2016. By contrast, in England and Wales, where the offence is codified, the number of perjury convictions has averaged around 100 in recent years. In making this comparison, one needs to allow for the great difference in population. The low number of perjury prosecutions in Ireland has resulted in stakeholders such as ISME, the Competition and Consumer Protection Commission, and the Irish Business and Employers Confederation, IBEC, calling for the introduction of new legislative provisions in this area. That is why this Bill is welcome.

In response to the working group’s report, the Department of Finance is convening a round table to listen to the views of key stakeholders on insurance fraud. I understand it has met several times to progress a number of specific recommendations contained in the working group’s report of January 2018. Recommendations 11 and 12 of that report concern the production of statistics by An Garda Síochána and the Courts Service on complaints, investigations, prosecutions and convictions relating to fraud within the personal injuries area. The Department of Justice and Equality is liaising with the Garda authorities on the production of these statistics and has been informed that the necessary PULSE update will go live before the end of October.

Recommendation 13 of the same report recommends that Insurance Ireland, An Garda Síochána and the Office of the Director of Public Prosecutions agree a set of guidelines on the reporting of suspected fraudulent insurance claims. While guidelines were published in 2004, the working group noted that these have only been used to a limited extent over the years, and it proposed that a new set of guidelines should be developed. Following consultations with stakeholders, these new guidelines have been finalised and published on the Garda website and disseminated within the Garda organisation and will be further promoted internally as part of training shortly.

The fraud round-table process also examined the follow-on procedure in circumstances where fraud or exaggeration is identified in court or acknowledged by a judge and is following up with the Courts Service in this regard. I understand the round table has often touched on the theme of perjury more generally and the desire to see more prosecutions. The round table has noted that there is a perception that if someone appears to have lied in a court and this is noted by the court, this should automatically result in that person being convicted of perjury, but it understands the reality of securing convictions for perjury can be rather difficult. This is a result of several factors. Perjury is an offence in common law that may be tried summarily in the District Court. The offence is committed when a person, to whom a lawful oath or affirmation is administered by a person having the authority to do so in a judicial proceeding, swears absolutely and falsely in a matter material to the issue in question. The maximum penalty for perjury is seven years’ imprisonment.However, to sustain a conviction, the prosecution must prove the authority to administer the oath, the occasion of administering it, the form of oath administered, the materiality of the matter sworn, the falsity of the statement and the corrupt intention of the person making the perjured statement. It is also a requirement that there be at least two separate witnesses to the act of perjury for a prosecution of perjury to succeed. Where someone is found to have lied in court, this is likely to be based on the civil standard. For example, he or she would be found on balance of probability to have lied. If one wants to convict such a person of perjury, a criminal standard of proof is required. It would have to be proven beyond reasonable doubt that a person lied. Therefore, it is necessary for the prosecution to prove that the person lied to or misled the court and did so intentionally.

A separate Private Member's Bill, the Civil Liability and Courts (Amendment) Bill 2018, aims to amend the 2004 Act. The purpose of this Bill is to ensure that when a person has been found to have made a false statement, such an action will have to be reported to An Garda Síochána for investigation. The Government has not opposed this Bill either. However, the Government has stated it considers that substantial amendments to the Bill will be required.

A concerted policy approach is being taken with the support of the cost of insurance working group to address the issue of insurance fraud. The Government is acting to alleviate the concerns raised in particular by the business community in relation to false statements in court proceedings. This Bill as published is more wide-reaching and will impact beyond statements made with regard to court proceedings. As already stated it includes provisions relating to statutory instruments, such as accounts and inventories and the registration of an individual's vocation or profession. This is clearly acknowledged and illustrated in the Schedules to the Bill which list legislation dealing with matters which range from harbours, docks and piers to child abduction.

Any legislation with such general application needs careful consideration and the Department of Justice and Equality needs to consult all Departments, which in turn need an opportunity to consider the impact of this Bill and its provisions on matters within their remit and the agencies they work with. It is understood that the law on perjury is likely to be included in the forthcoming work programme of the Law Reform Commission. If that is the case, it would also be sensible to await and take account of its input before progressing this Bill beyond Second Stage.

The Government does not oppose creating a statutory offence of perjury and this Private Member's Bill is a welcome development in the consideration of this matter. Given the Bill's general application, it is important to fully assess its impact across Government and civil society. The Minister, Deputy Flanagan, will therefore carefully consider the detailed provisions of this Bill. As part of that process, he would be very happy to arrange for officials to discuss the Bill with Senator Ó Céidigh and his colleagues if he thought that might be useful.