Perjury- A Barrister's analysis

Many of those outside of the legal profession are aware of the term ‘perjury’, it is often represented through television programmes or in the news. Many read about the recent high-profile conviction of Jennifer Johnson, the ex-partner of Russell Bishop the 'babes in the wood' murderer, for an offence of perjury that was committed over 30 years ago. In the U.S. Ghislaine Maxwell faced the prospect two counts of perjury. 

Perjury is a criminal offence and can lead to serious consequences. It is triable only on indictment, which means that it can only be heard at the Crown Court – the more serious of the Crown and Magistrates Courts.

What is Perjury?

Perjury is defined under the Perjury Act 1911. It is committed if a witness or a defendant lies while giving their evidence under oath about an ongoing court case.

The elements of the offence, that the prosecution must prove, can be broken down as follows:

• being a lawfully sworn witness or interpreter;
• in judicial proceedings;
• wilfully making a material statement which is false; and
• knowing that it is false or not believing it to be true.

All of these must be proven for an offence to be committed; a lie, of itself, is not enough for someone to be found to have committed perjury.

What are judicial proceedings?

The Perjury Act 1911 defines judicial proceedings as a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath. The Act further states that a statement made by a person lawfully sworn in England for the purposes of judicial proceedings, in another part of His Majesty’s dominions; or in a British tribunal lawfully constituted in any place by sea or land outside His Majesty’s dominions; or in a tribunal of any foreign state, shall, for the purposes of this section, be treated as a statement made in a judicial proceeding in England.

What is the approach of the Police and Crown Prosecution Service (“CPS”) to allegations of perjury?

In virtually all Court proceedings there are factual disputes. One party says that one thing happened and the other states the opposite. It follows that one party must be lying and therefore may have committed perjury. There are tens of thousands of cases going through the British Courts system on any given day and it is therefore impossible for the authorities to investigate and prosecute every instance where an individual may have committed this offence. The Police and CPS are therefore highly selective in the type of cases that they prosecute. Prosecution will generally concentrate on criminal proceedings where the effect of the perjury may risk someone’s liberty or result in a guilty person walking free. I have found that the appetite for prosecution will depend on who committed perjury and in what circumstances.

Perjury by a Prosecution Witness

If a prosecution witness lied to protect their own interests and the perjury did not affect the defendant’s case, then they are unlikely to be charged. If, however, the prosecution witness’s perjury resulted in a wrongful conviction of the defendant then that witness is much more likely to be pursued by the CPS.

The sentence can be severe if the impact upon the victim (usually the defendant) justifies it. In R v Beale [2019] EWCA Crim 665, [2019] 2 Cr App R 19 (194) a women accused multiple individuals of rape and perjured herself while giving evidence in trials against those accused. One of the men had already served nearly three years in prison, another was on bail for two years while the case was ongoing and the third fled the country to avoid prosecution. She was sentenced to ten years’ imprisonment. The Court of Appeal stated that the sentence was not excessive due to the incalculable harm that had been caused to the accused.

Perjury by a Defence Witness

If a defence witness committed perjury and the defendant was convicted regardless, and there is no evidence of collusion, then usually the witness will not be charged for perjury. However, if there is evidence of collusion then this may warrant both the defendant and the defence witness to be charged with perjury.

For example, in R v Hall (1982) 4 Cr App R (S) 153 the court imposed a sentence of three months’ imprisonment against an elderly women who gave false alibi evidence at a magistrates’ court regarding a man charged with assault occasioning actual bodily harm.

If the defence witness committed perjury and the defendant is acquitted, but there is no evidence of collusion, there usually would not be enough evidence for the witness to be charged with perjury. However, if there is evidence of collusion and the perjured evidence is material to the case then a prosecution may be pursued.

Perjury by a Defendant

If a defendant gives perjured evidence but regardless is subsequently convicted, then the perjury may not be pursued unless a conviction for it would substantially increase the sentence the defendant already faces for the primary offence. The CPS will also consider the premeditation of the perjury and the significance of the perjury committed.

If the defendant gives perjured evidence and is acquitted, wholly or partly because of the perjured evidence, then it is likely that they will be charged. It is the task of the defence counsel to argue that the perjured evidence was not material or not known or believed to be false by the defendant when it was stated.

Unusually, perjury may occur in a manner unrelated to the crime charged. For example, in R v Healey (1990) 12 Cr App R (S) 297 the Defendant appeared before the magistrates’ court in relation to an unpaid fine. He gave evidence on oath that he was employed and stated that the fine could be recovered by an attachment of earnings order. This evidence was untrue and the Defendant was found to have committed perjury.

What is the sentence for Perjury?

The offence of perjury carries a maximum penalty of seven years imprisonment and/or a fine. Aiding, abetting or inciting an offence of perjury is also an indictable offence subject to the same maximum penalty. The courts take this offence particularly seriously as it is perceived as undermining the administration of justice.

Conclusion

Throughout my career I have seen first-hand the desire of the CPS to make an example of individuals they perceive to be wasting police and court time. It is essential that if someone is accused of perjury, whether charged or not, they immediately seek expert legal advice. I have also found that it is often possible to avoid prosecution in cases of alleged perjury or even to persuade the CPS to accept pleas to less serious offences. This will obviously depend upon the circumstances of each case.

Quentin Hunt accepts instructions either through solicitors or directly from members of the public. If you find yourself accused of such an offence you may contact Quentin for a free, no obligation conversation about your case.