In response to the difficulties COVID-19 creates for normal business practices, a suite of legislation has been passed by government to address these challenges. From the courts’ perspective, the move to remote working has brought to light the urgent need for a modern, technology-friendly justice system. The recently enacted Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Act) aims to facilitate, among other things, the remote working of the courts by providing for increased availability of electronic filing, the expansion of video link evidence, and remote hearings of appeals. The Act introduces both temporary measures to help the courts during the coronavirus pandemic as well as long-term reforms of the justice system.
Interestingly, one provision in the Act, the introduction of “statements of truths”, has nothing to do with COVID-19 but will have significant impact on legal practice from now on.
Traditional Forms of Swearing Documents can now be Replaced by Statements of Truth
From 21 August 2020, where evidence is to be given in civil proceedings by way of affidavit or statutory declaration, the deponent (the person signing the document) can now, if they wish, make what is called a “statement of truth” instead of the traditional religion-based oath.
Up to now, affidavits and declarations require the deponent to swear or declare to the accuracy or truth of the contents of the particular document. This is done by swearing or declaring a religion-based oath in the physical presence of a Commissioner for Oaths or a practising solicitor. A non-religious deponent can make what is known as an affirmation instead of an oath. The affirmation does not mention a higher being, but it exposes a deponent’s lack of religious belief by virtue of the fact that the deponent has chosen to affirm rather than swear on the document.
In contrast, a statement of truth is a simple non-religious statement confirming that the facts stated in the document are true. This can be done remotely without having to appear before a solicitor or Commissioner for Oaths. The statement of truth can be in electronic form too, which ties in with the general move by the courts towards electronic filing.
Conditions and exceptions to the use of statements of truth may be specified in the enabling Rules of the Courts, so we could see some potential limitations on the use of statements of truth when the enabling rules are introduced.
As a replacement to swearing before a higher being, the statement of truth must state that the person making the statement has an honest belief that the facts as stated are true and it must be signed by the person making the statement (electronically or otherwise as permitted by the Rules of the Courts).
Penalties for Breaches
It is a criminal offence to make a statement in a statement of truth without an honest belief as to the truth of that statement.
The possible penalties for committing this offence are a fine up to a €5,000 and/or imprisonment up to 12 months (on summary conviction) or a fine up to €250,000 and/or imprisonment up to 5 years (on conviction on indictment).
Where has this Change come from?
The Law Society has campaigned for years on the need to modernise the oaths and affirmations system. The Law Reform Commission (LRC) published a report in 1990 advocating for the abolition of religious oaths entirely. Although largely ignored at the time, the LRC outlined many reasons why the oath is unsatisfactory, and its report noted that many forms of oath are “at best embarrassing and at worst offensive”. A very significant concern raised is the risk that a juror or a judge might be prejudiced against a witness who affirms or who refuses to take an oath. The overarching message from the LRC recommendations is that there should be a universal and simplified procedure which would place all persons on an equal footing. While the LRC’s 1990 report was published at a time when Ireland was still predominantly a faith-based society, that is no longer the case. As Michele O’Boyle, President of the Law Society rightly said recently, “requiring a person to either declare one’s religious conviction, or lack thereof, is, by any standard entirely inappropriate in a progressive, 21st century legal system”.
Does the Statement of Truth lend itself to the Making of Dishonest Statements?
A peculiar argument, but one that has been raised frequently is: if a deponent does not swear or declare on a religious oath, what is preventing them from making dishonest statements? The short answer is “penalties” and Section 21 of the Act has them covered. A perjurer, be they religious or not, is not going to be dissuaded from committing perjury by the mere requirement to swear a religious oath. It is up to the legal profession to identify and challenge a dishonestly made statement to the court and, from our own experience, we are rather good at doing that!
There is an obvious gap in the Act as it does not cover oral evidence given to a court. Jurors and witnesses giving oral evidence in court must still swear a religious oath or make an affirmation. It is hoped that the use of statements of truth will become widespread and will lead to a wider overhaul of the oaths and affirmations system to accurately reflect the diversity and inclusivity of Irish society.
For now, just remember that if you or your client are not comfortable swearing or affirming an affidavit or declaration, most situations will allow you to make a statement of truth. The legal profession is waiting for new Rules of the Courts to be published which will cover the practice and procedure for making statements of truth. Hopefully, they will be available soon.
Contributed by Rebecca MacCann