Criminal law — Perjury — Mens rea — Witness wilfully making statement in judicial proceeding knowing it to be false — Statement material in that proceeding — Material — What knowledge prosecution must prove — Whether prosecution need prove that witness knew or believed the statement was ‘material in that proceeding’ — Perjury Act 1911, s 1(1 )(6 ): R v Millward COURT OF APPEAL, CRIMINAL DIVISION (United Kingdom) (Very Good Case for Defendant Who Got Enough Documentation of Proofs)
R v Millward
COURT OF APPEAL, CRIMINAL DIVISION
 1 QB 519,  1 All ER 859,  2 WLR 532, 80 Cr App Rep 280, 149 JP 545
HEARING-DATES: 14, 25 JANUARY 1985
25 January 1985
Criminal law — Perjury — Mens rea — Witness wilfully making statement in judicial proceeding knowing it to be false — Statement material in that proceeding — Material — What knowledge prosecution must prove — Whether prosecution need prove that witness knew or believed the statement was ‘material in that proceeding’ — Perjury Act 1911, s 1(1 )(6 ).
In order to establish that a person charged with perjury, contrary to s 1(1) of the Perjury Act 1911, has the requisite mens rea for the commission of the offence, the prosecution merely has to show that in the judicial proceeding in which he was a witness he wilfully (i e deliberately and not inadvertently or by mistake) made on oath a statement which he knew to be false or did not believe to be true. The prosecution does not have to show that he knew or believed the statement to be material in that proceeding, for the materiality of the statement is a matter which, by virtue of s 1(6), is to be decided objectively by the judge (see p 861 j, p 862 a b and d to h and p 863 f g, post).
A false statement may be considered ‘material’ within the meaning of s 1(1) of the 1911 Act if it might have affected the outcome of the proceedings (see p 863 a to f, post) R v Lavey (1850) 3 Car & Kir 26 applied R v Sweet-Escott (1971) 55 Cr App R 316 considered.
For the meaning of perjury, and the materiality of a statement, see 11 Halsbury’s Laws (4th edn) paras 938, 941, and for cases on the subject, see 15 Digest (Reissue) 945, 952–955, 8150–8154, 8206–8243.
For the Perjury Act 1911, s 1, see 8 Halsbury’s Statutes (3rd edn) 241.
R v Holden (1872) 12 Cox CC 166, Assizes.
R v Lavey (1850) 3 Car & Kir 26, 175 ER 448, NP.
R v Murray (1858) 1 F & F 80, 175 ER 635, NP.
R v Sweet-Escott (1971) 55 Cr App R 316, Assizes.
R v Ryan (1914) 10 Cr App R 4, CCA.
On 24 November 1983 in the Crown Court at Stafford before Drake J and a jury the appellant, Neil Frederick Millward pleaded not guilty to a charge of perjury, contrary to s 1(1) of the Perjury Act 1911. He admitted that he had made certain false statements while giving evidence on oath as a principal witness in a judicial proceeding, but submitted that he could not be guilty of perjury (i) because the false statements were not made with the mens rea necessary for the commission of the offence, and (ii) because, in any event, the statements were not, within the meaning of s 1(1), ‘material’ to the proceedings. Drake J rejected both submissions. The appellant thereupon changed his plea to one of guilty. He was sentenced to three months’ imprisonment, suspended for one year. He appealed against conviction on the ground that the judge had erred in rejecting both his submissions. The facts are set out in the judgment of the court.
Richard Tucker QC and Simon Brown (both assigned by the Registrar of Criminal Appeals) for the appellant.
Peter Stretton for the Crown.
Cur adv vult
25 January. The following judgment of the court was delivered.
PANEL: LORD LANE CJ, RUSSELL AND KENNEDY JJ
JUDGMENTBY-1: LORD LANE CJ
LORD LANE CJ. In November 1983 in the Crown Court at Stafford before Drake J and a jury the appellant, who was at all material times a police officer, was charged with perjury. He pleaded not guilty. At the close of the prosecution case submissions were made by counsel on his behalf. The judge rejected those submissions. The effect of that rejection was to render the appellant’s proposed defence ineffective. He was thereupon advised, and correctly advised, to change his plea to guilty, which he did.
He was sentenced to three months’ imprisonment suspended for 12 months and ordered to pay £500 towards his legal aid costs. The only issue in this appeal is whether the judge was correct in law in the rulings which he made.
The facts were as follows. On 10 June 1982 the appellant had reason to stop a car containing two Indian men. He considered that certain offences had been committed by the driver. He knew the driver by sight but not by name. The driver gave his name as Parshan Singh. The appellant asked the driver for his driving licence and other documents, but these were not forthcoming and accordingly the appellant served Form HORT 1 on the driver requiring him to produce the necessary documents at the police station. These documents relating to Parshan Singh (hereinafter called Parshan) were produced by Parshan at the police station in due course.
On 14 July the appellant saw Parshan at the police station and told him that he, the appellant, was satisfied that Manjit Singh (hereinafter called Manjit) and not Parshan had been the driver of the car on 10 June and that Manjit had given a false name at the scene (presumably because he held no proper driving licence) Parshan had accordingly also been guilty of deception when he produced the documents in answer to the HORT 1 and when he claimed to have been the driver.
On 10 January 1983 Parshan and Manjit duly appeared at Walsall Magistrates’ Court. Manjit was charged with driving offences and both defendants were charged with offences allegedly committed on 13 June in connection with the production of the driving documents.
Whilst the two Indians were waiting outside the court for the case to be called on, they saw the appellant talking to another police officer, Pc Revelle. Revelle, it should be said, had no connection with the trial of the two Indians at all. Revelle left the appellant, came over to the two Indians and asked to see their driving licences. Parshan produced his. Manjit did not. The incident struck the two Indians as being somewhat odd and they reported it to their solicitor.
The hearing started soon afterwards. The prosecution case depended principally (if not entirely) on the evidence of the appellant to the effect that Manjit and not Parshan was the driver of the car which he had stopped on 10 June. He was cross-examined on behalf of the two Indians to suggest that his identification of the driver was mistaken. He was then asked the following questions:
Q. Have you spoken to Pc Revelle this morning? A. Yes.
Q. Are you aware that Pc Revelle approached my clients this morning and asked to see their driving licences and inspected Parshan’s driving licence, but could not inspect Manjit Singh’s driving licence because he didn’t have it with him? A. No. [That was a lie.]
Q. Did you ask Pc Revelle to see my clients? A. No. [That was also a lie.]
Q. Did Pc Revelle talk to you after he had spoken to my clients? A. No. [That was also a lie.]
Q. Is it not the case that you asked Pc Revelle to see my clients so that you could find out which one was Manjit Singh and which one was Parshan Singh because you were not sure? A. No.
Q. [This was in re-examination.] Has there been any sort of conversation between you and Pc Revelle even remotely resembling that suggested to you? A. No. [That also was a lie.]’
The matter was investigated. The appellant eventually admitted the lies and the charges against the two Indians were therefore quite properly dropped.
During the subsequent inquiries the appellant gave as his reason for enlisting the help of Pc Revelle that he suspected Parshan and Manjit were going to try in some way to deceive the magistrates by switching their identities. It seems that there was some basis for that suspicion. He wanted to be sure who they were saying they were on that particular day. When questioned he panicked, hence the lies.
The submissions made to the learned judge were twofold: (1) that there was no prima facie case that the admittedly false statements were made with the requisite guilty mind and (2) that in any event the false statements were not ‘material’ to the proceedings. As already indicated the judge rejected both submissions. These submissions have now been repeated before this court.
The basis of counsel’s first submission is that the word ‘wilfully’ requires proof by the prosecution of knowledge or belief by the accused man that the question asked and the answer to be given are material. No offence is committed, it is submitted, if a person makes a statement even though he knows it to be false and even though it is in law material, if he does so in the honest though mistaken belief that it is not material in that proceeding. The appellant, it is suggested, believed or may have believed, that the lying answers that he gave were immaterial to the proceedings and if so, it would follow that no offence would have been committed. In other words the submission is that the prosecution must prove not only that the false statement was made with knowledge of its falsity or lack of belief in its truth, but also that the appellant knew or believed that the false statement was material in the proceeding.
Counsel for the appellant concedes that he has no authority directly bearing on this problem and that this is a point which does not seem to have occurred to anyone in the past. However that is no reason on its own for rejecting the submission.
It does not seem to us that as a matter of construction the words of s 1(1) of the Perjury Act 1911 can properly bear the meaning which counsel seeks to ascribe to them. If Parliament had intended that result, it would have been simple to say so, for example by providing that if any person sworn as a witness in a judicial proceeding wilfully makes a statement which he knows to be material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of the offence. Indeed words to this effect can be found in s 1A of the Perjury Act 1911, which was added by Sch 1 to the Evidence (Proceedings in Other Jurisdictions) Act 1975. It is noteworthy that under s 1A(b) of the Perjury Act a person giving testimony which is false in a material particular commits an offence if he does not believe the testimony to be true whether or not he knows of its materiality. So, when setting the standard in 1975 for those giving evidence otherwise than on oath, Parliament did not recoil from saying that the materiality of the false statement was something which, at least on occasions, could be viewed objectively.
When seeking to discover the intentions of Parliament in their use of the word ‘wilfully’, it is perhaps instructive to look at s 1(6) of the 1911 Act. This provides as follows:
‘The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.’
Looking at s 1 of the Act as a whole, it is clear that the question to which s 1(6) refers can only arise out of s 1(1). If that subsection means that a statement is only material when the person making it believes it to be so, then s 1(6) is meaningless. It would be surprising, to say the least, if Parliament intended to say that it was for the judge to decide if the statement was in fact material, and then for the jury to decide if the person making the statement was aware of the materiality. In other words it seems to us to be unlikely that Parliament should have expressly provided that the question of materiality should be decided as a matter of law by the judge without stating in terms, if such is what they intended, that it would be for the jury to decide whether the defendant believed the statement was material.
Counsel for the appellant did invite our attention to the construction which other courts and some academic writers have attributed to the word ‘wilfully’ when it has been used in connection with other offences such as obstructing a police officer in the execution of his duty (see s 51(3) of the Police Act 1964). We have carefully considered the various authorities to which our attention has been invited but we do not derive assistance therefrom.
In our judgment the use of the word ‘wilfully’ in this section of the 1911 Act requires the prosecution to prove no more than that the statement was made deliberately and not inadvertently or by mistake.
The second submission is that the lying statements made by the appellant were not material in the proceeding before the justices. Counsel for the appellant contends that it is the materiality of the truth, if told, which is the question to be decided and that it is only where the truth, if told, would have affected the decision of the magistrates that the requirement of materiality is satisfied. Here again he cites a number of decisions which he concedes, and we agree, provide examples rather than guidance: for instance, R v Murray (1858) 1 F & F 80, 175 ER 635 and R v Holden (1872) 12 Cox CC 166.
He also draws our attention to R v Sweet-Escott (1971) 55 Cr App R 316. This was a decision at Devonshire Assizes by Lawton J on the question of materiality in a case brought under the same section of the 1911 Act. He has this to say (at 320–321):
‘What then is the principle upon which the judge should draw the line? . . . The question arises whether this cross-examination would have affected the decision of the Okehampton Magistrates to commit Miss X for trial had this defendant admitted that he had had those convictions. In my judgment, it is inconceivable that they would have refused to commit because over twenty years before as a young man he had got into trouble . . .’
This passage is cited by counsel for the appellant as support for his contention that a statement is only material if the truth would have affected the outcome and not if it merely might have done so. Lawton J was plainly not concerned with that particular distinction in the case he was deciding.
The matter in our judgment was correctly stated by Lord Campbell CJ in R v Lavey 3 Car & Kir 26 at 30, 175 ER 448 at 450, where he directed the jury as follows (it should be noted that this was of course before the provisions of s 1(1) and (6) of the 1911 Act came into existence):
‘You can, I think, have no doubt that she was tried at the Central Criminal Court, and on the question, whether what she falsely swore was material or not, you will consider whether her evidence in this respect might not influence the mind of the judge of the County Court in believing or disbelieving the other statements she made in giving her evidence . . .’
Nor do we subscribe to the view that it is the materiality of the truth, if told, which is in issue, though that in some cases may help to throw light on the materiality of the false statement. The section is clear. It is the statement which is made which must be material, in this case the denial that the appellant had enlisted Pc Revelle to make inquiries of the Indians. Whatever may have been the true reason for that request, the lies told effectively brought to a halt that line of cross-examination, which undoubtedly went to the heart of the case, namely the appellant’s expressed belief that the driver had been Manjit. The fact that further cross-examination was prevented might very well, it is clear, have affected the outcome of the case. Even looked at as the appellant asked that we should, the answer would remain the same. The truth if told would have entailed the admission that the appellant was indeed making inquiries about the respective identity of the two Indians. Whatever explanation he might have given for this would not alter the fact that the admission itself might very well have affected the justices’ determination of guilt or innocence.
In our judgment in cases under s 1(1) of the Perjury Act 1911 the prosecution have the burden of proving to the requisite standard the following matters: (1) that the witness was lawfully sworn as a witness (2) in a judicial proceeding (3) that the witness made a statement wilfully, that is to say deliberately and not inadvertently or by mistake (4) that that statement was false (5) that the witness knew it was false or did not believe it to be true (6) that the statement was, viewed objectively, material in the judicial proceeding.
This last requirement is, by virtue of s 1(6) of the 1911 Act, a matter to be decided by the judge.
In our judgment the decision of the judge in the present case was correct and this appeal must accordingly be dismissed.
Director of Public Prosecutions (for the Crown).