Monday, September 21, 2020
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the Act”) is now in force. It was introduced by the Irish Government in response to the challenges posed in the wake of the COVID-19 pandemic and seeks to meet the immediate difficulties faced in civil and criminal proceedings.
Chief among the provisions introduced by the Act are the following:
Statements of truth and the move away from affidavit evidence
A most welcome provision of the Act is the introduction in Section 21 of a ‘statement of truth’ as an alternative to sworn affidavits and statutory declarations in civil proceedings as governed by the Oaths Acts 1838, 1888 and 1909. These statutes require the deponent to hold a religious text and swear the document before God (with provisions for members of other faiths and for making of an affirmation).
Although a long-standing feature of Irish Court proceedings, there have long been calls to abolish the need for affidavits in civil and criminal proceedings. In its 1990 Report on Oaths and Affirmations, the Law Reform Commission (“LRC”) made six main recommendations including that the oath should be abolished for witnesses and jurors, and for deponents filing affidavits in civil or criminal proceedings. It recommended the use of affirmations instead of the requirement that “persons […] have a belief in a supreme being to whom they are answerable.” The LRC explored the various forms of oath appropriate for members of different faiths and pointed out that swearing an oath on a religious text is, in fact, contrary to the teachings of some faiths.
It has also been commented upon that the practice of requiring a witness to indicate their religious faith when submitting evidence is embarrassing, archaic and does not have any place in a modern, pluralist society.
Changes arising from COVID-19
Recently, the unprecedented COVID-19 pandemic has resulted in practical difficulties for deponents filing affidavits. The distancing measures in place mean that the usual practice of attending in person before an independent solicitor or commissioner for oaths to swear a document presented challenges. While the pandemic has undoubtedly hastened these reforms, the provisions of section 21 of the Act are not limited to any interim period or time of emergency and as such, appear to be here to stay.
Section 21 provides that a statement of truth may be made and transmitted electronically, may be signed electronically by the person making it, and ought to:
In practice, it can be assumed that the statement itself would follow a similar format to the manner in which facts are set out on affidavit, with a declaration signed by the person making the statement that the facts contained therein are true and accurate. The provision that a statement of truth may be signed electronically is also welcomed, given the recent move to conducting business, and court business, remotely and the more frequent use of electronic signature.
However, the making of a statement of truth should be taken no less seriously than swearing an affidavit or signing a Statutory Declaration – section 21(4) states that a person who makes a statement of truth without an honest belief as to the truth of that statement shall be guilty of an offence, notwithstanding the law in relation to contempt of court. The statutory penalties for such an offence are severe and, pursuant to section 21(5), are:
While the Act makes provision for statements of truth, section 21(1) explicitly requires amendment to the Rules of Court to give this provision effect. Such Rules would likely set out in detail any additional requirements in respect of format, content, verification and authentication. It is envisaged that the relevant Court Rules will be amended swiftly to alleviate the stress on practitioners and clients alike associated with executing sworn documents.
It would also appear that the Court Rules have a degree of latitude when it comes to the finer details of statements of truth as the Act also provides that Rules of Court may make provision for a statement to be made and transmitted by electronic means “subject to such conditions and exceptions as may be specified by such rules.”
Conclusion and further observations
While the LRC report observed a gradual legislative move towards statutory declarations rather than sworn affidavits, the introduction of statements of truth goes further in removing entirely the requirement for a solicitor or commissioner for oaths. Further, a person’s religious beliefs are now a special category of personal data under the GDPR. Statements of truth will ensure the protection of the dignity and privacy of persons as they will no longer be required to declare their religious beliefs in order to execute a legal document.
However, these reforms apply only in respect of affidavits and statutory declarations in litigation and not other civil matters such as probate or conveyancing. Additionally, jurors and witnesses giving evidence viva voce in Court will still be required to swear an oath in advance of providing such testimony. President of the Law Society, Michele O’Boyle, welcomed the reforms that reflect our diversity and inclusivity today, but noted that the Act does not go far enough. She stated further reforms are necessary and these would be actively pursued.
It is clear that while the Act makes significant progress in respect of the function of the court in these challenging times and beyond, further Rules of Court are necessary to fully implement the statements of truth so they may be invoked in proceedings going forward, and without delay. Further, introducing statements of truth in litigation matters only is insufficient and further legislative reform is urgently needed so that all areas of law can benefit from these advancements in procedure.
Article written with the assistance of Darragh Bollard.