Wouldn't it be nice if you could find a perfect rebuttal, a perfect test of truth, a piece of evidence which perfectly, completely and utterly negates what a witness has said in court. I have found such a rebuttal. It is a litmus test for perjury.
I have recently discovered a most peculiar fact of law which has been staring me in the face for very many years. The reason, perhaps, that I did not notice it before is that my focus was more on the forensic scientific methods, rather than the lawyerly methods of proving that there has been a miscarriage of justice.
I believe that I have discovered a litmus test of truth which, as far as the law is concerned, is a better proof of perjury than any other test.
I propose to call this test negation by statute or statutory rebuttal.
I shall illustrate the concept with a totally fictitious scenario acted out in England and tried under the criminal laws of that country.
Before the advent of speed cameras and radar guns, somewhere in London, in the early hours of the morning, a young man is driving along and minding his own business when he is stopped by two officers in a police car. They say that they have stopped him for exceeding the speed limit. He thinks it more probable that he was stopped because he is dressed somewhat like a hippie.
They ask to see his licence and MOT, that is to say the vehicle's certificate of road-worthiness. He is not carrying them. They notice that his tax disk has just expired. They arrest him for, in their standard form of words, "failure to furnish adequate proof of address for service of summons".
He is taken to the police station, booked in and then held in a cell "while checks are made". The arresting officers then take him in handcuffs to his home "to check his address".
According to the police, after being satisfied as to his address they then arrested him for possession of cannabis. He then became violent and assaulted the two officers so he was arrested yet again for assault.
In court, the police officer who actually made the original "no address" arrest is asked about the proof of address. He states on oath: "I would have released the gentleman in his own home but for the need to arrest him for possession". The young gentleman claims that the cannabis was planted on him after he was beaten up.
Perjury: a litmus test
It is not often that mere words can prove conclusively and unarguably that a witness was committing perjury, but in all cases like the above fiction there is a perfect test. I shall come to that very soon.
Members of the jury, that is to say my readers, what the officer said before or afterwards is not material to the question of fact to be decided. That question is: did the officer tell the truth about the events which took place in the defendant's home ? Of course, members of the jury, thus far you have no way of knowing who is telling the truth. You may as well flip a coin: it is oath versus oath.
So, members of the jury, I, playing the part of the trial judge in all this, now direct you on the law. I shall skim past the original arrest and cut to the chase.
When is arrest not arrest ?
When a person under arrest is taken to any English police station and booked in, he is, from that moment on, no longer under arrest. He is in police detention, also known informally as police custody. The Act of Parliament governing and defining police detention is the Police And Criminal Evidence Act 1984. Section 118 (2) of that act states that a person who has been taken away from a police station in the custody of a police constable is in police detention. Section 34 (3) of the same act specifies that no person in police detention shall be released except on the authority of a custody officer at the police station.
If at any time before booking in at the police station is completed it becomes clear that the original grounds of arrest no longer apply, the arrestee must be released immediately. Thereafter, if the grounds for the original arrest no longer apply, a detainee may only be released by the custody officer in the last police station in which he was detained.
The arresting officer in the fictitious case told you, the jury: "I would have released the gentleman in his own home but for the need to arrest him for possession". The law, a law which police constables are taught as part of their training, specifically prohibits release away from the police station.
Armed now with that knowledge of law, you know that this officer committed perjury as a matter of law. A significant part of his evidence is rebutted by statute. It is unarguably false.
Members of the jury, the defendant is charged with unlawful possession of a Class B drug. Before you can convict you must be sure about the prosecution case. If you are left in any doubt about the prosecution case you must acquit.
In this fictitious case I have shown how, if a jury is told about the law, false evidence about statutory powers can be perfectly rebutted, merely by reference to the relevant statute or statutes. In the case of a trial by jury, the jury must be presumed not to know the law unless specifically instructed on it by the judge.
If evidence similar to that given by my fictitious constable is given in any English criminal court and the jury is not told of the statute by the judge, then, in my submission, under no circumstances can that conviction be held to be safe.
When a person having statutory powers seeks to rely on a lay jury not knowing the law about their powers it is, in my opinion, the duty of the presiding judge to inform them. If the judge does not inform them then there would appear to be the clearest possible grounds for an appeal. It is inconceivable that an appeal court would accept the truth of a statement which contradicts the clear words of a statute.
When evidence concerning statutory powers is completely rebutted by reference to the relevant statute or statutes, that evidence is unarguably false.
The (fictitious) witness committed perjury q.e.d.
There can surely be no forensic scientific evidence capable of unarguably proving the fact of perjury. It seems to me that this is the one and only criminal law scenario in which a knowledge of law can prove a fact to a higher degree of certainty than can a knowledge of science.
I have posted this article so that all who practice law may come to know of this trick and seek to do justice for any person who may have fallen foul of it.