A decision is expected later this year on whether to bring a perjury prosecution over new evidence dramatically withdrawn on the eve of Conor McGregor’s failed appeal against a civil jury finding that he raped Nikita Hand.
Should the Director of Public Prosecutions (DPP) decide to prosecute, it will mark only the second prosecution under a 2021 perjury law and just the sixth prosecution for perjury in the past decade.
The new evidence is being investigated by gardaí for possible perjury. On foot of the investigation report, the DPP will decide if there is any basis to bring a prosecution.
Ms Hand was awarded €250,000 damages by a High Court jury last November when it found Mr McGregor assaulted her in Dublin’s Beacon Hotel on December 9th, 2018. Last month, he was ordered to pay her legal costs, estimated at more than €1.5 million, after his appeal against the jury finding was dismissed.
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The Court of Appeal agreed to refer the withdrawn evidence and related material for consideration of possible perjury.
It includes sworn statements by Samantha O’Reilly and her partner Steven Cummins, who lived across the road from Ms Hand in Drimnagh, Dublin, for a time. Ms O’Reilly claimed that from a room in her house, she heard and saw what appeared to be a physical altercation between Ms Hand and her then partner, Stephen Redmond, on the night of December 9/10th 2018.
That evidence, Mr McGregor claimed, bolstered his insistence he was not responsible for extensive bruising on the body of Ms Hand, noted by a doctor on December 10th 2018.
In a replying affidavit, Ms Hand described the neighbours’ claims as “lies” and said Mr Redmond never assaulted her during their relationship.
Just one prosecution has been taken to date under the Criminal Justice (Perjury and Related Offences) Act 2021, which made perjury a criminal offence.
The Office of the DPP told The Irish Times that prosecution had resulted in a conviction but said it could not disclose details of the case.
The DPP has brought five prosecutions for perjury, including that under the 2021 Act, over the past decade. Before the 2021 Act, perjury offences were prosecuted under common law.
Of the five prosecutions since 2015, three resulted in a conviction, one in a decision not to prosecute further because the suspect had died, and one is outstanding.
Much of the motivation for the 2021 Act, aimed at making it easier to prosecute for perjury, was to help in bringing down insurance costs by deterring false or fraudulent claims.
Senior counsel Ronan Lupton said the Act sets out “in clear terms” what perjury is – the giving by a person of a “material” statement in evidence or on affidavit that they know to be false.
The Act introduces, for the first time, an offence of “suborning” (inducing) perjury, he noted. That involves procuring, persuading, inducing or otherwise causing another person to commit perjury, knowing or being reckless whether the other person is committing that offence.
The Act provides for penalties of up to 12 months for conviction on a summary offence, and up to 10 years for conviction on indictment.
A legal source with experience in prosecutions over alleged false evidence, who did not wish to be identified, believes the difficulty of bringing home successful prosecutions in such cases has contributed to a reluctance within the DPP’s office to prosecute them.
Whether that will change under the new Act remains to be seen, he said. “The risk of failure, and the potential costs involved in some cases, are important factors to weigh up. In some cases, every fact could be put at issue. Proving a deliberate lie is a difficult hurdle for any prosecutor.”
Proving the offence of suborning perjury presents even more difficulty, he added.
In its 2022 post-enactment report on the 2021 Act, the Department of Justice said some people have “all too frequently” deliberately lied in court or misrepresented the truth in affidavits and the Act was developed to create “significant deterrents” against that.
The Act was envisaged as part of a package of government measures dealing with insurance issues, insurance fraud and exaggerated claims, it said.
The report noted that, while the offence of perjury was already provided for in common law, the historic levels of investigations and prosecutions for perjury were “low”.
It was satisfied that the Act “will play an important role in providing a clearer legal framework through which our law enforcement authorities may be guided in decisively taking action in the area of perjury” and expected it will, over time, have an impact on the numbers of complaints, investigations and prosecutions.
