Great Expectations

‘It is considered that you must be better educated, in accordance with your altered position, and that you will be alive to the importance and necessity of at once entering on that advantage.’

So said Mr Jagger to Pip in Great Expectations published in 1860 and, like Pip, I am still on the path of lifelong learning which is, for me, one of the delights and privileges of the legal profession.

Charles Dickens did much to raise awareness of important issues of his day and he had a lot to say about the law – and lawyers. One area of law that had been modernised long before Charles Dickens wrote Great Expectations was the law relating to the administration of ‘unnecessary Oaths’ which was done through that great Act of Parliament, the Statutory Declarations Act 1835 (I will just refer to the ‘Act’).

For a long time I have had an itchy feeling that statutory declarations are unnecessary and I have decided now is the time to scratch that itch and share my thoughts.

The Act, dated 9 September 1835, included in its title ‘An act for the more effectual Abolition of Oaths … and to make other Provisions for the Abolition of unnecessary Oaths’ – I am fascinated by the sometimes arbitrary use of capitalised terms in legal writing, by the way, but that is for another day.

The Act included provisions abolishing the need for oaths relating to diverse subjects such as Turnpike Roads, the business of pawnbrokers and some ‘usual practice of the Bank of England’.

There is not a great deal of the Act remaining today but as a busy practitioner I am still stuck with the remnants. What remains requires solicitors, and others, ‘to substitute a declaration to the same effect as the oath, solemn affirmation, affidavit’.

The Act requires the use of statutory declarations in some specific situations, including some relating to the Bank of England. Other legislation requires statutory declarations, including insolvency legislation. There are other situations where statutory declarations are usually used, although there is no legislative requirement, such as when a person is changing their name.

Anybody who is able by law to administer an oath is allowed to administer a statutory declaration too. This includes a solicitor with a practising certificate and a justice of the peace, among others.

The person witnessing the declaration does not need to see the declarant – as they are known – signing the document, but it should be signed before the declaration is administered. The Act does not require the declarant to say anything but there are some usual words the declarant is asked to say aloud – if you have ever been a declarant you may have squirmed when asked to repeat the tongue-twisting ‘I [state your name] do solemnly and sincerely declare’.

It is good practice to ensure that the declarant appears to understand what they are doing (do they have to be sober?!), but there is no duty on the person administering the declaration to read the document – but anyone with good reason to believe that the contents may be false, should not proceed.

The fee for administering a declaration should not be shared – part of the duty of being in public office – but can properly be taken by an employer. The fee for administering a declaration is ￡5 – plus ￡2 for each exhibit referred to in the declaration.

The Land Registry has moved on from the requirement for a statutory declaration. Practice Guide 73 explains the purpose, form and content of a statement of truth. There are standard forms of statement of truth in support of lost or destroyed title deeds and for registration of land based upon adverse possession, among others.

A statement of truth is defined in Rule 215A of the Land Registration Rules 2003 which confirms that the statement need not be sworn or witnessed but must contain a declaration in the following form: ‘I believe that the facts and matters contained in this statement are true’. Land Registry forms that incorporate a statement of truth also include the following warning:

‘If you dishonestly enter information or make a statement that you know is, or might be, untrue or misleading, and intend by doing so to make a gain for yourself or another person, or to cause loss or the risk of loss to another person, you may commit the offence of fraud under section 1 of the Fraud Act 2006, the maximum penalty for which is 10 years imprisonment or an unlimited fine, or both’.

Heavy stuff!

I’ve been asking myself for a long time what is the purpose of a statutory declaration and I have at times gone out of my way to avoid administering them – unless I happen to be going to the pub that evening when the ￡5 fee comes in handy towards the price of a pint.

It bothers me that solicitors are both mistrusted and yet still relied on to administer statutory declarations. I would certainly refuse to administer a declaration if I thought it was not true – that has never happened to me by the way – and I have refused to administer declarations which refer to exhibits that the declarant has not brought with them – in the second case only because, to administer the declaration would be a waste of time and plain stupid. Some solicitors consider that they must check the identity of the declarant but I do not, even if it is considered good practice – if the declarant wants to commit a fraud, that is up to them.

It seems to me that the Land Registry statement of truth contains the necessary ingredients to replace statutory declarations in any situation and I hope you will join my campaign to raise awareness of this ancient, and pointless practice – and I hope that Charles Dickens would approve of my effort.

For those of you in the legal profession surprised at one or two myths I have exploded in in this piece, here is a spoiler alert: in my next piece I will be exploring the subject of Father Christmas and the law.

For those of you who want to remind yourself what a statutory declaration is and how it is used follow this link.

Andrew Carrier is a senior commercial solicitor with Ward Gethin Archer in Ely. The contents of this piece are the writer’s opinion and not those of his firm.