Big little lies – Criminal liability for giving false evidence

A landmark decision in the UK High Court handed down early last year found serious allegations of ongoing fraud and forgery by the defendant: COPA v Wright [2024] EWHC 1198 (Ch). A follow up judgment, COPA v Wright [2024] EWHC 1809 (Ch), highlights the potential ramifications for individuals who knowingly mislead and deceive the Court in order to advance their position in legal proceedings.  Both judgments arose out of a dispute involving an alliance of cryptocurrency companies and groups, and Dr Craig Wright, an Australian who claimed to be the inventor of Bitcoin (together, COPA v Wright).

Perjury is a serious criminal offence in most jurisdictions. It is more than merely ‘lying’ or ‘misremembering’; for example, if a person deposes to the details of a conversation in a particular form in one affidavit, however relays or testifies to different details of that same conversation at a later date, that is not necessarily perjury without something more. A person commits perjury when they knowingly and willingly deceive the Court.

In COPA v Wright, Dr Wright claimed to be the real person behind the individual, ‘Satoshi Nakamoto’ (Nakamoto), who is said to be the creator of Bitcoin in addition to being the owner of various intellectual property and commercial rights relating to Bitcoin and its associated technologies. Dr Wright, the defendant, vigorously maintained for many years that he is Nakamoto and authored a seminal publication known as the Bitcoin White Paper. One major issue of the case was Dr Wright’s character, allegations of forgery of documents that were tendered as evidence to his identity as Nakamoto and the rightful creator of Bitcoin, and legal and other attacks launched by him and by others on his behalf against critics.

The Court found that Dr Wright lied to the Court repeatedly and extensively.  The Court considered that most of his lies related to the documents he forged to support his claim, and that all of the lies told and forged documents prepared, were in support of a wider falsity – his claim to be the true Satoshi Nakamoto. The forgeries were numerous and produced over a significant period of time, including during the trial itself.

The Court also had regard to Dr Wright’s character as an aggravating factor to the severity of his fraud, including that he had made highly aggressive threats to people who challenged his assertion that he was Nakamoto, threats of legal action and actual litigation based on his false claims including two defamation proceedings which occupied vast Court resources, and in which he made the same fraudulent claims and tendered the same forgeries as evidence.

The Court was so convinced of Wright’s forgery and fraud, and so impressed with the need to make this finding known at the first opportunity, that Justice Mellor declared the Court’s findings as to the Identity Issue at the conclusion of closing submissions on the last day of trial.  As set out at [7] in the main judgment by His Honour:

However, at the conclusion of closing submissions I felt able to and did announce the result of the Identity Issue, namely whether Dr Wright is the pseudonymous Satoshi Nakamoto i.e. the person who created Bitcoin in 2009. Having considered all the evidence and submissions presented to me during the Trial, I reached the conclusion the evidence was overwhelming. At that point, I made certain declarations (because I was satisfied they are useful and are necessary to do justice between the parties), as follows:

7.1.       First, that Dr Wright is not the author of the Bitcoin White Paper.

7.2.       Second, Dr Wright is not the person who adopted or operated under the pseudonym Satoshi Nakamoto in the period between 2008 and 2011.

7.3.       Third, Dr Wright is not the person who created the Bitcoin system.

7.4.       Fourth, Dr Wright is not the author of the initial versions of the Bitcoin Software.

Among their other proposed orders, COPA requested that Dr Wright be referred to the Crown Prosecution Service (CPS) for criminal prosecution of his fraudulent conduct, arguing the aim of the relief sought was to bring an end to the “campaign of dishonesty which has been pursued for a decade for the purpose of advancing false claims, threatening and suing others with a view to significant financial and commercial gain.”

Despite Dr Wright’s counsel arguing that the Court’s function is not to punish or exact revenge, which Justice Mellor noted, Dr Wright’s fraud was so serious that His Honour agreed that a referral was necessary. His Honour stated that “Dr Wright’s sinister and mendacious campaign to establish himself as Satoshi over many years and involving wholescale lies and forgery requires an extraordinary response.”

To date, no charges have yet been filed by the CPS as a result of this referral.

Australia and perjury

Similarly in Australia, perjury is also a criminal offence. Under s 338 of the Crimes Act 1900 (NSW), a person can be prosecuted for perjury by the Director of Public Prosecutions, at the direction of the Attorney General, or by any other person with the leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. If it is impracticable or impossible to apply for leave in accordance with this section, the prosecution may be instituted with leave of the Supreme Court.

In deciding whether to grant leave to prosecute allegations of perjury, the Court will have regard to whether there is a reasonable prospect of conviction by assessing whether the evidence presented shows that the accused knowingly made a false statement on oath concerning a material matter in connection with a judicial proceeding. It was noted in Pritchard v Fryer [2020] FCA 933 that decisions to grant leave are also influenced by the Court’s desire to discourage and prevent vexatious prosecutions and ensure that the judicial officer who heard the relevant proceedings is best positioned to determine the merits of the application.

The case of COPA v Wright highlights the gravity of perjurious conduct and the equally serious consequences that the Courts may impose on individuals who commit the offence of perjury. To ensure justice is achieved, in Australia, the Court must carefully consider the evidence, the likelihood of a successful conviction, and the broader public interest in preventing frivolous or vexatious prosecutions, when determining whether to grant leave to prosecute for perjury.