Now then, for those of us in the disputes business, shall we have a little word about, how shall I say … not playing with a straight bat? Dabbling in some sleight of hand? Pulling a fast one? Because, of course, some construction folk have no qualms about doing a bit of ducking and diving when making claims for extra payment. The numbers are matched by the folk who have no qualms about underpaying for work done. Tykes appear on both sides. Lots think it's alright to tell porkies, even if they understand perjury can get you pretty quickly banged up in jail. But the lesson of Jeffrey Archer is much more surprising and subtle than telling fibs in the witness box. Dear me, you can go to jail using much less effort than that; Jeffrey did.
The first surprise in the Archer affair is that his shenanigans were all about a civil dispute. He decided to sue two newspapers for damages for libel. Now, that's not really so different from suing someone for breach of contract. What I mean is that no crime was alleged, no police or charge sheets or Crown Prosecution Service was involved. He had been accused by the newspapers of misbehaving with a prostitute. The date they gave was 9 September 1986. So Archer went about demonstrating that he wasn't misbehaving that night at all.
The second big surprise is that the alibi he concocted was all a waste of time, because the crucial night was not the 9th at all; it was the 8th. The third surprise is that our Jeffrey not only never had to rely on his story but he went to jail for concocting a story, or "proof", for the wrong night.
I do not immediately doubt the truth of daywork sheets, even if the names on them include Michael Mouse, Superman and Rupert T Bear
If you compile a false story such as a claim for defective works or a claim for loss and expense, you do so with intention of perverting the course of justice. Lord Archer coaxed a pal to tell a fib – that they had dinner together on the 9th. That earned Archer two years in prison. Nobody gave evidence to that effect because by the time of the libel trial the date had moved from the 9th to the 8th. So the scam was not even used. Still prison!
Archer concealed the existence of his diary, gave his secretary a blank replacement and got her to fill it in. He then falsely used it against the newspapers in the libel trial, pretending it was genuine – that is perverting the course of justice and four years inside. Then Archer swore an affidavit, and for that he got three years. Then, at the trial, the diary amounted to another piece of perjury and that earned him four years. Total: 13 years to run concurrently, hence the four years.
And when I see the familiar diary these days in a construction industry dispute, I can't help thinking of Archer. Not that I doubt the honesty of the entries, dear me no; I don't start with those thoughts at all. Nor do I immediately doubt the truth of daywork sheets, even if the names of those on them include Michael Mouse, Superman and Rupert T Bear; nor do I doubt that these wonder operatives can work 15 hours per man per day for seven days non counting non-productive overtime. But the author of the diary or daywork sheets might think of Archer. The offence is committed when justice is threatened, even if nothing is produced at a trial or arbitration. But if you do give evidence to an arbitrator or a court and promise on oath to tell the truth but give evidence you know to be false (or even do not believe to be true), you are guilty of perjury. And if it later comes out that it was sleight of hand, you will then be sent somewhere famous – such as the Old Bailey. That's where Archer went and where he got sent down. As for what he was doing on the actual night he was accused of being with a prostitute, the 8th, he apparently had no need to make up any stories at all. He had been having dinner with friends.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.