I swear that the current procedure for taking oaths in court needs reform

REX/Courtesy Everett Collection
By David Allan

Do you object to swearing an oath on the Bible? Sorry, I hope that question didn’t put you off your stride when settling down to read this article. It’s the same question witnesses are asked when they’re about to give evidence in criminal trials.

The Magistrates Association recently rejected a proposal to abolish this practice. David Pannick QC, writing in the Times last week, took the view that the magistrates got it wrong. I’d have to say I agree.

At present, the Oaths Act 1978 s 1 requires that witnesses take a copy of the New Testament, or Old Testament if they are Jewish, in their uplifted hand and say “I swear by Almighty God” before repeating a form of words which amounts to swearing that their evidence will be true (they don’t actually say “the truth, the whole truth and nothing but the truth”). According to the law a court officer, usually the usher, must administer this procedure “without question” unless the witness themself objects to taking an oath in this manner. Anyone who does object is permitted to make a solemn affirmation instead. That goes: “I do solemnly, sincerely and truly declare and affirm…”

Only Christians and Jews are specifically catered for in the Act (well, it was 1978). For followers of other religions, the Act simply says their oaths shall be taken “in any lawful manner”. In practice, criminal court rooms usually have three or four religious books, some in velvet wallets to prevent them being touched by unbelievers, on hand to cater for the major religions. There is a series of laminated cards on a string with appropriate variations in the wording of the oath. There is a further variation in the form of words for children.

The problem with this procedure is it’s all a bit complicated, and being asked about one’s religious beliefs by a stranger is the kind of thing that makes most people a bit self-conscious. When the question is put in front of a room full of other strangers, some of them wearing 18th Century style horsehair wigs, and comes at the start of what is expected to be a very stressful experience, it doesn’t exactly help.

The days are long gone, if they ever existed, when the act of swearing on a holy book would compel the truth out of an otherwise dishonest witness. Most witnesses before they step into court will have already made a witness statement to the police, the standard form of which carries a prominent warning that the maker is liable to prosecution if he/she lies in it. In today’s predominantly secular world if the threat of a criminal conviction in this life doesn’t put a dishonest witness off my guess is that divine retribution in the next one won’t either.

I did a case once where a young Asian woman gave evidence of a serious assault by her ex-partner. Defence counsel began his cross-examination by asking whether she was Muslim. She said yes. Counsel asked why then she had begun her evidence by making a solemn affirmation as opposed to swearing on the Koran. She became quite flustered and said she had just gone along with what had been offered to her. She offered to re-swear an oath on the Koran but the damage was done. The defendant was acquitted.

Of course, he might have been acquitted anyway, and there is nothing innately wrong with a person of any religion choosing to make a solemn affirmation instead of a religious oath. My point is that here was someone who had professed to be a Muslim but who, on the face of it, had chosen not to take an oath on her holy book. Rightly or wrongly, and doing my best to read the jury in court that morning, that seemed to carry some weight.

Personally, I’ve little doubt what had happened: the court usher had asked the witness if she objected to swearing on the Bible, she’d said she’d rather not, and he’d asked her if she was happy to solemnly affirm. She said yes, it not occuring to her to enquire whether she could swear on the Koran and that her omission so to do might be held against her in cross-examination.

Perhaps part of my cynicism regarding the efficacy of oaths is the number of people I’ve seen take one and then lie their way through several hours of evidence without batting an eyelid. And it’s not just my anecdotal point of view: every day juries convict defendants, most of whom have given evidence, most of which was on oath. Either those are wrongful convictions or we have to accept that taking oaths does not dissuade people from lying through their teeth.

What is important, however, is to preserve the distinction between answering questions in court, and elsewhere. Only the former gives rise to a conviction for perjury if a witness can be shown to be lying.

In my experience, the present system of oath-taking does little to stop dishonest witnesses. The awkward questions involved are more likely to discomfit an honest witness. For that reason I’d say the Magistrates Association probably was wrong and David Pannick was right. We need something formal yet simple: I’d suggest a single “oath” or formal promise for all witnesses regardless of faith. But whatever form of words is used, I’m afraid one thing is certain: as long as there are courts there will be people lying in them.

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