The Mail and the Telegraph report that at its forthcoming AGM the Magistrates’ Association is to debate a proposal to remove the possibility for witnesses and defendants to swear a religious oath in court: instead, says the Telegraph, “all those giving evidence in court would make a secular pledge” – presumably along the lines of the current affirmation – “which it is thought would make it fairer and more relevant for people to help them understand the importance of what they are saying”.
If agreed by the Association the proposal will be put forward to the Ministry of Justice. The proposer, Ian Abrahams, a magistrate from Bristol, told the Mail on Sunday,
“More and more I see people shrug their shoulders or say ‘whatever’ when asked to take it. Other witnesses think it’s wrong to swear on a holy book, and make an affirmation instead. I’m suggesting we take holy books out of the process. Instead, people will have to show they understand they could be sent to prison if they don’t tell the truth”.
The Mail on Sunday reported a spokesman for the Ministry of Justice as saying that “We have no plans to change the arrangements for swearing an oath or making an affirmation in court, which have worked well for many years and still do”.
Reaction has been largely predictable. Michael Nazir-Ali, for example, former Bishop of Rochester, talked of a slippery slope towards the increasing secularisation of society and asked “where will it end – with the Coronation Oath?”, suggesting that choice was being restricted “in the name of tolerance and secularisation”. And evidently the MoJ is not going to buy the idea anyway.
However, the proposal is not simply going to go away. In January, Sean Templeton, of the Scots Bar, posted about the issue on the National Secular Society’s blog, suggesting the introduction of a simple oath in the Scottish courts that would be acceptable to everyone, regardless of belief or religion – his suggestion being, “I swear that I will tell the truth, the whole truth and nothing but the truth”. He argues that the problem with affirmation is that “it sets a witness out and it instantly draws a great deal of attention to the fact that the person will not swear to God”.
I confess to a certain degree of sympathy with Templeton – but his simple oath would still probably not satisfy everyone. Quakers (of whom I am one) and, possibly, others find the whole idea of “swearing” abhorrent. One of the four traditional testimonies to which Friends have held throughout the history of the Society is the testimony to truth and integrity; and Friends object not merely to swearing by God but to swearing simpliciter:
“Friends believe that their word should be accepted at any time among all persons and thus [uphold] the right to stand simply on their own word rather than swearing on the Bible or before God…” [Quaker Faith & Practice 20.50]
The form of the affirmation set out in the Oaths Act 1978 – “I solemnly, sincerely and truly declare and affirm that I will tell the truth, the whole truth and nothing but the truth” – chimes with that position. But I suspect that, for many Quakers, using the words “I swear” would not. And there is a wider theological problem with oaths. The Sermon on the Mount in Matthew 5 records Jesus as saying:
“But I say unto you, Swear not at all … But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil”.
Which is pretty unequivocal – and which is why, presumably, the last of the Thirty-nine Articles (Of a Christian Man’s Oath) attempts to tackle the problem head-on:
“AS we confess that vain and rash Swearing is forbidden Christian men by our Lord Jesus Christ, and James his Apostle, so we judge, that Christian Religion doth not prohibit, but that a man may swear when the Magistrate requireth, in a cause of faith and charity, so it be done according to the Prophet’s teaching, in justice, judgement, and truth”.
Commenting on Article XXXIX, Dean Jensen, of St Andrew’s Cathedral, Sydney, contends that
“The Christian’s truthfulness will not be increased by swearing, but swearing reassures our hearers that we are telling the truth and gives them something to refer back to when our truthfulness comes under question. There is nothing wrong in swearing an oath when required. The 39th of our 39 Articles is “Of a Christian man’s Oath” handling the question of doing that which Jesus seems to be forbidding. We do not swear because we need to but because our hearers need reassurance”.
I’m not convinced: if the passage quoted from the Sermon on the Mount is indeed an authentic saying of Jesus, then it would appear to admit of no exceptions and Article XXXIX looks like a cop-out.
The ending of the archaic religious oath is obviously sensible. By swearing to god(s), witnesses are telling a big fat lie before they even start.
I don’t feel strongly about it either way – I’m inclined (like the MoJ) to leave well enough alone – except that I would feel extremely unhappy at any reform that obliged me to use the word “swear”.
Earlier today, I was thinking, long, hard, deep and prayerfully, about this very issue. I reached the following conclusions, as to what I would like to be allowed to say, before giving evidence in court, as soon I must, that might reassure the court as to my reliability as a witness.
I would like to say that I undertook, knowing that I was under a legal and moral duty to testify truthfully, to tell the truth and nothing but the truth. In my own case, being a non-Anglican Christian believer, I would like the opportunity to add that I did this aware that I was being watched by the almighty God of ethical monotheism. I accepted that for others, that god was merely an ethical thought experiment, rather than a real, existent deity, and demanded no extra credence from the secular court merely because I believed in God, and another witness didn’t. However, in this particular case, there might be special factors that would enable the court to give extra weight to my evidence, for example if the pleadings included an undisputed allegation that I was sincerely religious. (They do, in my case. I am on trial *because* of my faith.)
I had a problem with the prospect of undertaking to tell “the whole truth”, because there were many things I could say, which I knew to be true, that weren’t relevant to the issues of fact in dispute in the present hearing, or about which I might not be questioned, The court would neither want nor allow me to give that true evidence. I did not want to make a promise in God’s omnipresence, to tell “the whole truth”, potentially getting into an argument later with a judge who wanted me to shut up, because I’d promised to tell the whole truth,and the judge didn’t want the court to *hear* the whole truth that I had to tell, not even that subset of the whole truth I knew that was relevant, but which the judge mistakenly didn’t think was relevant. There might even be truths that I would not wish to tell, because I have a right not to incriminate myself. I might even wish to be “economical with the truth”, in the interests of the Overriding Objective of rules 1 of the CPR or the FPR, so that three days in court need not turn into three weeks.
However, the court could trust me to tell the truth and nothing but the truth, and surely that was all that should be needed. The court could trust me to tell “the whole truth” in the trivial sense that I would not say, misleadingly, that two men had attacked me, when five men had attacked me, which implied that there were ten different unique combinations of two attackers, so it wouldn’t be a lie for me to say that two men had attacked me, since this had happened, in ten different ways.
Courts deal with law and evidence, and religion should not be included. Asking a non-religious person to swear against a god they don’t believe in, does not confirm they will tell the truth.
Having a separate oath for every religion is one option, but surely an oath that confirms they will tell the truth should be used. If they lie, its perjury, and should be dealt with by law. If someone wishes to swear an oath under a religion, so be it, but the law is the law and should not be responsible to any religion.
Speaking as a practising Barrister I would support the abolition of the current oath which does little more than provide an opportunity to combine Blasphemy with Perjury. The suggested replacement
“I swear that I will tell the truth, the whole truth and nothing but the truth”
is almost right but I suggest that the words
“I solemnly declare that my evidence to the Court shall be the truth, the whole truth and nothing but the truth”
would deal with Frank’s point about the views of Quakers regarding any reference to “swearing” and would still be a sufficiently formal declaration appropriate for someone about to give evidence.
It’s a very fair point about the oath being an opportunity to combine blasphemy with perjury. The alternative would be simply to scrap the religious oath and use the present form of the affirmation in all circumstances – but I don’t think it’s high on the MoJ agenda.
I should say I was never happy about oaths even before I became a Quaker, principally because swearing an oath seems to be precisely what the Sermon on the Mount tells you not to do.
Pingback: Religion and law round up – 13th October | Law & Religion UK
Is not the primary question, ‘Why the need for witnesses to swear or affirm?’.
Surely it is to make the witness realise and acknowledge that if the truth is not told there is the risk of serious consequences: the Perjury Act 1911. It is not to declare or uphold their belief in God: true or false. If the latter with no apparent consequences. Which in the circumstances is anomalous.
Under the Statutory Declarations Act 1835 an untruth in a written statement under the simple words, ‘I A.B. do solemnly and sincerely declare, that and I make this solemn declaration conscientiously believing the same to be true, …’ carries the risk of imprisonment under the Perjury Act 1911.
As a Christian my preferred wording as a witness would be, ‘I A.B. do solemnly and sincerely declare, that I will tell the truth and if I do not so tell I risk imprisonment.’
The risk of imprisonment is closer in time than the day of God’s judgement! Article XXXIX would be rendered otiose.
Pingback: Can magistrates do away with the oath? | Gavin Drake
Pingback: Religion and law round up – 20th October | Law & Religion UK
Pingback: Can magistrates do away with the oath? – Gavin Drake