A LITTLE OVER TWO YEARS AGO I was invited to be part of a radio show discussing proposals that the oath taken in the Magistrates Courts be simplified (proposals that were later abandoned).
Anyone who has ever seen a courtroom drama will have seen that before a witness gives evidence they have to use a form of magic words so that those listening – be it the judge, the jury or magistrates – know that they have promised to tell the truth. The oath, or affirmation for the godless and those who don’t want to swear on their holy book, is meant to be binding on the conscience of those taking it. There is a dizzying array of oaths that can be taken in court. To give a small selection witnesses can swear on the Old Testament, the New Testament, the Koran and the Bhagavad Gita. I haven’t yet seen a witness being sworn on a copy of L Ron Hubbard’s Dianetics but that may only be a matter of time. There are other oaths, or promises, for child witnesses. Interpreters have yet their own oath, and the oath taken by a jury1 being sworn is different again.
The proposal being discussed appeared to me to be a modest one. Simply have one promise, secular in nature, to tell the truth. On the show I was against the well-known defender of the rich and famous, Mr Loophole himself, Nick Freeman. He was of the view that any dilution of the oath would be catastrophic. If people didn’t swear on their holy book of choice then there would be no reason for them not to lie in court, and then where would we be?
I pointed out that all witnesses swear an oath or affirm and that regardless of the form of words used a truthful witness will tell the truth and a liar will lie. For example in a criminal trial a witness might be sworn and say the defendant stabbed them in an unprovoked assault. Later in the trial the defendant will give evidence, make the exact same oath and claim he was attacked by the witness and only acted in self-defence. They can’t both be right: one has lied on his oath. The oath taken by one of them was meaningless.
I also recounted an appeal I was involved in where a young Muslim man was accused of joy riding (the technical term being taking a conveyance without the consent of the owner, admittedly not quite as zippy a term!). He said he wasn’t responsible because he was attending mosque at the time and it must therefore have been a case of mistaken identity. In support of his alibi he called the imam of the mosque. I was a little surprised when the imam came to take the oath. Rather than swear on the Koran, he affirmed. Now you might have expected that an imam would be well aware of whatever religious strictures there were in order to swear on his book. For example there is a requirement for ablutions. Those ablutions could certainly have been accommodated at the Court hearing the appeal.
It transpired that this was not the first time this issue had arisen. There have been other occasions where apparently religious people have been cross-examined on their oath or affirmation. The Oaths Act 1978 provides the relevant statutory basis. The first case, R v Chapman2, came a year later. That appeal was on the basis that an important witness hadn’t held the Bible in his hand when giving evidence, as the Act required him to. The appeal failed, the Court of Appeal ruling that the oath was valid if taken in a way binding and intended to be binding upon the conscience of the witness. The next important case was R v Kemble3, which seemed to have direct relevance to the issue I was facing. In that case the key witness, a practicing Muslim, affirmed. The defendant was convicted and appealed. The Court of Appeal heard expert evidence from a Professor Yagub-Zaki that:
“… no oath taken by a Muslim is valid unless it is taken upon the Koran, and moreover taken upon a copy of the Koran in Arabic. A translation into English or into any other language will invalidate, so to speak, the book so far as the oath is concerned under these strict religious tenets. There are also many sub-rules which govern the taking of oaths by persons of the Muslim faith, according to the Professor. For instance, a woman who is menstruating, and therefore considered to be unclean, cannot take a valid oath upon the Koran.”
Despite hearing that expert evidence, and purporting to accept it unreservedly, the Court of Appeal went on to ignore it. They looked simply at the statute and ruled that a lawful oath does not depend on religious intricacies. The question was simply: is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, is it an oath which the witness himself considers to be binding upon his conscience?
You might have thought then that it would be permissible to ask a witness whether the oath or affirmation taken was in fact binding. Well, the answer is: “not really”. In R v Mahmood4 a number of defendants were on trial for drugs supply. One affirmed before he gave his evidence. His own counsel later, and rather foolishly, asked if he was a religious man. The defendant replied that he was, which unsurprisingly prompted to judge to begin questioning him as to why he had chosen to affirm. The defence applied to discharge the jury. The judge refused, but gave a direction to the jury to ignore his questioning about the affirmation. The defence appealed. They were unsuccessful but the Court of Appeal had this to say:
“It was unwise for the judge, in the presence of the jury and without any prior discussion with counsel, to have asked the questions that he did. Evidence given on affirmation stood on an equal footing with … evidence given on oath. The important point was that the witness should consider himself bound by his conscience to give truthful evidence to the best of his knowledge. It was generally accepted that, without proper cause, counsel should not seek to explore why a witness had affirmed rather than taken an oath. If there was cause, any proposed questions were not to be asked without the leave of the judge, obtained in the absence of the jury.
I didn’t, in fact, cross-examine the Imam on his choice to affirm. However the bench hearing the appeal were unimpressed with his evidence, concluding that he must have lied. The appellant’s conviction was upheld. We might therefore have to tread very carefully around the validity of any particular witness’s oath or affirmation, but in giving evidence appearances matter a great deal.
1 I’m always heartened when a juror chooses to affirm rather than swear on a holy book. To me at least it demonstrates that they have a capacity to examine evidence and reject unsubstantiated claims.
2  Crim. L.R. 42
3 (1990) 91 Cr. App. R. 178
4  EWCA Crim 3107