Christopher Smith on swearing in front of the magistrate.
The Magistrates’ Association has had a bright idea. They are consulting on the oath. It’s all a bit old fashioned, isn’t it? All that silly business about taking the testament in your right hand and swearing by almighty God to give evidence that is the truth, the whole truth a nothing but the truth.
That is in itself, of course, a lovely, lawyerly formula, a belt-and-braces way of stopping one telling the truth about some things but not others, or leaving things out so as to distort the truth.
Too many fronts?
Now, it’s worth saying at this stage, before this story gains too much traction, that a spokesman for the Ministry of Justice has declared that they have no plans to change the oath, so this is merely the Magistrates’ Association flying a kite. But it’s bound to add to the feeling that we Christians are fighting on many fronts, and possibly too many fronts. We also know that ‘having no plans’ to do something is not the same as ‘this is never going to happen’. We’ve all become wise to that by now.
Indeed, the oath was called into question in 2001 by Lord Justice Auld, when he wrote a review of the criminal courts system for the Home Office. That led to a White Paper called Justice for All, which fed into a number of Criminal Justice Acts during the 2000s, having recommended some pretty fundamental changes in our criminal justice system, including changes in the law on double jeopardy, the disclosure of previous convictions, and the admission of hearsay evidence. Auld LJ recommended that the oaths and affirmations should be replaced by ‘a solemn promise to tell the truth’.
He concluded that: ‘Today, I suspect many, if not most, witnesses regard [the oath’s] administration as a quaint court ritual which has little bearing on the evidence they are going to give; they will have resolved by then whether to tell the truth or to lie.’
So does it matter? Should we care about whether people can and do swear by almighty God when they get into the witness box? We would have to concede that the court oath sworn by a witness is no longer universal. For a long time, Jews have been able to take the Old Testament and swear the oath, but nowadays a witness may swear by Waheguru or Allah, and hold a Koran or a Bhagavad Gita rather than a Testament. One may also ‘affirm’ if one doesn’t feel tempted by any of the religious oaths on offer, and the affirmation has the same legal effect as the swearing of an oath. It runs: ‘I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.’
The National Secular Society (them again!) maintain that everybody should affirm, and no-one should swear, since the difference draws attention to the affirmers, and makes them vulnerable to having their testimony disbelieved, especially, though not exclusively, by those holding ‘extremely strong, potentially bigoted, religious views’. Indeed, their man feels that ‘there is potential for an unfair verdict’ because of the terrible extra scrutiny under which atheist witnesses must come because of their affirming. Poor things.
They probably don’t realise that there are also some Christians who, taking Jesus at his word, would rather let their yes be yes and their no be no, and who prefer to affirm rather than swear. Perhaps the barrister who commented that ‘the current oath does little more than provide an opportunity to combine blasphemy with perjury’ is right. Surely the defining characteristic of an oath has always been that it is a solemn promise made under God. God would be the
witness, and the swearer would answer before God if he broke it.
And so we come to the Magistrates’ Association, and the proposal before them from one of their number, Ian Abrahams of Bristol. He has been good enough to come up with a suggestion for an alternative: ‘I promise very sincerely to tell the truth, the whole truth and nothing but the truth and I understand that if I fail to do so I will be committing an offence for which I will be punished and may be sent to prison.’ Oh dear. Is an unadorned promise not good enough? Must it be made ‘sincerely’ or ‘very sincerely’? And, of course, it isn’t true that every perjuring witness is prosecuted and punished. Perjury goes on day after day in every court in the land, not least from each defendant who pleads not guilty but who is in fact guilty. Witnesses telling the court that they know perjury is an offence isn’t going to make them more honest. Better, perhaps, to keep people mindful of their obligation to each other under God!
But there is something of a paradox at the heart of this debate, which is that, as Christians, we shouldn’t need to swear oaths at all. The oaths should be for the atheists! We should live as the Lord tells us in the Sermon on the Mount, and let our yes mean yes, and our no mean no; and yet even St Paul, telling the Galatians about his call and conversion, says: ‘I swear before God that what I have written is the truth’. Perhaps we are mindful that sometimes we need to emphasise the truth of what we say to those who would not otherwise accept it as true. Perhaps that is what lies behind the last of the Thirty-nine Articles: ‘that a man may swear when the Magistrate requireth, in a cause of faith and charity’. Do you think the Magistrates’ Association is familiar with Article 39? ND