3.2 Oaths, affirmations and declarations

Key points

• The Oaths Act 1978 permits witnesses the choice between swearing an oath or making a solemn affirmation.
• The degree to which a witness considers their conscience bound by the procedure is the criterion of validity.

The contents of this chapter should assist all judiciary and tribunal chair in:

• ensuring that sworn testimony meets all the requirements of the Oaths Act 1978;
• ensuring that the needs of all court users and witnesses are met with regard to their religious affiliation when giving sworn evidence or making declarations; and
• that witnesses who choose to affirm or swear an oath are treated with respect and sensitivity.

3.2.1 Introduction

• The Oaths Act 1978 makes provisions for the forms in which oaths may be administered and states that a solemn affirmation shall be of the same force and effect as an oath. In today’s inclusive multi-cultural society all citizens, whether or not they are members of faith traditions, should be treated sensitively when making affirmations, declarations or swearing oaths.

• the sensitive question of whether to affirm or swear an oath should be presented to all concerned as a solemn choice between two procedures which are equally valid in legal terms ;
• the primary consideration should be what binds the conscience of the individual;
• one should not assume that an individual belonging to a minority community will automatically prefer to swear an oath rather than affirm;
• all faith traditions have differing practices with regard to court proceedings and these should be treated with respect.

Guidance was given in the case of Kemble:

We take the view that the question of whether the administration of an oath is lawful does not depend upon what may be the considerable intricacies of the particular religion which is adhered to by the witness. It concerns two matters and two matters only in our judgement. First of all, is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and more importantly, is it an oath which the witness himself considers to be binding upon his conscience?

Lord Lane C.J. in R. v. Kemble [1990] 91 Cr.App.R.178 (emphasis added)

In this case a Muslim witness in the criminal trial had previously sworn an oath on the New Testament, although in the Court of Appeal the same witness swore an oath on the Qur’an. He told the Court of Appeal on oath that he considered himself consciencebound by the oath he made at the trial. He added that he would still have considered the oath to be binding on his conscience whether he had taken it upon the Qur’an, the Bible or the Torah. The Court of Appeal accepted his evidence, finding that he considered all those books to be holy books, and thus that he was conscience-bound by his oath. This is despite the fact that in Islamic jurisprudence an oath taken by a Muslim is only binding if taken on the Qur’an.

Since it cannot be assumed that every believer knows all the theological doctrines pertaining to their faith tradition, in the court room the emphasis is upon receiving the live testimony and determining the credibility of the witness on the basis of how much they consider themselves bound by the oath or affirmation. For witnesses who openly profess to be adherents of a particular faith which is scripture-based, the swearing of an oath is a profoundly solemn undertaking. Some extremely strict believers may choose to affirm instead because they believe that swearing an oath is not a procedure to be undertaken in a non-religious context, such as some Orthodox Jews for example.

3.2.2 Holy scriptures

Different faith traditions place varying emphases upon their holy scriptures in the context of their overall belief system. Many faith traditions are oral, or not based on scripture as such, while others, such as Hinduism or Jainisnm equally revere a number of scriptures. For some, there is one central text which is deemed to be the direct word of God and so signifies the actual Divine presence. For all, their books must be handled with respect and sensitivity.

Ritual purity

• Certain faith traditions insist that anyone handling a holy scripture be in a state of ritual purity.
• This ritual purity may be achieved by performing ablutions involving the use of water, or by other means (e.g. the use of incense or earth, which may not be suitable in the court room context).
• A witness may indicate the need to perform ablutions by referring to the ‘need to wash’ or may even specify that they need ‘to wash their hands/face/feet’. An opportunity to use a washroom for this purpose should be given to the witness.
• In certain religious traditions, women who are menstruating or recovering from childbirth would be unable to obtain ritual purity and therefore may prefer to affirm rather than handle their holy scriptures. It is for this reason that it is preferable and good practice for the holy books to remain covered in a separate cloth when not in use and when being handled by court staff so as to avoid causing offence to believers. Needless to say, all handling of holy scriptures should be with the utmost respect, and no holy book should be put on the floor or thrown down.

Other practices:

• Hindu and Sikh witnesses may wish to remove their shoes.
• Jewish or Muslim witnesses may wish to cover their heads when taking the oath.
• Hindu witnesses may wish to bow before the holy scriptures with folded hands before or after taking the oath.
• Witnesses may prefer that the scripture is only touched by the right hand.

These practices should be facilitated, to enable such witnesses to consider themselves most conscience bound to tell the truth.

Great sensitivity is required when a witness indicates a preference to swear an oath on a holy scripture of a faith of which they are not an adherent because their particular holy scripture is not available in court. Even though according to the Kemble criteria that evidence might be acceptable, for the sake of clarity it is preferable that oath taking is upon the appropriate scriptures and if there is any doubt, affirmations are declared.

Good practice by court staff

• Witnesses and jurors should be presented with a choice between the two equally valid procedures of making an affirmation or swearing an oath by court staff, before they come into court .
• If they do wish to swear an oath, witnesses should be informed about the availability of diff e rent scriptures in court, in order to reassure them that asking for a particular scripture is not an inconvenience. They should not be persuaded to swear an oath on the New Testament for the sake of convenience.
• If they indicate a preference to swear an oath, witnesses and jurors should be invited to identify the holy book on which they wish to swear an oath, and if it is not available, they should be encouraged to bring their own copy of the holy scripture to court.
• If it is not possible to obtain the appropriate holy scripture, it is good practice for the witness to be invited to affirm, even if they are willing to swear an oath on the holy book of another religion.
• It must not be assumed that all minority ethnic individuals are practicing adherents of their faith; many consider themselves non-practising/secular.
• Different witnesses from the same faith tradition in any one court proceeding should all be given the choice to affirm or swear an oath, and no assumptions should be made.

3.2.3 Specific practices of the different faith traditions

For more detailed consideration regarding the diff e rent faith traditions please refer to Appendix V.

The most common wording of the oath is:

‘I swear by [substitute Almighty God/Name of God (such as Allah) or the name of the holy scripture] that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.’

The most common wording for making an affirmation is:

‘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.’

Baha’is

• May choose either to affirm or possibly swear an oath. For the Bahai their word is their bond.
• The holy scripture containing the teachings of their Guide is called the Kitabi- Aqdas.

Buddhists

• May choose either to affirm, or possibly swear an oath.
• A form of declaration to Buddhists which starts ‘I declare in the presence of Buddha that . . .’ is erroneous, and should be discontinued.
• Tibetan Buddhists who wish to swear an oath, should be asked to state the form of oath which they regard as binding on their conscience. (In Tibetan practice, oaths are normally taken in front of a picture of a deity, a photograph of the Dalai Lama or any Lama of the witness’ practice, if taken at all.) Sometimes such a witness will take an oath by elevating a religious textbook above their head and swearing by it. If such a witness does not stipulate such a practice and does not have the appropriate book with them, they should affirm.

Christians

• May choose to swear an oath or affirm.
• Their holy scripture is the Bible most often the part that is known as the New Testament will suffice.

Hindus

• May choose to affirm or swear an oath.
• Of their many holy scriptures, the Bhagavad Gita is considered suitable for the purposes of swearing oaths.
• The Bhagavad Gita may be kept in a covered cloth, and the suggested colour is red.
• Questions of ritual purity may arise.

Indigenous traditions

• May choose to affirm or swear an oath.
• Many peoples from Africa, Native Americans, and Aboriginal peoples from Australia maintain their own traditional religious heritage. Making affirmations would be in line with this heritage.
• Some also follow other faith traditions as well, in which case they may choose to swear an oath on a holy scripture.

Jains

• May choose either to affirm, or possibly swear an oath.
• Since there are many diff e rent groupings, no single text can be specified, but some may choose to swear an oath on a text such as the Kalpa Sutra. Sometimes such a witness will swear an oath by elevating a holy scripture above their head and swearing by it. If such a witness does not stipulate such a practice and does not have the appropriate text in court, they should affirm.
• Questions of ritual purity may arise.

Jews

• May choose to affirm or swear an oath.
• Their holy scripture is known as the Hebrew Bible or the Pentateuch sometimes also referred to as the Old Testament.
• The Hebrew Bible may be kept in a covered cloth, and the suggested colour is black.
• Jews should not be asked to remove their head coverings in court .
• Questions of ritual purity may arise.

Muslims

• May choose to affirm or swear an oath.
• Their holy scripture is known as the Qur’an.
• The Qur’an should be kept in a covered cloth, and the suggested colour is green.
• Muslims should not be asked to remove their head coverings in court .
• Questions of ritual purity may arise.

Moravians/Quakers

• May choose either to affirm, or possibly swear an oath.
• A suitable holy scripture is the Bible most often the part that is known as the New Testament will suffice.

Rastafarians

• May choose either to affirm, or possibly swear an oath.
• A suitable holy scripture is the Bible most often the part that is known as the New Testament will suffice.
• Rastafarians should not be asked to remove their head coverings in court.

Sikhs

• May choose to affirm or swear an oath.
• Their holy scripture is known as the Guru Granth Sahib, and a portion of it known as the Sunder Gutka may be suitable for the purposes of swearing an oath in court proceedings.
• The Sunder Gutka should be kept in a covered cloth, and the suggested colour is orange or yellow.
• Sikhs should not be asked to remove their head coverings in court.
• The form of the oath which stipulates swearing by the ‘Waheguru’ is not recommended since the Sikhs believe in swearing an oath before God.
• Questions of ritual purity may arise.

Taoists

• May choose either to affirm, or possibly swear an oath.
• Many Taoists in the UK are members of the Chinese community and many of them would also consider themselves to be adherents of Confucianism.
• Both Taoism and Confucianism permit the membership of and participation in the communal practices of other faith communities, so many may also be Buddhists/Christians/Muslims.
• The Taoist holy scripture is the Tao Te Ching, although those who are also practising other faith traditions may choose to swear upon their appropriate holy scripture.

Zoroastrians

• May choose either to affirm, or possibly swear an oath.
• Their holy scriptures are known as the Avesta.