Can magistrates do away with the oath?

The Magistrates Association will today debate a motion put forward by Bristol JPs Ian Abrahams and Kate Rowe to replace the oath and affirmation sworn by witnesses before they give evidence with a simple promise.

The motion, to be debated this afternoon at the Association’s AGM in Cardiff, states a:

This Annual General Meeting believes that the present oath and affirmation are no longer fit for purpose and should be replaced by the following:
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.
This AGM instructs the MA executive to pursue this change with the appropriate Government offices with a view to a change in the law, if necessary.

Some religious leaders, including the former bishop of Rochester Michael Nazir-Ali, have claimed that doing away with the oath is part of the increasing secularisation of society. “The Bible is bound up with the constitution, institutions and history of this country,” he said. “It is right for people to have a choice of oath, a religious or non-religious one, but we are being urged, in the name of tolerance and secularisation, to restrict that choice.”

131019-magistrates-imageAbrahams, a Jewish atheist, told the Mail on Sunday that his motion was not anti-religious. “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.”

Until the Oaths Act 1888, which was pushed through Parliament by the prominent atheist Charles Bradlaugh, it was the common law of England that atheists could not give evidence. “Persons of no religious belief were incompetent as witnesses, being incapable of acknowledging the obligation of an oath,” Halsbury’s Laws of England b says.

Charles Bradlaugh, founder of the National Secular Society, was elected to Parliament by the people of Northampton in 1880. At first he refused to swear an oath and offered to make a solemn declaration; this was rejected by a select committee and subsequent attempts by him to swear an oath were frustrated by opponents using parliamentary procedures which saw him repeatedly expelled from the commons and occasionally arrested. The seat fell vacant four times, with Bradlaugh winning each successive by-election.

In 1883 he was prosecuted after voting three times without taking the oath. The Court of Appeal upheld his convictionc with Lord Justice Lindley, later to become Master of the Rolls, saying:

It is a mistake to suppose – and I think it is as well the mistake should be known – that persons who do not believe in a Supreme Being are in the same position legally as those who do.

There are old Acts of Parliament still unrepealed, under which such unbelievers can be cruelly persecuted. Whether that is a state of the law which ought to remain or not, is not for me to express an opinion upon; but having regard to the fact that these Acts of Parliament still remain unrepealed, I do not see my way to hold judicially that this oath was not kept alive by Parliament for the very purpose, amongst others, of keeping such unbelievers out of Parliament.

As in many such cases, a person who loses in the courts often win in Parliament. Bradlaugh returned to Parliament and pushed through the Oaths Act 1888 which not only gave Parliamentarians the right to affirm instead of swear; it also regularised the position of witnesses in courts.

The position in English law prior to 1888 would appear to be contrary to that put forward by Jesus during his Sermon on the Mount:

Again, you have heard that it was said to the people long ago, ‘Do not break your oath, but fulfill to the Lord the vows you have made.’ But I tell you, do not swear an oath at all: either by heaven, for it is God’s throne; or by the earth, for it is his footstool; or by Jerusalem, for it is the city of the Great King. And do not swear by your head, for you cannot make even one hair white or black. All you need to say is simply ‘Yes’ or ‘No’; anything beyond this comes from the evil one. d

So that’s pretty clear: Christians should not swear an oath.

In 1562, the religious leaders of the day felt the need to confirm the appropriateness for “Christian men” to swear an oath “when the magistrate requires”. The last of the 39 Articles of Religion (which Anglican clergy are still required to ascribe to today), acknowledges that “vain and rash swearing is forbidden”; but says that Christians can swear an oath to a magistrate, “in a cause of faith and charity . . . according to the Prophet’s teaching in justice, judgment, and truth.”

Not all Christians agree, not least Quakers, who “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…”e

You don’t need to go back to the 1880s for precedents on the use of oaths and religious belief. In January 1989, Peter Kemble pleaded guilty to two offences of possessing a firearm without a certificate. He pleaded not guilty to another charge of having a firearm with intent to commit an indictable offence, namely blackmail, but was convicted by an Old Bailey jury and sentenced to two-and-a-half-years in prison; to run concurrently with a 12 month sentence for the possession charge he had admitted.

He appealed against his conviction on the grounds that the main prosecution witness, Tareq Hijab, was a Muslim. He argued that because Hijab had sworn on the Bible the oath was invalid and the prosecution procedurally flawed.

The Appeal hearing f heard from an Islamic scholar, who said that an Islamic oath was valid only if given on an Arabic language version of the Koran. Certain other conditions were also required – for example, a women could not swear an oath if she was menstruating because she was unclean and so could not swear on the Koran.

Hijab, the original prosecution witness, gave evidence at the appeal; this time swearing an oath on an Arabic Koran. He told the appeal judges: “Whether I had taken the oath on the Koran or on the Bible or on the Torah, I would have considered that to be binding on my conscience.”

Giving judgment, the Lord Chief Justice Lord Lane, rejected Kemble’s argument, saying: “We take the view that the question of whether the administration of an oath is lawful does not depend on 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 judgment. 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 most importantly, is it an oath which the witness himself considers to be binding on his conscience.”

Bradlaugh’s Oaths Act of 1888 was repealed by the Oaths Act 1978, which is still in force today. Section 1 of the Act specifies the “form and manner” in which oaths may be administered: for a Christian, by holding the New Testament in an uplifted hand; and for a Jew the Old Testament. For a person who is neither a Christian nor a Jew, “the oath shall be administered in any lawful manner.”

Section 5 says that a person who objects to swearing an oath may make a solemn affirmation using the words set out in section 6.

The Act does not give any power to Magistrates to change the wording of the oath or the affirmation.

Halsbury’s states that the wording of the oath and affirmation, “that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth”, was set down by judges in the Kings Bench in January 1927 for use in criminal and civil cases.

The motion before the Magistrates Association conference this afternoon doesn’t seek to amend the wording of an oath; but to replace it altogether with a “sincere promise”. For that, they will need Parliament to change the Oaths Act 1978 and, in the current climate, I wouldn’t put too much expectation on the government seeing this as a priority.

Surely a much bigger issue facing Magistrates is not the form of oaths and affirmations; but the closure and rationalisation programme of courts which will further remove the administration of justice from victims’ local areas.

  1.  (back)
  2. Halsbury’s Laws of England > Civil Procedure (Vol 11 (2009) 5th Ed, paras 1–1108; Vol 12 (2009) 5th Ed, paras 1109–1836) > 20. Evidence > (7) Witnesses  > (vi) Oaths and Affirmations > 1021. Evidence on oath.  (back)
  3. The Attorney General v Bradlaugh (1885) 14 Q.B.D. 667  (back)
  4. Matthew 5:33-37 New International Version  (back)

  5. Quaker Faith & Practice 20.50, quoted by Frank Cranmer in the Law and Religion UK blog  (back)
  6. R v Kemble [1990] 3 All ER 116  (back)
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