Before giving oral evidence in court, an adult witness must swear either an oath or affirmation. The purpose of this public declaration is to demonstrate that the witness understands the solemnity of the occasion and the heightened obligation to tell the truth.
The wording of the oath, and the involvement of a book considered sacred by the witness, makes explicit reference to the religious underpinnings of the declaration: - 'I swear by almighty God that I shall tell the truth, the whole truth and nothing but the truth.' An affirmation lacks any such spiritual tethering. The witness instead 'solemnly, sincerely and truly declares and affirm' the veracity of their evidence. People generally choose to affirm either because they lack any religious convictions, or because they consider it improper to swear by such beliefs.
The two declarations are intended to have the same result and to be of equal value. A person's evidence should not be considered of lesser worth merely because they have chosen a particular declaration. And yet we do ascribe them different titles. This distinction seems to be justified on the basis that one has the force of purported religious conviction behind it, whereas the other may have some alternative, unspecified, underpinning. But if they are of equal force, why do we need to maintain the distinction? An oath is clearly incompatible with the beliefs of a non-
religious person, but it is arguable that affirmations are broad enough to encompass all conceivable ideologies. Is the oath otiose?
Some might argue that the survival of the oath is a recognition that since religion plays a fundamental part in many peoples' lives, it will be the best guarantor of their honesty. As we want to ensure that all evidence is as reliable as possible, we will tolerate any reasonable process that better produces this result. It is unclear, however, if religious people need a specially tailored reminder to tell the truth. Would they not feel sufficiently bound if they did not publicly declare the motives driving their honesty?
Perhaps the function of the oath is to demonstrate the integrity of the witness to those evaluating the evidence. If so, it is a poor indicator. Many people lie under oath. This may occur because the maker does not truly feel bound by religion, or because they are dishonest in spite of it. If those hearing evidence are impressed by an oath, then it would certainly be a useful smokescreen for the unscrupulous.
The reason for the continued distinction between oaths and affirmations is unclear. The potential dangers of maintaining the two different declarations are somewhat more obvious.
In a 2001 review, Lord Justice Auld recommended reforms of the declaration process, acknowledging that 'a combination of archaic words invoking God as the guarantor of proposed evidence and the perfunctory manner in which they are usually uttered detracts from, rather than underlines, the solemnity of the undertaking'. There are other concerning aspects of the practice. It is a strange quirk of our justice system that we require a witness to make a public declaration of their religion, or lack thereof, before giving evidence. Surely we could better judge a witness if we knew how they voted? Their sexuality? Their views on climate change?
To many people these details would also provide an informative insight into the witness's moral character, but such prejudices are inappropriate in a court room. These details are simply not relevant.
While a person's religion may often be gleamed from other indicators and coloured judgements made even in the absence of dedicated declarations, the current practice is unsatisfactory: it directly links a person's integrity to their stated belief system. This may inappropriately alter peoples' opinions of that witness.
There will always be an element of trust placed in those who evaluate evidence. We assume that they will be right thinking people who are able and willing to look objectively at a person's evidence and weigh it accordingly. Sadly, this will not always be the case. We should therefore try to minimise the opportunities for skewed and distorted judgements. Witnesses should be judged purely on their evidence rather than irrelevant personal details.
The intended effect of the oath is an admirable one. It attempts to bind a person's conscience by reference to their most fundamental beliefs. If an individual's religion is the foundation of their moral compass then it is right that they are asked to invoke it. Yet a modified declaration could maintain this powerful effect whilst maintaining the general
applicability of affirmations. For example, a 'public declaration of truth' which stated that a witness was bound to tell the truth 'on that which they hold most dear' would have universal application, but would also be uniquely tailored to each individual. A religious person would presumably have their faith at the forefront of their mind. Others may consider the value of their personal integrity, rooted in their reputation or family name, for example. What such a declaration conjures is irrelevant provided it is what the individual finds most compelling.
Undoubtedly there will always be those who make declarations with no intention of adhering to them. It is doubtful whether any form of words will alter this. However, this declaration will at least maintain the chance of binding a witness whilst also removing some of the dangers of inappropriate value judgements.
Some religious groups may feel it unfair that we should ask them not to disclose their faith prior to giving evidence. After all, it is prejudice rather than religion that is objectionable. This proposal should not therefore be seen as an attempt to divorce a person's religion from the process of justice. It is instead an attempt to ensure that religion, or lack of it, does not inadvertently compromise the process because of others' prejudices.
The Guardian's Andrew Brown read this piece before publication and wrote a response on the Cif belief site.