Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.





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Saturday, 11 April 2015

OATH OR AFFIRMATION OR JUST THE PLACIBO EFFECT?





A friend of a friend was referred to me to explain what she could expect when being a witness at court.  On discussing the oath she stated that she was agnostic.......neither believer or non believer.  This set me thinking and I discovered this court case from February.



Believers and non believers rarely change their opinions or reject their beliefs. It is upon the fear of a divine retribution that oaths have existed since the dawn of civilisation. It seems to me that the application of oaths to witness testimony in our courts is as archaic as a belief in the gods living in Mount Olympus.


The number of those in England describing themselves as Christian can cautiously be estimated as 50% + or – 10% depending on definitions. About 10% adhere to other religious denominations and about one third are atheist. If regular church attendance indicates the strength of Christian belief only about 10-15% of so called Christians attend church at least once monthly. In my experience when witnesses with surnames of apparent Pakistani or Arab origin are asked to take the oath they rarely affirm; they swear on the Holy Koran. When Orthodox Jews are “sworn” generally they decline the Hebrew Bible and affirm. They are not questioned as to their choice which could be construed as having a lesser value irrespective of the religious reasons for so doing. Affirmations are therefore generally from the white majority ethnic group. My point is to question the value of the religious oath without the court knowing the depth of religious attachment to the particular faith. Therefore from my point of view the religious Jew and the witness who affirms are being up front about their evidence……..they are telling us quite simply that they will tell the truth. We believe their evidence or we don`t. Those who swear on a holy book as if by rote and with no belief can feel free to lie. They are not constrained by fear of divine retribution. The February case could be used as an example of the placibo effect.  Was not the belief  itself that the correct holy book was used for taking the oath not sufficient? With a charge of perjury virtually non existent in magistrates` courts proceedings is it not time to re-think the oath?

1 comment:

  1. What a bizarre discussion!

    I sit in a different jurisdiction where our rules are different, but...

    - An oath or affirmation regardless of the words used is about the person swearing to tell the truth.
    - No holy book is used even when the person swears an oath to God.
    - the judge can adapt the oath in any way they see fit to help the person understand or make it acceptable to their religion
    - If there was some doubt in a case like that cited I would have thought asking the witness if he had given any less honest answers than he would if he sworn on the "right" book would have been appropriate.
    - I once saw a case where 10 minutes into evidence it was realised that the witness had not sworn the oath - this was rectified by apologising to the witness, swearing him in, asking if everything he had said in the witness box so far had been the truth, the whole truth and nothing but the truth and then the judge reading back a quick summary of his notes and asking the witness if all of that was true. Don't think it was appealed and everyone seemed content.
    - Typically witnesses don't know the difference between oath and affirmation, so are asked if they wish to swear an oath to God or not mention God.
    - If in doubt about the significance of the oath people will be asked if they understand that if they lie under oath they can be imprisoned
    - Whilst prosecutions for perjury are rare (they require unequivocal proof that the witness intentionally lied) it is very common for witnesses to be reminded by either side during cross examination of the consequence - I've never heard them suggest lying would result in divine retribution
    - The reporter seems to assume that someone who is religious and swears an oath with that fear of divine retribution is therefore more credible than a witness who affirms.
    - That seems as crazy as an aethiest judge or juror dismissing the credibility of someone who swears an oath to God.

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