Making the Right Choice?

june2012counselhandonbookRaffia Arshad considers the law, case law and guidance surrounding Oaths and Affirmations

To an experienced courtroom advocate, a witness swearing the oath to tell the truth is the means to an end. However, sometimes the process itself can throw up complications. Can a judge compel a practising Muslim to swear on the Quran if he or she instead chooses to affirm? Some recent decisions show that both the bench and the Bar can get it wrong.


Oaths Act 1978

The manner in which an oath is to be administered is contained in Section 1 of the Oaths Act 1978. Under subsection 1, ‘the person taking the oath shall hold the New Testament, or in the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer administering the oath the words, “I swear by Almighty God that . . .” followed by the words of the oath prescribed by law.’ Subsection 3 provides for those who are neither Christian nor Jewish: “In the case of a person who is neither a Christian nor a Jew, the oath shall be administered in a lawful manner”.


Recent case law

In R v Abdul Majid [2009] EWCA Crim 2563 the appellant was convicted of causing grievous bodily harm with intent and dangerous driving, namely, by driving towards and aiming at three young men with whom he had had a quarrel, causing injuries. Although a practising Muslim, he had affirmed at the beginning of his evidence. Prosecution counsel, when cross examining him, put to him that he was a religious practising Muslim and asked why he did not take the oath on the holy book. The Court of Appeal found this to be ‘an unnecessary line of cross-examination’ and ‘improper’, placing both the defendant and his counsel ‘in a difficult and unnecessary position’, the latter being compelled to intervene and thus ‘to a jury untutored in the cut and thrust of a trial’ make it look as though defence counsel ‘is seeking to rescue his client from an adverse position’. Defence counsel did in fact intervene. The matter was resolved by the defendant taking the oath on the Quran in the middle of his evidence and swearing that what he had said was true. The judge in his summing up ‘exacerbated’ the point by dealing with it, aligning it to the fact that the defendant was a man of good character. ‘This court has had occasion already (R v Mehrban [2001] EWCA Crim 2627) to remind counsel and judges not to go down this path unless there is good reason and certainly not without clearing the matter before the judge in the absence of the jury, so that the defence may have a proper opportunity to object and the judge a proper opportunity to prevent any such unnecessary line of cross-examination’.  Here the judge should have intervened before defence counsel was on his feet. However the evidence overall was so strong that the verdicts remained safe.  

The issue of swearing versus affirming arose at the start of the defendant’s evidence in R v Naaem Saddiq [2010] EWCA Crim 1962. The relevant events took place three days before the Court of Appeal decision in Majid.  The issue arose during a confiscation hearing in a drugs matter. When the appellant went into the witness box he said that he would affirm. The judge intervened and asked him if he would prefer to be sworn on the Quran. Mr. Saddiq said no. ‘Is there a difficulty about that?’ he judge asked. When the appellant said that he did not like to touch the holy book, the judge said, ‘but giving your evidence subject to an oath taken in the face of your holy book may carry some more weight to it, I do not know. It is something that you might like to do, if you feel able’. Again, the witness said that he would affirm. The judge pursued the point: ‘I am just trying to understand the difficulty that you have with taking your oath. This is evidence that you want me to accept, and it may be that you will feel as though you have greater weight to what you are saying if you do indeed take it’ on the Quran. For a third time, the witness declined to be sworn. He was then allowed to affirm.

The judge did not leave it there. He asked Mr. Saddiq what he understood about what he had just done. ‘That the evidence I’m giving is all about the truth and nothing but the truth’, he replied. ‘Yes,’ the judge agreed, ‘and is there a difficulty you have got promising to do that if you are holding the Quran in your hand?’ Mr. Saddiq explained that you have to be clean to do that. The judge then offered him the opportunity to ‘perform. . . if you wish to take the oath on the Quran’.  After several more exchanges, the judge stopped, for the time being. The appellant’s advocate then asked his lay client whether he was happy to affirm, to tell the truth. The judge added, ‘The only point about a witness taking an oath is that it is designed to ensure that indeed the witness does tell the truth and feels under a compulsion to do so, and not just because he has made the affirmation that was made, but because if he has a belief, there is a greater authority that might in fact consider his position if he did not tell the truth. That is the point’.

The Court of Appeal accepted that the judge was well intentioned but used the test of ‘the impression of those exchanges on the fair minded the informed observer posited by the legal test.’ The court was sure that such an observer would conclude that the judge was indicating that the value of the evidence ‘would be greater if it were given following swearing on the Quran rather than affirmation’. ‘We believe that it was unwise for the judge ever to have embarked on this journey. Once having embarked upon it, we think that he should have terminated it far earlier than he did’. The appeal was allowed against the confiscation order which had been made at the end of the hearing.


Guidance – the Equal Treatment Bench Book

The Court commended the guidance which is set out in the Equal Treatment Bench Book:

 

  • The sensitive question of whether to affirm or swear should be presented to all concerned as a solemn choice between two procedures which are equally valid in equal 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 would 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.

The guidance reiterates the good practice set out over 20 years ago in R v Kemble [1990] 91 Cr.App.R 178 which identified the most important question that an advocate should ask when advising a client of faith on whether they affirm or not: whether the process they adopt will bind their conscience.


Raffia Arshad St Mary’s Chambers, Nottingham

 

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