Peter Harthan

Barrister

Oaths and Affirmations

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I was somewhat taken aback recently when, prior to a trial in Manchester County Court, my opponent beckoned me over and asked me whether I had informed one of my witnesses, a British Asian, that there were Islamic washing facilities in the building. I gave the somewhat bemused response that no I hadn’t, and as her lawyer I couldn’t see why it would be in any way appropriate for me to do so. It turned out that my opponent, having noted the witness’ choice to affirm, was intending to cross examine her as to why she had not chosen to take an oath on the Koran. My opponent hoped to head off what she expected the answer to be, that the witness had not had the opportunity to undergo her washing ritual that day.

This line of cross examination is predicated on the supposition that Muslims choose to affirm because they are not prepared to lie on the Koran, but are willing to do so having affirmed. I am not naive enough to say that this does not go on, although I know of no firm evidence to support the supposition. Even if it does go on though, my feeling was that it was a wholly irrelevant and improper line of questioning. Although I wasn’t aware of it at the time, there is authority in which the Court of Appeal came to a similar conclusion.

Having told this anecdote to other counsel I remain astonished that some think that this line of cross examination is legitimate. If the law allows a person the right to affirm then I don’t see how we can look behind that. So long as a person complies with the Oaths and Affirmations Act 1978 then they have fulfilled their obligations. It is clearly discriminatory, a white British person would not be cross examined on the subject should they choose to affirm. Furthermore it shows a lack of awareness. I once did a trial where a Vicar gave evidence. The Vicar chose to affirm on the basis that Jesus said “Let your yes be yes and your no be no, for whatsoever is more than these comes from evil” (Matthew 5:37) and she interpreted this as meaning that you should always be truthful and not invoke God’s name. I understand that some Muslims also believe that it is wrong to swear on the Koran. I am also now aware that Muslim women are forbidden from swearing on the Koran if they are menstruating. I am reliably informed that this was the answer given when counsel put the question in a recent case in Manchester.

Cross examining on choice of oath is clearly wrong in my view, both legally and ethically. I remain astonished and a little disappointed that not all Judges and Counsel agree. The more serious problem however must be in the Criminal Courts. If Counsel, Magistrates and Judges are giving consideration to whether a witness has sworn or affirmed then one can be fairly sure that members of Juries do so as well. I recently spoke with a Recorder on this subject. He told me that he had done an appeal from the Magistrates Court, sitting with two lay Magistrates, as is the norm in such hearings. He was surprised when one of the Magistrates repeatedly made the point that a Muslim witness had affirmed and therefore probably wasn’t telling the truth. I have no doubt that Juries are also making such dubious assumptions, but given the sanctity of the Jury Room we never find out about them.

A Muslim who chooses to affirm, often for personal and perfectly legitimate reasons, is therefore likely to be at a disadvantage to white people who choose to affirm. The only way in which I think that this can be resolved is to have a universal affirmation, so that everyone is on the same footing. Maybe I see it from an atheists point of view, but so long as the person has taken a solemn vow to tell the truth I think that should be sufficient for the Court to hear their evidence without having to indirectly disclose their religious beliefs or absence of such.

By Peter Harthan