At a council meeting of the Law Society of Ireland on Friday 8 April 2016, council members were informed of a hearing before the President of the High Court, Mr Justice Peter Kelly on 4 April 2016.

The circumstances reported to the Council were that Mr Justice Kelly presided over a previous bail list, in which a bail applicant was queried by the President with regard to the affidavit he had sworn in support of his application. The President’s questions were aimed at establishing whether or not the affidavit had been validly sworn. The President enquired of the bail applicant if a bible had been produced during the course of the purported swearing of the affidavit. When the bail applicant replied that it had not, the President directed that the solicitor on record for the applicant and the solicitor who administered the oath, (who was a newly qualified solicitor having only received her parchment in December 2015), appear before him. Both solicitors came before the President on 4 April and both were represented by separate senior counsel.

The President stressed the importance of trust in the solicitors’ profession and said that he viewed the swearing of an affidavit on the Bible as a matter of integrity, honesty and trustworthiness. The solicitor before whom the affidavit was sworn had given evidence that she was satisfied that the bail applicant had been aware of the contents of the affidavit, had not wished to amend it and had been aware of the importance of telling the truth. In addition, the solicitor in question gave evidence that, as she did not have a bible with her at the time, she should have had the bail applicant make an ‘affirmation’ instead. The President disagreed, stating that the use of an affirmation in the manner suggested was not possible under the terms of the relevant legislation. An affirmation, the President said, may not be used as a simple expedient when the appropriate religious book was not available. An affirmation is only appropriate where a deponent objects to being sworn on the Testament either because the deponent has no religious belief or has a religious belief which does not permit him or her to make an oath in religious terms. The President further indicated that if a deponent has a religious belief, he or she must swear the affidavit on oath on the bible or other appropriate religious text.

The President was particularly adamant in relation to this matter and at a previous sitting of the High Court when a member of an Garda Siochana sought to make an affirmation the same judge cross-examined the deponent on his religious beliefs and practices.

It is an integral part of the daily life of a solicitor or notary public that persons who come before them, often referred to as appearers, must make depositions. These depositions represent the truth in the context of relevant circumstances. In commercial matters, they may take the form of declarations. In court, a verbal statement is made on oath. As a written statement, the court will accept an affidavit if it is properly sworn. For the purposes of private international law, the act of a notary in one jurisdiction will be accepted in another country as the truth particularly if it follows the protocol established by the Hague Convention and carries an apostille.

The appearer who swears must do so before an authorised individual. In general, they are solicitors or notaries public. They may also be commissioners for oaths, peace commissioners or other authorised persons.

The practice of taking oaths had become a casual exercise for some persons authorised to take affidavits to the point that, frequently, the deponent was not even present. Practice and the law sometimes diverge until suddenly a point of correction is delivered. This is one of those points and the impact cannot be underestimated. There must be thousands of questionable affidavits in circulation. The legal, commercial and probative value of transactions, decisions and procedures may, therefore, be in doubt.

The Irish Law Reform Commission (LRC) report on oaths and affirmations published in 1990 provides a useful background to where we are now and its recommendations should now be extracted from the mothballs of time.

The primitive origins of administering oaths in judicial proceedings fall on the ancient concept of divine judgement shared by the early forms of proof in Anglo-Saxon law. These included trial by ordeal, by battle, and by compurgation. Pre-religious forms of proof began when supernatural beings were unknown and men were believed to possess magical powers that could be invoked through an uttered curse. In this form, the oath was a traditional self curse which could be used as security for a promise. As divine beings gained significance, the curse ceased to exist as an independent force but would continue to work magically through the medium of the gods. Eventually, in the fourth century A.D., the Code of Justinian gave written authority to Christian practice and from that source, it was adapted, primarily through the canon law, to all of European Christendom.

At common law, although no particular form of oath was prescribed, only Christians were initially deemed to possess the belief necessary to be sworn as witnesses. By the 18th century, it was customary to allow Jews to testify. Then in 1744 in the case of Omichund v Barker the English court of Chancery held that any person who believed in God and in the solemn obligation of an oath was competent to testify once he had been sworn in whatever manner his conscience and religious convictions would find binding. Nonetheless, atheists, agnostics and other persons whose scepticism was irreconcilable with the oath were denied the right to offer testimony.

Ironically, the Bible itself provided reasons to suggest that the act of swearing was blasphemous, see Matthew 5:34 and James 5:12. Accordingly, Quakers Separatists and Moravians refused to be sworn. To accommodate this belief, the Quakers and Moravians Acts of 1833 and 1838 were passed. The affirmation was thus introduced allowing persons to be sworn without direct reference to divine authority. The Oaths Act of 1838 was also passed to remove doubts as to the validity of certain oaths. It provided, in effect, that in any civil or criminal proceedings or “on any occasion whatsoever” in which an oath may lawfully be or shall have been administered, the person sworn shall be fully bound by such oath, irrespective of his religious belief or attitude, provided the oath was administered in a form and with such ceremonies as he, the deponent, declared to be binding.

The Oaths Acts of 1888 and 1909 went on to provide that every person upon objecting to being sworn, and stating, as the grounds of such objection, either that he has no religious belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law. President Kelly is, therefore, entirely consistent both in his summary of the law in this regard and in his interrogation of a witness’s religious beliefs and practices. These Acts, it should be said, repealed the 1838 Act by invoking a prescribed form of oath involving reference to God and the Bible.

The LRC in its report found that the practice of administering oaths in judicial proceedings is almost universal. There are, it appears, only three systems of law not making use of such an evidentiary procedure, namely Chinese law, Slavic law and Swiss law, and in each of these the absence of the oath is attributable in part to the absence of any ancient tradition of swearing oaths as a means of proof in itself. All civil law jurisdictions either provide for a right of affirmation as an alternative to the oath, or for a simple, universal statutory affirmation.

The LRC concluded that the present law is unsatisfactory. Many forms of oath are at best embarrassing and at worst offensive to the religious beliefs of the persons to whom they are meant to apply. It recommended the abolition of the oath and its replacement with a solemn statutory affirmation in the following form:

“I, AB, do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. I am aware that if I knowingly give false evidence I may be prosecuted for perjury.”

The need for a deponent to specify why he or she wishes to affirm as required under the Oaths Act 1888 is questionable in light of Ireland’s obligations under the European Convention on Human Rights, article 9 of which protects the right to privacy of religious convictions. In Dimitras and others -v- Greece (2013), the European Court of Human Rights held that Greece had violated the article 9 rights of the applicants by requiring them to reveal their religious convictions in order to make a solemn declaration rather than swear an oath on the Bible. The Greek criminal code assumed witnesses, complainants, and suspects were orthodox Christian for the purposes of swearing an oath, unless they formally stated otherwise.

In her article published in the May 2016 edition of the Law Society Gazette, Colette Reid came to the conclusion that our anachronistic Victorian system is long overdue an overhaul.

The current programme for government recommends removal of reference to blasphemy from the Irish constitution. The removal of the oath requires no constitutional amendment, simply the passing of an act. The implications of failing to do so should be drawn to the attention of the Minister for Justice and in turn to the Executive. The president of the High Court has provided the opportunity for careful reflection. The emptying of prisons on the grounds of false or invalid testimony is not a prospect our society should have to contemplate.

Justin McKenna