The First Sunday Meeting dealt with the subject of oaths and affirmations, and the speaker was Justin McKenna.
Justin explained that one of the duties of every solicitor is to record statements from clients in the form of an affidavit or declaration averring the truth. This normally takes the form of asking the clients to confirm the statement to be true and asking them to sign it without any recourse to religious texts. This rather mundane and pedantic task was questioned recently by Mr Justice Peter Kelly, President of the High Court. His question concerned the lack of a bible when statements were being made by Christians. This question is completely valid in Irish law and it has important ramifications for almost all of the affidavits made in recent years throughout Ireland. Is it necessary that a baptised person should use a bible to verify that they have spoken the truth? If so, then how can a judge or other legal agent find out if the person is a Christian other than by asking them? Is this question an infringement of the person’s right under the European Convention on Human Rights (ECHR) article 9, to privacy regarding their beliefs? Yes, it does break the convention.
There have been various methods used to establish legal truth. In the past there was trial by combat (still available on Game of Thrones) and the invocation of various deities to smite the appellant if they had not spoken the truth. It could be said that the penalties for perjury are sufficient to encourage the truth. Some Christians, who take the bible more literally than others, use the bible itself to abstain from swearing on it (Mt 5:37). This practice showed the need for a non-biblical “oath. Eventually, by 1938, Ireland had statutes allowing declarations of the truth in commercial cases. In 1990 the Law Reform Commission agreed that secular affirmations should replace the choice of affirmation or religious oath as this identification of a person’s religion or lack of it was contrary to the European Court of Human Rights. This has not been acted on yet, and given the rather weak position the government is in regarding the support of various independent TDs, it is unlikely that anything will happen soon.
Justin’s talk brought forth many questions and comments:
Q1 In the case of the Glen of the Downs protest, was it the case that the judge insisted that those who had been baptised should use a bible to swear an oath?
A1 I am not familiar with the case.
Q2 Could a request by a witness to make a secular affirmation instead of a religious oath be detrimental to their credibility?
A2 I don’t think this is a problem in Ireland.
Q3 In my experience in the Coroner’s Court it is not normal to ask people if they want to make a secular affirmation or swear on a bible; the bible is assumed.
A3I feel there have been cases where non-believers have given a religious oath in court so as to bolster their credibility.
Q4 I find that when entering hospital there is a question about one’s religion, surely this is none of the hospital’s business?
A4 There is a right in ECHR article 9 to privacy regarding your religious beliefs or lack of them.
Q5 The last time I did jury service the clerk of the court didn’t offer a secular affirmation and didn’t seem to understand the idea until the judge explained it. The British system seems more open to secular affirmations.
A5 This is a practical problem, when I arrange for a house purchase I usually ask about the choice of religious oath or secular affirmation at the start as it saves time changing the paperwork later. It seems odd that this is an issue in buying a house, but it is.
Q6 Can a judge just be awkward about oaths?
A6 No, the judge must accept your decision to make a secular affirmation.
Q8 Are there cultural and subconscious biases among judges?
A8 There can be bias but due to the system of advocacy in Ireland this should not present a problem.
Final remark from Justin:
Judges and our President still take a religious oath on taking office.
– Report by Peter Deeney