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By: Mark Tottenham BL

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Before giving evidence in an Irish court, most witnesses are required to swear an oath to the following effect:

“I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.”

The requirement to make the oath in this form arises under the Oaths Act 1909, which sets out the prescribed forms of oaths for Christians and Jews. This is that Christians should hold the New Testament, and Jews should hold the Old Testament when making the oath. The Act preserves the right for a person who is not Christian or Jewish to take an oath in any manner then lawful.

If a witness objects to being sworn on the grounds that he or she has no religious belief, or that the taking of the oath is contrary to his religious belief, he or she is permitted to make a ‘solemn affirmation’ instead, under the Oaths Act 1888.

The legislation has not been updated since independence in the 1920s, nor since the introduction of the constitution in 1937.

In 1990, the Law Reform Commission delivered a short, but comprehensive, Report on Oaths and Affirmations. The Commission recommended that oaths be abolished, and replaced instead by a statutory affirmation in the following form:

“I, A B, 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.”

As with many recommendations of the Law Reform Commission, decades have now passed without action from the Oireachtas to consider or implement its recommendations. This is unfortunate.

The default requirement that a witness should swear on the bible is questionable in any event. The New Testament itself takes an ambivalent approach to oaths. In St Matthew’s gospel, at 5:34-35, Jesus is quoted as saying, in the Sermon on the Mount: “But I say to you, Do not take an oath at all, either by heaven, for it is the throne of God, or by the earth, for it is his footstool; or by Jerusalem, for it is the city of the Great King.”

Ireland is now considerably more multicultural than it was in 1990, let alone 1909, and there are people of many more religions living here. Whether religious faith is a matter of personal belief or a matter of community identity, it is doubtful whether a modern republic should require a person to declare his or her faith to a court before giving evidence. It should be sufficient that a witness is legally required to tell the truth, under penalty of prosecution for perjury if he or she fails to do so.

It may be that the courtroom dress of judges and counsel, together with the requirement of swearing an oath, was intended to strike the fear of God into witnesses by reminding them of church. If this was once the case, it is probably now of less practical effect, given that most people in Ireland no longer attend a regular church service.

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