Scrapping court oath would ‘materially increase’ false evidence, judge says
Posted on 22nd September 2020 at 20:08
Mr Justice Humphreys says pledge may seem outdated but has ‘a powerful role in bringing out the truth’
A High Court judge has said the oath “still has a powerful role in bringing out the truth” and that while scrapping it “makes academic sense”, it “would materially increase the amount of false evidence in practice”.
Mr Justice Richard Humphreys said “would that it were not so but it would be wishful thinking to ignore the reality” .
He said the need for an oath is “considerably greater” in the international protection context “where credibility as such looms large and where the nature of events being attested to in faraway locations and unusual circumstances often eludes direct proof or disproof”.
He made the comments in a judgment dismissing a challenge by an Albanian woman and her Irish born son to deportation orders on grounds including they were entitled to a rehearing of their protection applications before the International Protection Appeals Tribunal (IPAT) because an oath was not administered at the original hearing.
Katherine McGillicuddy, for the Minister for Justice, argued they were legally represented at the hearing, had not indicated they wished to provide sworn or affirmed evidence and thus acquiesced in the conduct of the hearing.
Mr Justice Humphreys said the applicants and their lawyers were aware of the oath issue before the IPAT decision but did not do anything and rather waited to see if they would get a positive outcome which was “a classic form of acquiescence”.
Assuming it was legitimate not to raise the point about the oath at that hearing, it is not quite as legitimate, when one gets a negative decision, to then “cry foul” and say there is a serious problem, he said.
While the International Protection Act 2015 enables rather than mandates administration of the oath, administration of an oath in line with religious beliefs of each witness should be the “default position” of the tribunal for consistency reasons and to ensure evidence to the tribunal is offered “with due solemnity and seriousness”.
Affirmation arises only if the oath is contrary to a witness’ religious beliefs or they have no religious beliefs. Taking evidence without an oath or affirmation should only be in the limited circumstances set out in the IPAT chairperson’s guidelines, he added.
The tribunal is fully entitled to view refusal to take an oath, where the conditions for affirmation are not satisfied, as being in and of itself undermining of the credibility of the account offered, all other things being equal, he said.
That was common sense as someone who hesitates about swearing to the truth of something “is giving you important information about the reliability of their account, all other things being equal”.
The Covid-19 emergency has necessitated remote hearings involving alternatives to the oath or affirmation, in particular a “statement of truth”, he said.
While the ongoing secularisation of society makes oaths, with their emphasis on religious belief, look like a “pre-Enlightenment anachronism and an embarrassment”, the “unfortunate reality is that the oath still has a powerful role in bringing out the truth”, he said.
There are people who “are relatively untroubled about the theoretical civil and criminal consequences of lies to a court or tribunal but who nonetheless hesitate if asked to call down their deity as a witness to such lies”.
“The rational, bureaucratic mind fails to appreciate that merely stiffening the criminal penalties for perjury has no effect whatsoever on that viewpoint,” the judge said.
The existence of such witnesses has been illustrated from experience since the IPAT began to administer oaths in recent years and was reinforced by the experience in the High Court asylum list, he said.
In other findings, he said the fact the judicial review application was brought outside the five day limit provided for, and without an extension of time being sought and no explanation for that, was “fatal” to it.
The request to the IPAT to rehear the appeal was misconceived as the 2015 Act gave no authority to set aside an IPAT decision in full or to hold a full rehearing after the tribunal’s decision has been made, he held.
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