Appendix A: forms of oath
1. Introduction
An oath or affirmation must be taken in all courts where a witness is to give evidence.[1] An oath or affirmation is not generally taken in most tribunals, although it is in Employment Tribunals.
The law on oaths and affirmations is found in the Oaths Act 1978 (only part of which applies in Scotland) and in the Ordinary Cause Rules, rule 29.16 Forms G14 and G15, the Rules of the Court of Session 1994, Form 36.10-A; and the Criminal Procedure Rules 1996, Form 14.5-A.
Note that in England and Wales, Christian and Jewish religious oaths are taken by swearing on the relevant holy book, unlike in Scotland where the oath is taken by raising the right hand.
For oaths for children, see section in chapter on Children and Young Persons.
2. Oath for witnesses
The standard form of oath in both civil and criminal proceedings is: “I swear by Almighty God that I will tell the truth, the whole truth, and nothing but the truth.”
The witness is asked to raise their right hand when taking the oath, unless there is physical disability or other issue preventing them from doing so. The use of a bible or other religious book is not required.
It is often convenient to divide the words into four sections (to enable the witness to follow and to repeat accurately) thus:
“I swear by Almighty God / that I will tell the truth / the whole truth / and nothing but the truth”.
3. Affirmation for witnesses
The form of affirmation in both civil and criminal proceedings is: “I solemnly, sincerely and truly declare and affirm that I will tell the truth, the whole truth, and nothing but the truth”.
A witness does not raise their hand when taking the affirmation.
It is often convenient to divide the words into four sections (to enable the witness to follow and to repeat accurately) thus:
“I solemnly, sincerely and truly declare and affirm / that I will tell the truth / the whole truth / and nothing but the truth”.
It is important that taking an affirmation is seen as equal to the oath, and given the same respect by the court and others.
4. Availability of holy books in the court
A selection of holy books in the court building, for witnesses who might wish to take the oath according to their religious beliefs are available in all courthouses. These include:
The Holy Bible;
The Hebrew Bible i.e. the Old Testament;
The Bhagavad Gita or ‘Gita’ (Hindu Sacred Text);
The Adi Granth (Sikh Sacred Text);
The Holy Qur’an or ‘Koran’ (Muslim Sacred Text).
Taking the standard oath does not require the use of the Bible or other holy book.
Judges, through clerks, should request replacements of the above holy books if required. If the court does not have the necessary holy book, the witness should be invited to affirm.[2]
Further information on the handling of holy books is available in English and Welsh Equal Treatment Bench Book, at page 279 onwards, para 39 – 47 which gives information as to rituals that may be observed by those of the Jewish, Muslim, Rastafarian, Sikh and Hindi religions. Judges may wish to be aware of the requirements regarding the handling of such books, to ensure that court staff understand the sensitivities that may be involved in the carrying and handling of such books. In addition, there may be rituals that a witness will wish to observe regarding the book pertaining to their religion.
5. Refusal to take the oath or affirmation
The refusal of a witness to take the oath may involve issues of contempt and reference is made to the Contempt of Court Toolkit (but judges are asked to note that as it has not been updated for some time caution should be exercised). However, before considering dealing with the matters as a contempt, a judge may wish to make enquiries to ensure that the apparent refusal to take the oath (or affirm) is not due to a language, cognitive or other issue.
6. Different types of oath
The English and Welsh Bench Book has useful information on a number of religions and the oaths; see page 280, para 54 which has links for a number of religions should it arise.
7. Interpreters
Interpreter’s oath – Often best administered by a question to the interpreter, eliciting the response “I do” – Do you swear faithfully to perform the duties of interpreter in these proceedings?
Interpreter’s affirmation – Do you solemnly, sincerely and truly declare and affirm that you will faithfully perform the duties of interpreter in these proceedings?
8. Shorthand writers
In terms of OCR 29.18, reference is made to shorthand writers having taken an oath with the sheriff court generally. However, it is will not be known to a sheriff whether companies supplying shorthand writers have made arrangements for their staff or contractors to take a general oath. There may also be civil proceedings where the evidence is recorded, but which do not fall under the OCR.
Accordingly, if evidence is to be recorded by a shorthand writer, a judge may wish to enquire as to whether a general oath has been taken and if there is any doubt, administer an oath or affirmation.
Often best administered by a question to the shorthand writer, eliciting the response “I do”
Oath – do you swear faithfully to perform the duties of shorthand writer in these proceedings?
Affirmation – do you solemnly, sincerely and truly declare and affirm that you will faithfully perform the duties of shorthand writer in these proceedings?
9. Juror’s oath
Jurors can either take the oath or affirm. It should be made clear to jurors that they have the choice. Usually the clerk of court will ask jurors who wish to take the oath to rise, and administer the oath collectively by ask jurors to raise their right hand and say “I do”. The wording of the oath is “Do you swear by Almighty God that you will well and truly try the accused and give a true verdict according to the evidence?”[3]
The clerk will then ask the remaining jurors, who wish to affirm, to rise. The taking of the affirmation is different, in that jurors repeat the full wording. The form of words to be used when affirming is set out in section 6(1) of the 1978 Act, which provides:
Form of affirmation.
6(1) Subject to subsection (2) below, every affirmation shall be as follows:—
“I, do solemnly, sincerely and truly declare and affirm,” and then proceed with the words of the oath prescribed by law.
This wording is also found in Form 14.3-B in the Criminal Procedure Rules 1996; and Form 36.10-B in the Rules of the Court of Session 1994. Form 14.3.B states: ”The juror to repeat after the clerk of court: “I, (name), do solemnly, sincerely and truly declare and affirm that I will well and truly try the accused and give a true verdict according to the evidence.”
The inclusion of the “I” at the beginning of the sentence means that the practice in some courts has been to administer the affirmation individually to each juror, given the need for each juror to say their name in the appropriate place. This raises a concern that those seeking to affirm may feel they are being treated differently and it may appear discriminatory. To avoid this, it is suggested that the clerk is directed to administer the affirmation collectively, with each juror saying their own name.
10. Curators ad litem
The practice is that where curators ad litem are appointed for the first time, they are asked to take an oath before taking up their first appointment. The form of the oath might be best administered by a question to the curator, eliciting the response “I do” “Do you swear faithfully to perform the duties of curator ad litem in any proceedings in which you are appointed? “
In a similar way, wording for an affirmation might be “Do you solemnly, sincerely and truly declare and affirm that you will faithfully perform the duties of curator ad litem in any proceedings in which you are appointed?”
11. Oaths re warrants
Where it is necessary to put a police officer on oath in connection with a warrant, the wording of the witness oath can be used, or a suggested variation thereon as circumstances require:
“I swear by Almighty God that the information I provide in this application is the truth / the whole truth / and nothing but the truth”.
“I solemnly, sincerely and truly declare and affirm / that the information I provide in this application is the truth / the whole truth / and nothing but the truth”.