On 26 December The Firm reported that, in a letter to the Herald, advocate Sean Templeton argued that the oath sworn by witnesses in Court should be abolished and replaced with a secular oath, removing the need for witnesses to choose between swearing “by Almighty God” or solemnly affirming to tell the truth. Soliciotr advocate Chris Fyffe offers a counterpoint to the view that a jury's attitude to a witness could be coloured by whether they chose to swear or affirm.

Earlier this week advocate Sean Templeton proposed a universal oath should be sworn in court.The difficulty with the present system, he argues, is that those choosing to affirm stand out - “it instantly draws a great deal of attention to the fact that the person will not swear to God.”

What evidence is there for that statement? None. The whole premise of his argument is based upon the wholly unsupported suggestion that jury verdicts are being unduly influenced by a prejudice against witnesses who chose to affirm.

Of course, it is impossible to say whether jurors are influenced by the swearing of an oath, just as it is impossible to say whether jurors are influenced by the colour of a witness' tie or hair or skin. The Contempt of Court Act prevents such inquiry into jurors' motivations.

Mr Templeton goes on to say: -

“It is a statement relating to a person's personality and belief that no other witness is required to make, unless it is a facet of the particular case. It is impossible to be certain that such an aspect of the witnesses' personality will not affect the views of some jurors as to the quality of their evidence. Those holding extremely strong (potentially bigoted) religious views may dismiss everything the witness says in light of their affirmation.”

I'm not sure whether it can truly be said that a witness' decision to affirm is a statement relating to their personality – would a witness' personality not contribute to their demeanour, thus assisting a juror's assessment of the witness' evidence? Furthermore, according to this logic, it must also be that those swearing an oath to God may risk having their evidence rejected by the potentially bigoted atheist.

In any event, juries are provided with information regarding witnesses that may be of little relevance to the assessment of the facts of a case. Witnesses are asked their occupation. Using Mr Templeton's argument, that question should no longer be put to witnesses lest jurors exhibit prejudice toward unemployed people, tax collectors, Church of Scotland Ministers, Catholic Priests or lawyers, for example.

However, the justice system does not operate on the basis that humans are robotic. An effective system of justice recognises human fallibility and takes steps to reduce the risk of individual prejudice resulting in a miscarriage of justice. What it should not do is to suffer criticism based upon speculation.

The real question is whether our system requires further protection from the risk of potential prejudice described by Mr Templeton.
Juries are already given legal direction that they must decide their verdict only on the facts of the case. There are 15 jurors, thus lessening the risk that an individual's prejudice would be the deciding factor. These 15 are picked at random from the electoral register.

I accept there is the possibility that a juror might hold prejudiced views about religion, atheism, police, lawyers or anything else. However, I find it difficult to accept that the decision of a witness to affirm is given any priority in a juror's mind. I cannot think of a single occasion where I have had any concern that a jury might be influenced by a witness' decision to affirm or for that matter, take the oath. I cannot think of any occasion where I have heard of such a situation arising. It seems to me wholly inaccurate to suggest that this is a pressing and inherent fault in our justice system.

Nevertheless, it might be that Mr Templeton's proposed solution of a single oath has attraction for another reason. I would venture that from the witness' perspective the question of whether to swear an oath or affirm does nothing to detract from an already anxious occasion. It may just be a question of simplicity. It is neater to have one oath for all – the function of which is to confirm that the witness is promising to tell the truth and is accepting the consequences if that promise is broken.