On my blog recently there has
been a discussion about whether a court should give greater weight to the
evidence of someone who is devoutly religious, because they are more likely to
take the oath seriously. This article
considers whether that is the case, and the extent to which the court considers
character when weighing evidence.
There’s some sense in the
original assertion – if a person really believes that God is watching and will
know if they are lying are they more likely to give honest answers?
[That’s the whole basis of Trial by Ingestion – one of
the trial by ordeals of the Middle Ages. The suspect / witness was given dry
bread and cheese blessed by a Priest and if they choked whilst eating them then
they were lying and guilty. To our modern eyes this seems like a deeply
unsophisticated method, but it actually worked in those times because most
people believed that God would watch and intervene and that they would not be
able to get away with their lies. I am wary of writing about Trial by Ingestion
for fear that the MoJ might try to implement it – on the basis that parties
provide their own bread and cheese, of course.]
On the other hand, the
corollary of that would be that judges should routinely give less weight and
suspect people of lying if they were not religious.
Even if you were minded to
believe that, Art 14 of the Human Rights Act prevents a public body
(including a court) to discriminate against a person on the basis of their
religious belief, or lack thereof. It
would also be unlawful to do so as a result of the Equalities Act 2010.
Might the judge consider the
evidence in the light of the way that the oath is delivered? You can imagine
that someone who believes in God might be more punchy and forceful in giving
the oath. Can that be taken into account? Conversely, if someone gives the aath
in a halting, hesitant and doubtful manner, would that not colour how the judge
sees their later evidence?
If an advocate sees a witness
give the oath and have their fingers crossed behind their back, would they be
right to draw that to the court’s attention?
When does a witnesses
EVIDENCE start? Is it in the delivery of the oath, or only after the oath is
given? If the way they deliver the oath
makes them look shifty or guilty, is it legitimate for the court to take that
into account? [I’m afraid that this is a
rhetorical question and I simply don’t have the answer. I think in the ‘fingers
crossed’ example, the oath would probably be administered again and the court
would notionally put the episode out of its mind and give it no regard at all.
And if you believe that would actually work, I admire your faith in the human
If a devout Christian or
Muslim don’t start with additional bonus points purely because of their
religious beliefs, can a court take into account a person’s general character
and values when considering how much weight to give their evidence? When looking at character evidence, a court
is entitled to take into account both reputation and disposition.
If a witness were to be
devoutly religious then it might be possible to adduce evidence that they are
kind, put others first, have a set of values and a moral code and that they
would not breach those values or code lightly. That’s not to say that those
qualities are exclusively held by religious people, but that they might be a
route into establishing them. Nor does holding those values mean that the
witness is incapable of telling a lie or making a mistake.
[I think the ‘incapacity to tell a lie’ would be
reserved in court as a factor for either George Washington or Pinocchio. Sadly,
the first never said it – the story about 'I cannot tell a lie' is erm, a lie;
and the second does lie but just with recognisable ‘tells’. If one were
cross-examining Pinocchio, it might be necessary to request a ruler or tape
measure be deployed during his evidence.]
Family law is rather less
rigorous about character evidence than the criminal law, where there is a
rather different approach to the laws of evidence in any event.
For civil cases, character
evidence is admissible if it follows the tests set out in O’Brien v Chief
Constable of South Wales Police 2005http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050428/obrien-1.htm
evidence, to be admissible, must be relevant. Contested trials last long
enough as it is without spending time on evidence which is irrelevant and
cannot affect the outcome. Relevance must, and can only, be judged by
reference to the issue which the court (whether judge or jury) is called upon
to decide. As Lord Simon of Glaisdale observed in Director of Public
Prosecutions v Kilbourne  AC 729, 756, "Evidence is relevant if
it is logically probative or disprobative of some matter which requires proof ... relevant (ie logically probative or disprobative) evidence is evidence
which makes the matter which requires proof more or less probable".
Article continues below...
4. That evidence of what happened on an earlier
occasion may make the occurrence of what happened on the occasion in question
more or less probable can scarcely be denied. If an accident investigator, an
insurance assessor, a doctor or a consulting engineer were called in to
ascertain the cause of a disputed recent event, any of them would, as a matter
of course, enquire into the background history so far as it appeared to be
relevant. And if those engaged in the recent event had in the past been
involved in events of an apparently similar character, attention would be paid
to those earlier events as perhaps throwing light on and helping to explain the
event which is the subject of the current enquiry. To regard evidence of such
earlier events as potentially probative is a process of thought which an
entirely rational, objective and fair-minded person might, depending on the
facts, follow. If such a person would, or might, attach importance to evidence
such as this, it would require good reasons to deny a judicial decision-maker
the opportunity to consider it. For while there is a need for some special
rules to protect the integrity of judicial decision-making on matters of fact,
such as the burden and standard of proof, it is on the whole undesirable that
the process of judicial decision-making on issues of fact should diverge more
than it need from the process followed by rational, objective and fair-minded
people called upon to decide questions of fact in other contexts where reaching
the right answer matters. Thus in a civil case such as this the question of
admissibility turns, and turns only, on whether the evidence which it is sought
to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense
probative. If so, the evidence is legally admissible. That is the first stage
of the enquiry.
5. The second stage of the enquiry requires the
case management judge or the trial judge to make what will often be a very
difficult and sometimes a finely balanced judgment: whether evidence or some of
it (and if so which parts of it), which ex hypothesi is legally admissible,
should be admitted. For the party seeking admission, the argument will always
be that justice requires the evidence to be admitted; if it is excluded, a
wrong result may be reached. In some cases, as in the present, the argument
will be fortified by reference to wider considerations: the public interest in
exposing official misfeasance and protecting the integrity of the criminal
trial process; vindication of reputation; the public righting of public wrongs.
These are important considerations to which weight must be given. But even
without them, the importance of doing justice in the particular case is a
factor the judge will always respect. The strength of the argument for
admitting the evidence will always depend primarily on the judge's assessment
of the potential significance of the evidence, assuming it to be true, in the
context of the case as a whole.'