Saturday 10 December 2016

Solicitors told to carry Bible and Koran

Law Society warns members it must strictly abide by ruling of President of the High Court, Justice Peter Kelly

Published 24/04/2016 | 02:30

Mr Justice Peter Kelly. Photo: Frank McGrath
Mr Justice Peter Kelly. Photo: Frank McGrath

The Law Society of Ireland has warned its solicitor members that they must always carry a copy of the Bible and the Koran if they are to strictly fulfil an order issued by one of the country's most senior judges.

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The President of the High Court, Mr Justice Peter Kelly, has made it clear that when a solicitor oversees a sworn affidavit, a Bible or other relevant religious text must always be used.

The only exception is where somebody objects to the use of such a text on religious grounds.

Now the Law Society, in a circular seen by the Sunday Independent, has privately warned its members that they must strictly abide by this ruling. Christians use the New Testament, Jews tend to use the Old Testament, while Muslims swear on the Koran.

But Judge Kelly's ruling means that in practice solicitors must now always have a copy of the Bible or Koran in their possession during working hours, in case they have to administer an oath and neither is available.

A legal source said the judge was well known for his strongly held views on certain issues and this ruling was in line with his overall approach to such matters.

It is understood that the Prison Service does not have copies of the Bible or Koran available in a number of institutions.

In such situations, it is incumbent on a solicitor to make their own arrangements when overseeing the swearing of an oath.

However, Judge Kelly has insisted that proper procedures must be adhered to under all circumstances.

The judge has clearly indicated that if a Bible or other religious text is not available in certain situations, the administering of the oath must still be conducted as per legal guidelines.

He has warned solicitors that the behaviour of their profession must be trusted in this regard and stressed that a solicitor, who is also an officer of the court, carries out his or her duties under legal constraints.

The Oaths Act of 1888 is the primary legal source in this area.

Every solicitor within the State who holds a current practising certificate is also entitled to administer oaths and to use the title 'Commissioner for Oaths'.

The Law Society points out that a Commissioner for Oaths is a person who is authorised to verify affidavits - sworn statements made in writing.

A commissioner may be required if a person is giving evidence on an affidavit related to court proceedings.

A solicitor may also be needed in "making an affirmation, declaration, acknowledgement, examination, or attestation", for the purposes of a court hearing or the registration of documents.

One of the main functions of a Commissioner for Oaths is to make sure that the evidence in question is in written form.

They must also establish that their client has read the draft affidavit in question - and that there is a full understanding of its contents.

There must be a sworn declaration that the contents are true by the person raising the "appropriate testament" in their right hand and then repeating the words of the oath. The legal guidelines explicitly point out that a person who is Jewish may swear the oath by raising the Old Testament.

The Law Reform Commission conducted an inquiry into the issue of "oaths and affirmations" in 1990.

Among its recommendations was that the oath should be abolished for witnesses and jurors and for "deponents" submitting affidavits in all civil and criminal proceedings. A deponent is any person who testifies under oath - in a deposition or in writing - by signing an affidavit.

It also recommended that any juror, or any other person, who may at present be required to take an oath in judicial proceedings, should be required instead to make a "solemn statutory affirmation" before giving evidence.

Sunday Independent

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