‘When a Muslim takes the oath with the Bible’

IT IS interesting when lawyers produce new points of law to a court. It shakes up everyone, it startles many, and it leaves others, especially lawyers, with a bemused look on their faces. It sends many scrambling to the law books to research the point, to counteract it, while the presiding officer has to decide one way or the other. So when attorney Pamela Elder called for an inquiry after Brent Danglade, a prosecution witness in the Yasin Abu Bakr conspiracy to murder preliminary inquiry swore on the Bible although he admitted he was a Muslim, eyebrows raised in the courtroom last Wednesday.

Danglade, 26, swore on the Bible when he started his evidence on Tuesday. Before he was cross-examined on Wednesday, he again swore on the Bible. Minutes into his cross-examination on Wednesday, Elder stopped and informed Chief Magistrate Sherman McNicolls that the witness had not taken the proper oath. Elder said Danglade had admitted to being a Muslim, yet he swore on the Bible. She said for his testimony to be lawful, the witness should have sworn on the Koran. She said Danglade admitted in the witness box that he acknowledges the Koran...and the Koran alone. “This has serious implications, not for this case alone, but for other cases. If  this witness is found to have told untruths, then a question of perjury does not arise because he did not take a lawful oath.” Elder called on the Chief Magistrate to determine whether Danglade took the oath which was binding on his own conscience. She said a “voir dire” had to be conducted to determine the validity of the oath taken by the witness. Elder produced one legal authority to support her submission. It was the case of Peter Kemble (1990) 1 WLR 1111, which dealt with the lawful administration of the oath whereby a Muslim took the oath on the New Testament.

In that case, Kemble was charged on indictment with a firearms offence. The chief prosecution witness, Tareq Hijab, was a Muslim by conviction and religion, but he took the oath on the New Testament before he gave evidence. Kemble was convicted and applied for leave on the ground that as Hijab was a Muslim, according to the strict tenets of the Muslim faith, no oath was valid unless taken on the Koran written in Arabic, thus there had been a material irregularity at the trial. At the hearing of the application for leave to appeal, after being sworn on the Koran in Arabic, Hijab was allowed by the court to give evidence and stated that whether he took the oath on the Koran, or on the Bible, or on the Torah, he would consider it binding on his conscience. The court, applying the above principles to the facts, concluded that Hijab had been properly sworn; there was no irregularity, material or otherwise, nothing unsafe or unsatisfactory about the conviction and accordingly, the application would be refused.
Before this happened, the court heard from an expert Professor Yagub-Zaki who said no oath taken by a Muslim is valid unless it is taken upon the Koran, and moreover taken upon a copy of the Koran in Arabic.

The court said there were many sub-rules which govern the taking of oaths by persons of the Muslim faith, according to the Professor. For instance, a woman who is menstruating, and therefore considered to be unclean, cannot take a valid oath upon the Koran. The Lord Chief Justice, Mr Justice Owen added, “We take the view that the questions of whether the administration of an oath is lawful does not depend upon what may be the considerable intricacies of the particular religion which is adhered to by the witness. “It concerns two matters and two matters only in our judgment. First of all, is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and most importantly, is it an oath which the witness himself considers to be binding upon his conscience?”

Did Brent Danglade consider the oath binding on his conscience?
Deputy Director of Public Prosecutions (DPP) Carla Brown-Antoine pointed out that the oath taken by Danglade did not invalidate the evidence that was given on Tuesday. “There is no evidence that what the witness did was wrong. If the witness says that he is bound by the Bible, then we go on. If there is anything inadmissible, it will be what my learned friend led today.” McNicolls said he did not think he had the authority to conduct an inquiry into the matter. Elder replied, “What we have here is a Muslim swearing on the Bible.” McNicolls said, “The witness must give an explanation as to why he swore on the Bible rather than the Koran.” Brown-Antoine: “I am not agreeing to a “voir dire” at this stage.” Elder said she was in favour of the Chief Magistrate asking the witness questions on the issue. “Because, his situation may change as to his religious beliefs. He may leave here believing that he is a Muslim, and when he returns he may believe in anything.”

McNicolls said he needed time to consider the matter. He returned 27 minutes later with a decision. He said he consulted with the DPP (as he is required to do under Section 22 of the Indictable Offences (Preliminary Inquiry) Act), and was referred to a passage in the Archbold. But Elder said this was not an issue of credibility but whether the witness was properly sworn. “It is imperative that the witness take the proper oath. Credibility will come after. This situation will cause alarm, it is something serious,” she added. She asked, “What if a Christian goes into the witness box and swears on the Koran?” Brown-Antoine said there were no grounds for holding a “voir dire” at this stage as to the competence of the witness. “What is important is what was the oath taken at the time, it is not what you believe in.” Elder replied, “What is the oath without the book? It is a combination of both. This should cause judicial eyebrows to be raised. This is why we should have an inquiry.” The witness was recalled and questions posed to him by the Chief Magistrate. He admitted to taking the oath on the Bible and said he was going to talk the truth, and that it was binding on him to speak the truth. The Bakr case continues on Thursday.