The truth and “the whole truth”

Last week, the former First Minister of Scotland Alex Salmond drew attention to “the whole truth” in the oath normally administered in sworn testimony.

The Committee on the Scottish Government Handling of Harassment Complaints (Committee of Inquiry) had invited him to speak to the Inquiry as he had been the victim of a miscarriage of justice and had been awarded substantial costs.

Last week, he claimed that as his evidence to the Committee had been redacted, he would be unable to speak “the whole truth” to the Committee as required by the oath. After pulling out of giving evidence and further negotiation, he finally gave evidence on 26 Feb 2021.

Salmond summarised six items from his evidence for his proof that there has been a malicious plan against him, but he did not include the First Minister Nicola Sturgeon in this plan for lack of evidence, evidence that he suggested was available as part of “the whole truth”, but his evidence had been redacted and further evidence had not been called for.

He gave an exemplary performance on how to keep to one’s evidence, which has been described as ‘a barrage of howitzers’, and only once in six hours of testimony was he drawn into going beyond the evidence presented to the Committee of Inquiry when he invited to give his own opinion based upon other evidence in his possession. His concluding statement offered a solution for the Committee how it may obtain more evidence to inform its questioning of the Lord Advocate tomorrow and the First Minister in two days’ time. It seems that the Committee has acted upon this advice and called for more evidence in the possession of Salmond’s own lawyers.

However, there has been little comment on “the whole evidence” and how Salmond solved this issue to his own satisfaction. He himself said in evidence: “Not to fulfil my oath and tell the truth, the whole truth and nothing but the truth would be a contempt, but the Crown Office says that it might lead to prosecution. People should just stop and think for a moment about that.” Indeed, and this is what this blogpost does.

The oath is intended to prevent persons withholding relevant evidence but on the face of it “the whole truth” is also an invitation to tell the Committee or Court what it might not want to hear. Those under oath are constantly admonished to “keep to the question and to answer the question”, tending to negate and expose the contradiction inherent in “the whole truth” requirement in the oath. Salmond explained the dilemma he was in, but it cuts both ways and possibly many ways. The two ways just mentioned here are supplemented with a third issue.

Alex Salmond’s point is that he was prevented from stating the whole truth about the current First Minister Nicola Sturgeon and the “malicious plan” hatched against him. Alex Salmond wants to disclose ‘the whole truth’, to which he is entitled by this oath, and he has exposed the horns of the dilemma, but I reverse the point and ask how any court or body of people can hope or expect to extract ‘the whole truth’ from someone, far less command it, and even worse upon oath before Almighty God. This point goes much further than Salmond’s point, and I have never been disabused of it by any relevant information in several decades.

The ‘whole truth’ is an impossible counsel of perfection

We are told that a good interrogator can make any person contradict themself. I do not believe this, but it is commonly said. This is why lawyers advise their clients to ‘say nothing’ or simply to say, “No comment.” This being so, how can anyone speak “the whole truth” without being convicted of perjury if the court chooses to follow it through.

The law is brought into disrepute by its failure to prosecute those who have perjured themselves in courts of law. The courts do not do so, and this alone shows the contradiction in demanding “the whole truth” and how little store is put upon the oath unless a prosecutor chooses to focus upon it. Although perjury must be a regular occurence in court proceedings, in spite of the oaths and affirmations, pursuing perjury is only rarely done, on the principle that it is not in the public interest. The most notable case in recent times was the record-breaking most expensive and longest perjury trial in Scottish history against Tommy Sheridan who had won his libel case against the News of the World (NOTW). NOTW appealed the decision and Sheridan was convicted of perjury on 26 January 2011, within a few months of 10 July 2011 when the NOTW closed after 168 years of publication following the exposure of its disgraceful behaviour in tapping the phone of dead schoolgirl Milly Dowler – a providential coincidence as notable as the lightning strike (‘an act of God’ on insurance policies) on Durham Cathedral within days of the inauguration of the Bishop of Durham, David Jenkins, a publicly unorthodox teacher.

The law is also brought into disrepute by its selectivity about the truth – lying to the police or to a court is reckoned to be worse than oaths that blaspheme the God Whose name is used in the oath. Tommy Sheridan could justly inquire why others had not been similarly pursued by the law.

The Westminster Assembly Shorter Catechism expounds the third commandment about false swearing by God’s name saying: ‘The reason annexed to the third commandment is that however the breakers of this commandment may escape punishment from men, yet the Lord our God will not suffer them to escape His righteous judgment.’

Westminster Shorter Catechism, Answer 56.

The law is also brought into disrepute by the number and speed of change of the law, with the almost inevitable danger that prosecution becomes partial.

An impossible oath

The ‘whole truth’ suggests, implies and presupposes a perfect memory. Ronald Reagan famously used a faulty memory as an excuse, but he subsequently developed dementia. The current First Minister is far from having dementia but she has claimed a lapse of memory as part of her defence in the Salmond-Spurgeon saga, for which she is also under investigation for possible breach of the Ministerial Code, having self-referred herself to James Hamilton, the Scottish administration’s independent adviser for investigate.

The “whole truth” is a demand that expects too much from those to whom the oath is administered. So much so that the oath was successfully challenged and reviewed in the US some decades ago, where certain modifications of the oath are now considered acceptable so long as they demonstrate “a moral or ethical sense of right and wrong”. It held that “the form of the oath must be crafted in a way that is meaningful to the witness”, which raises the topic of consent (see below).

An injustice

The “whole truth” part of the oath contradicts the right to silence. Jesus Christ exercised the right of silence in His trumped-up trial. I am not in the habit of telling lies, but neither am I in the habit of telling the whole truth, because the Bible does not require us to do so, and I am not convinced that the courts of the land have the right to require it either. Christian parents teach their children that it is not necessary to tell Mrs Such-and-Such the whole truth about her awful new hat when she asks them for their opinion of it. What is the justification for requiring it even in solemn proceedings? Being a very old formula, was it a method in former times of obtaining evidence by hoping the person would incriminate themselves? Can anyone state the case for it adequately?

Exceptions

There are exceptions in law whereby a person is permitted not to testify against their spouse – although Humza Yousaf’s Hate Crime Bill threatens this provision – and this being so, how many other exceptions does the ordinary citizen know about or is told when he takes the stand to swear such an oath? Yet again, he needs a lawyer at his elbow to inform him of this rights and how to avoid perjuring or implicating himself in the face of such a comprehensive oath. a necessity which is itself contrary to natural justice.

The ‘whole truth’ circumvents informed consent

An oath is in the sight of God and makes use of His name. Many conscientious and God-honouring persons will have difficulty with such an impossible oath as requires ‘the whole truth’ to be told.

Fundamentally, on the principle of ‘informed consent’, if a court expects me to make such an oath, the court is obliged to explain to me what this oath actually means. What does it mean by ‘the whole truth’? Will the court have the patience to explain it fully to me as I challenge each point it articulates?

Alex Salmond seemed to think that he could not fulfil this oath but ultimately he submitted to the Committee of Inquiry’s terms by keeping himself firmly within what his evidence supported. In his six hours of testimony I noticed his allowing himself to be draw beyond this only once, by invitation towards the end of a long gruelling day in which he showed many a person how to keep to the facts and not to speculate. His situation, where he had additional, available evidence, which could assist the Inquiry, is the purpose behind “the whole truth” provision. It is also has implications for the double jeopardy provision, about which I wrote to Lord Donaldson, the Master of the Rolls, in the 1990s, pointing out that deliberately withheld evidence could be ‘discovered’ later as ‘new evidence’ to challenge an unfavourable verdict. In this way ‘newly discovered’ evidence could be presented until a favourable verdict is obtained.

The limitations of oaths

For the benefit of those whose Scottish education has failed them, oaths were analysed during the 16th-century European Reformation. Martin Luther began the subject by asserting that the vow of celibacy was unbiblical and renounced his own vow of celibacy. Over the next 150 years the role of authority – both civil and ecclesiastical – was examined in detail and worked out most fully in Scotland, which was once the most literate nation on Earth as a result of this religious Reformation. The famous Westminster Assembly produced its Confession of Faith and chapter 22 is called Of Lawful Oaths and Vows. It begins: “A lawful oath is a part of religious worship, wherein, upon just occasion, the person swearing solemnly calleth God to witness what he asserteth, or promiseth; and to judge him according to the truth or falsehood of what he sweareth.” Notice the qualification – ‘upon just occasion’. It goes on: “The name of God only is that by which men ought to swear; and therein it is to be used with all holy fear and reverence. Therefore, to swear vainly or rashly, by that glorious and dreadful Name; or, to swear at all by any other thing, is sinful, and to be abhorred.” It has more to say: “Whosoever taketh an oath ought duly to consider the weightiness of so solemn an act; and therein to avouch nothing, but what he is fully persuaded is the truth. Neither may any man bind himself by oath to anything but what is good and just, and what he believeth so to be, and what he is able and resolved to perform. Yet is it a sin to refuse an oath touching anything that is good and just, being imposed by lawful authority.” It has more to say, which can be read here.

There is nothing wrong with requiring a person to tell “the truth and nothing but the truth” – this is what we all ought to do all the time. The godly are well practised in this exercise. It is because they are familiar with it, that they understand the limitations, impracticality, injustice and impossibility of telling “the whole truth”, especially when lawyers cut you off in mid-sentence. Let them make up their mind. Do they want the whole truth or don’t they? Meanwhile, the oath is faulty and by bringing God’s name into it it becomes an abomination.

The Alex Salmond case has not only brought Natural Justice to the fore, but it has brought oath-taking to the fore. This is a good thing, and it might even lead to a review of the swearing that is now commonplace even on the BBC. Political correctness has not yet reached blasphemy and swearing.

It should also begin a debate on the prejudicial and defamatory effect of blunderbuss charges, which might lead to a review of media standards as journalists struggle to remember or at least to report the facts correctly. Is this too much to ask or to hope? Reporting the facts would be a good beginning and then we might arrive at the truth. It might even filter through to social media and expose fake news for what it is.

Update:

2 Mar 2021: Deputy First Minister John Swinney has been ‘persuaded’ to release the long-sought legal advice given to the SNP administeration under threat of a vote of no confidence in today’s Scottish Parliament, but Conservative MSP Murdo Fraser has tweeted that if it is only partial the vote of no confidence will go ahead.

John Swinney, the next SNP MSP to come under the squeeze

2 Mar 2021: the Convener of the Committee of Inquiry gave her opinion that an oath is to oneself, although she admitted that she was not a legal person. The Lord Advocate made an afffirmation and explained his understanding

3 Mar 2021: Nicola Sturgeon gave her version of event to the Committee of Inquiry. They are quite intelligible, although others cannot understand them. The most damaging evidence is failing to follow Police advice when criminality was suspected, raising questions about the civil service. Sturgeon gave long, repetitious answers, to which Jackie Baillie failed to listen, asking Sturgeon to answer for a fourth time what had been repeatedly explained, when time was short in the last half hour, leaving no time for Margaret Mitchell‘s questions at the end, which so rattled her that Mitchell went on a rant. Questions remain, awaiting further evidence from Alex Salmond. The political spin continues apace on twitter.

4 Mar 2021: Scottish Tories mock Sturgeon’s lack of memory, demonstrating the state of social media identity debate.

5 Mar 2021: lack of memory is a standard defence. Is it the truth far less the ‘whole truth’? However, it reminds us that people are innocent till proven guilty and prosecution should not depend upon the memory of the accused. It should have its own evidence.

8 Mar 2021: even the 19th-century barristers were reputed at tripping up people’s testimongy.

“Now, I have never had the privilege of being bamboozled by a barrister. I have sometimes wondered what I should do if I were put into the witness-box to be examined and cross-examined. I think I should simply stand-up, and tell the truth as far as I knew it, and should not make an attempt to display my wit, or my language, or my judgment. If I simply gave straightforward answers to his questions, it should beat any lawyer under heaven.”

Charles Haddon Spurgeon, ‘The Prince of Preachers’, in The Soul Winner, 1993, p. 76.

Of course, it is not new. Jesus’ opponents tried to entangle Him in His talk (Mat 22:15) but were quite unable to do so. The whole passage is worth reading to show how Jesus sorted out these entanglers.

9 Mar 2021 : “False confession” is a manifestation of this ability to turn truth into error through coercive interrogation techniques. Academic research and experience has uncovered the reality of this counterintuitive reality, the Central Park Five being one of the most noticeable and easily recalled examples. The disinterest in the truth is manifest in the immunity afforded to prosecutors whereby the police are allowed to used trickery and lies to secure a confession, and all defence attorneys are against this. Some interrogations are not to obtain information but to obtain a confession. If a conviction cannot be secured without lies it makes a mockery of “the whole truth” oath. Rubbish in – rubbish out. If the legal system expects truth in the trial, why does it not insist upon truth in the prosecuting process and make lying prosecutors culpable? It is a tissue of lies. There is plenty of room and time for reforming the legal system. All interrogations should be audio or video taped, but even this can be selective and we need to recollect that there are many quasi-judicial circumstances in employment that need review and improvement.

16 Mar 2021: BBC Newsnight discussed the conviction and imprisonment of Oliver Campbell, a teenager with learning difficulties, who was convicted in 1990 on a confession made in the absence of his solicitor. The programme shows his barrister suggesting that the police knew that they would not get a confession in the presence of his solicitor and so it was arranged to interview him in his absence. Having served his time, Oliver Campbell now says that he was pressured into saying things he did not want to say, and that he was innocent of the crime for which he was convicted. The desire to ‘get results’ rather than the truth is a damaging feature of modern life.

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