ii) Oath

(ii) Oath

The second ingredient of this crime is that the false testimony shall have been given on oath lawfully administered by the competent authority. In some other systems of law this requirement is not essential. Thus, in article 214 of the Italian Code of 1889 the fact that the deposition is given on oath rather than without it affects only the “quantum” of punishment: “L’ultima parte dell’articolo 214 dimostra non essere condizione necessaria del delitto in esame la prestazione del giuramento da parte di colui che falsamente depose. Ciò non e’ più necessario - così la relazione ministeriale sul progetto del 1887 - dopo che, per il progresso della scienza e della civiltà, la falsa testimonianza ha cessato di essere un reato contro la religione, ed e’ divenuta, secondo l’intrinseca sua natura, un delitto contro l’amministrazione della giustizia”124 .

The oath is not required either by the present Italian Code (Article 372). But in our law, as in the English law, if the testimony is not given on oath, no statement or affirmation however false will constitute this crime. By Section 15, sub-section 1 of the Perjury Act, 1911125 , for the purposes of that Act, the form and ceremonies used in administering the oath are immaterial if the court or person before whom the oath is taken has power to administer an oath for the purpose of verifying the statement in question, and if the oath has been administered in a form and with ceremonies which the person taking the oath has accepted without opposition or has declared to be binding on him. But Section 528 of our Criminal Code prescribes the form of the oath to be administered to witnesses, that is:

“You A.B. do swear that the evidence which you shall give shall be the truth, the whole truth and nothing but the truth. So help you God."

And in civil matters Section 109 of the Code of Organization and Civil Procedure lays down that:

124 Maino, para. 1112 125 1 and 2 Geo. 5c 6

“witnesses or other persons required to take the oath shall swear to tell the truth, the whole truth and nothing but the truth.” By Section 111 of this Code (applied to Criminal matters by Section 513, Criminal Code), the oath must in all cases be taken personally by the person to be sworn in the hands of the registrar. (Vide Sections 576, 595, 672 of the Code of Organization and Civil Procedure). It is further provided by Section 108 of the said Code of Organization and Civil Procedure that:

“Persons professing the Roman Catholic Religion shall be sworn according to the form acknowledged by such Religion: and persons not professing that Religion shall be sworn in the manner which they consider to be most binding on their conscience” .

The same thing is provided by Section 627 of the Criminal Code.

We have said that in order that this crime of false testimony may subsist it is essential that the false deposition shall have been given not only on oath but also that the oath shall have been lawfully administered by the competent authority. The forms and formalities above mentioned must therefore, where applicable, have been observed. The French Court of Cassation held several times, for instance, that this requirement had not been complied with, where, in the administering of the oath, the word “all” (the truth) had been omitted, as also where the words “nothing but the truth” had been omitted. As Carrara observes, the words “You swear” even without any addition may be sufficient, from a religious point of view, to direct the witness’ attention to the sanctity of the oath: but the same cannot he said from a legal point of view: because the witness might think that his only duty under the law is not to falsify the truth on those circumstances about which he is interrogated but that he has no further duty to disclose everything that may be relevant to the proceedings and also the duty to be truthful in whatever he says without being interrogated. Hence the real importance of that form, which is not satisfied by the mere word "I swear” although this may be sufficient to make the deponent comprehend his religious obligation126 .

However, although, as we have said the “oath” is essential, Section 108 of the Criminal Code provides that:

126 Op. cit., para. 2668, n. 1