Veils and ignorance: defendant not allowed to wear niqaab when giving evidence

Woman wearing hijabThe Queen v. D (R) – Ruling available here.

The ruling by HHJ Murphy in Blackfriars Crown Court this Monday that a defendant in a criminal trial should not be allowed to wear a niqaab (face veil) whilst giving her evidence has prompted calls for a public debate about the wearing of face veils in public more generally. Adam Wagner has already commented on the case hereA summary and analysis of the decision follows below.

The defendant in this case, D, is a woman who is charged with a single count of witness intimidation. When the judge asked D to remove her veil in order to be formally identified for the court’s purposes at a plea and case management hearing, D refused because she believes she should not reveal her face in the presence of men who are not members of her immediate family. As a result, HHJ Murphy listed a special hearing to consider what orders should be made about the wearing of a niqaab during the rest of the proceedings, describing the issue as ‘the elephant in the court room’ which needed to be dealt with early on.

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The Niqaab issue is too important to be left to liberal instinct

A-Muslim-woman-in-a-niqab-007Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said  he wasinstinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.

Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.

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Second Christian B&B case headed for the Supreme Court

black and morganBlack and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.

The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull [2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court. 

This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.

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Sacking GP from government drugs advisor post for ‘anti-gay’ views was lawful

spliffR (Dr Hans-Christian Raabe) v. Secretary of State for the Home Department [2013] EWHC 1736 (Admin)read judgment

Dr Hans-Christian Raabe lost his judicial review challenge to the revocation of his appointment as the GP member of the Government’s Advisory Council on the Misuse of Drugs (ACMD). His appointment was revoked less than a month after he had accepted an offer to join the ACMD, as a result of certain views about homosexuality expressed in a paper he had co-written in Canada some 6 years earlier.

This case deals with a heady cocktail of controversial issues, ranging from same-sex marriage to the level of crystal meth use in gay clubs, and from paedophilia to the ostracising of Christians because of their religious beliefs. Indeed, it hits so many hot-button issues at once that it is very surprising it has not yet received much media coverage, despite the judgment being handed down on 20 June.

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Comment | Abortion and conscientious objection: what about human rights? – Elizabeth Prochaska

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Doogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here and Alasdair Henderson’s commentary here

It is easy to become complacent about women’s reproductive rights in mainland Britain. Compared to our Irish neighbours, women here are able to access their chosen contraceptive, abortion and maternity services with relative ease. When Savita Halappanavar died after she was refused an abortion in Galway, commentators lamented a system where a woman could be told by healthcare staff that she couldn’t have an abortion because Ireland is a Catholic country. We imagined that such events could not happen here. A recent judgment of the Scottish Inner House of the Court of Session (the Scottish Court of Appeal) shakes that belief. Of most concern is that the court failed to engage with the human rights implications of its decision.

Our abortion law is found in the Abortion Act 1967. Section 1 makes abortion lawful only when it has been authorised by two doctors who attest that continuing the pregnancy poses a risk to a woman’s physical or mental health, or where the child would ‘suffer from such physical or mental abnormalities as to be seriously handicapped’. In effect, all abortions, save those for fetal abnormality, are performed on the basis that there is a threat to the woman’s physical or mental integrity as a result of pregnancy. Section 4 excuses a person from ‘participating in any treatment’ under the Act if they express a conscientious objection to abortion. As the Abortion Rights campaign points out, the law gives doctors control over women’s informed choices about their pregnancy that can lead to damaging delays in accessing abortion services.

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Conscientious objection to abortion: Catholic midwives win appeal

human-foetus_1666004cDoogan and Wood v. NHS Greater Glasgow & Clyde Health Board [2013] CSIH 36 – read judgment here

The Inner House of the Court of Session (the Scottish civil court of appeal) ruled last week that two midwives from Glasgow could not be required to delegate to, supervise or support staff on their labour ward who were involved in abortions. 

The ruling makes it clear that the conscientious objection provision in s.4 of the Abortion Act 1967 has very broad scope. This probably means that the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Royal College of Midwives (RCM) and the Royal College of Nursing (RCN) will all need to change their guidance on the subject, since the existing versions take a much narrower view. This judgment affects England and Wales as well as Scotland (since the Act covers all three countries), but not Northern Ireland.

The facts of the case, and the original decision of Lady Smith in the Outer House of the Court of Session are covered in our previous blog post here.

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Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – Robert Kellar

121221-university-college-unionMr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment

In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.

The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.

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