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

18 September 2013 by

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.

The decision

HHJ Murphy made clear that his judgment is limited in scope. It applies only to defendants before the Crown Court. It is not necessarily to be followed in the civil or family courts, or in the criminal courts when a woman wearing a niqaab appears as a witness, juror or advocate. However, having restricted the scope of his ruling he then expressed some frustration with the idea that the niqaab issue should simply be dealt with by guidance or left to ‘judge craft’. As he noted, it is a matter of law and relegating it to a point of guidance simply leads to uncertainty and judicial anxiety.

D’s right to manifest her religion was obviously engaged and HHJ Murphy emphasised that the niqaab “is worn by choice by many spiritually-minded, thoughtful and intelligent women, who do not deserve to be demeaned by superficial and uninformed criticisms of their choice.” However, under Article 9(2) this right may be limited to prevent disorder and crime or protect the rights and freedoms of others. As HHJ Murphy explained:

It must not be forgotten that the defendant is not the only person whose rights and freedoms are engaged by criminal proceedings. There are also victims. In the present case, there is a complainant, who claims to be the victim of witness intimidation, and who is also entitled to a fair determination of his allegations. It is the task of the Court to ensure that he receives that fair determination. There are also jurors. Twelve members of the public will take an onerous oath or affirmation as jurors to faithfully try the defendant and give a true verdict according to the evidence. It is the task of the Court to provide conditions under which they can discharge that important function. There is also the public. In a democratic society, the public has a strong interest in criminal proceedings being conducted fairly and effectively in the interests of public order and the protection of the rights and freedoms of others. It is the task of the Court to ensure that the public’s interest is protected.

He went on to find that wearing of the niqaab “necessarily hinders the openness and communication” required by an adversarial trial, and that it was unfair to ask a witness to give evidence against a defendant he cannot see or a juror to evaluate evidence given by a person he cannot see. He considered that “These are not trivial or superficial invasions of the procedure of the adversarial trial. At best, they require a compromise of the quality of criminal justice delivered by the trial process. At worst, they go to its very essence, and they may render it altogether impotent to deliver a fair and just outcome. They drive a coach and horses through the way in which justice has been administered in the courts of England and Wales for centuries.

In addition, HHJ Murphy noted that the court cannot discriminate on grounds of religion, so if D were allowed to keep her face covered, the court could not easily refuse the same privilege to others, whether or not they held the same religious belief or none at all.

For those reasons requiring the defendant to remove the niqaab whilst giving evidence was a justified interference with her freedom to manifest her religion. The restriction on her ability to wear the niqaab should be the minimum necessary, but one solution suggested – a trial in front of a female judge and all-female jury – would be discriminatory and hugely difficult to organise in practice. In the end HHJ Murphy identified the following principles:

  1. The defendant has to have her identify confirmed at every hearing; this should be done by asking her to remove the niqaab for this purpose, or if she refuses by adjourning briefly to allow a reliable female witness to examine the defendant’s face in private and given ID evidence in open court.
  2. At all stages the defendant should be offered a choice whether or not to retain the niqaab, advised in the absence of the jury of the possible consequences of her choice, and given time to reflect.
  3. The defendant should in general be allowed to wear the niqaab during trial.
  4. If the defendant gives evidence, she must remove the niqaab throughout her evidence. The court can use screens or a live video link to ensure that the defendant is not seen by anyone other than the judge, jury and lawyers. If she refuses to remove the niqaab she should not be allowed to give evidence and the judge must give the jury a direction (with appropriate modifications) about how to take into account a defendant’s failure to give evidence.
  5. There may be cases, for example where there is an issue of visual identification or suspicion of impersonation, where the above process is insufficient and the niqaab must be removed at other times as well. There may also be cases, for example where the defendant’s evidence would not be significantly challenged, where the niqaab could be kept on.

Wider significance and other cases

As Adam has already pointed out, there is a wider debate happening in many countries about the extent to which it is compatible with human rights to prohibit the wearing of face veils in public.

HHJ Murphy relied to some extent on a recent decision of the Canadian Supreme Court – NS v. R and others (2012) 34 BHRC 579 – which was about whether a prosecution witness could wear a niqaab whilst giving her evidence. However, the position of a defendant is, of course, different and Article 2(a) of the Canadian Charter of Rights and Freedoms is set out in stronger terms than Article 9(2) of the ECHR (it is more like the absolute right in Article 9(1)).

The European Court of Human Rights will soon consider whether the French approach, which is to have a blanket ban on niqaabs and burqas being worn in any public place, is a breach of Article 9In fact, the French ban has already troubled the English courts. In the recent case of R(B and M) v. Secretary of State for the Home Department two asylum seekers sought to prevent their removal to France on the basis that the ban there breached their human rights. Mr Justice Hickinbottom gave that argument short shrift, pointing out that if the House of Lords were reluctant even to second-guess the decision of a school in Luton that pupils should not wear the jilbab (a different form of Islamic dress) in the Begum case, the High Court should be extremely cautious about considering whether the French Government, Conseil constitutionnel and Cour de cassation had breached Article 9.   

At the other end of the spectrum from France are countries like Saudi Arabia, where it is very common for women to wear a niqaab or similar face covering. However, this dress code doesn’t tend to give rise to problems whilst giving evidence in court there because women do not have a right to a fair trial. A woman’s testimony is given only half as much weight as a man’s testimony and women routinely have to deputise male relatives to speak on their behalf.

In the end the route taken by the Crown Court is most similar to the Canadian decision. It is a great deal more complex and difficult to apply than the French or Saudi way of doing things, which is to draw bright lines (albeit in very different places). However, there is much to be said for an approach which wrestles with the question of how best to dispense justice rightly in an increasingly pluralistic society without pretending that the answers are simple or one-size-fits-all.

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  1. Craig Nelson says:

    The issue I take is with the judge’s anxiety in making the decision. Actually judges are entirely the right people to be making these type of decisions. In time a variety of cases will be heard including under the ECHR (possibly reviewed at Strasbourg). These will weigh up the main issues and where there is contradictory evidence it can be aired in court. The idea we need some vast ‘public debate’ about women veiling themselves is a horrendous idea. All the evidence is that such a debate will give voice to extremists on both sides who will then interact with each other in a very bad way. Minorities should be shielded from the harshness of exposure to the majority which is what such a “debate” would be reduced to. The issues that can be raised can be solved, or at least addressed, with balance and sensibly by balancing the issues raised on a case by case basis and it may be a coherent path forwards will naturally find itself. Judges should not fear the role society entrusts to them. The alternative is a lot worse.

  2. frednach says:

    To unveil or keep the faith in the veil is the question? I have no doubt that proceedings in this case must have presented some difficult concepts to grapple with not least in the face of tension with islamophobia in some quarters of our society. In essence the question is a simple one if we apply simplicity which usually makes things simpler and simple, in contrast to a complicated trance which make things become more complicated and often complicating.

    From simplicity the question posed for me is can a juror reach a verdict, make deliberations in this case as to the facts, evidence and eventual verdict with a person wearing a veil.The answer must be in the affirmative, if a jury can make an assessment in other cases where witnesses, victims or indeed the accused can give evidence through a screen there is no reason for this humiliation in asking someone to lift their veil and their modesty no matter how good the intentions of the judge; just as the judge might object to a call for him to lift his gown or wig in his courtroom, so too the right to wear an item of clothing must not be a reason for others to object, after all are we not concerned with the quality of evidence, facts as opposed to a persons feature; are we therefore not inviting a jury to judge a book by its cover than its content, are we really saying that without the lifting of the veil a jury cannot reach a verdict independently of this issue?

    Second, what authority or power does a judge have on this matter of asking an innocent person to complete an act that goes against her religious obligations or undertakings. I cannot see any act or conduct that breaches the rules of the Supreme Court where the judge derives his authority nor can I see any reason why a jury cannot be vetted or indeed challenged on this matter, it may take some time but the defendant is entitled to a fair hearing without feeling that she has to compromise her religious undertakings in front of strangers. should not matters of evidential issues be left to juries as opposed to a judge, after all it is they who have to reach a collective verdict without any judicial interference.

    Third, what of her right to a fair trial under article 6 of the ECHR? Again, if it is right for judgements to be kept from the press and public in cases including protection of private life then this issue has to be weighted even more importantly not least in defending a serious accusation without public unveiling of the accused as employed in other cases thus reducing any risk of harm to that person maintaining her anonymity. Moreover, by imposing an instruction to unveil the judge may make the accused choose not to give evidence at all, thus both compromising her own defence by drawing of adverse inference direction and indeed denying the victim a chance to question disadvantaging these rights only damages the principle of equality of arms and risks tilting the natural fair balance between the parties, thus by depriving choice can lead to an adverse imbalance violating the presumption of innocence and the right to question. .

    The accused here also has a right to claim her fundamental right to express her religion as a person alone or in a community under Article 9, that freedom must give her reign to express her religion manifestly in a public arena without adverse publicity or public discourse, any attempt by the state to abandon her belief by compulsion through physical or mental pressure may be an infringement of that right.

  3. That’s the point, ie, human rights have to be taught and practiced. Suppose an unknown tribe emerges claiming that we should respect their mistreatment to girls, boys, women, animals; certainly only those who have evolved to become humans may recognize and respect what we are hereby discussing.

  4. Andrew says:

    Yes, I think the jury are entitled to read her reactions to all the evidence.

    If she is convicted and goes down what will HMPS do?

    1. Gary holford says:

      I hope they will stop her wearing it in prison so they can always see whether she has already been attacked etc- she may have a cut and is hiding it etc- the prison staff would need to see she is ok for her own protection.

  5. alrich says:

    The legal issue, though, is whether a ban (or partial ban) on the veil is proportionate to the end intended: justice and a fair trial. Murphy notes that this means “there is a rational connection between the aim and the restriction”. Yet no such rational connection is evinced. It needs to be more than tradition or instinct or that veils “drive a coach and horses through the way in which justice has been administered in the courts of England and Wales for centuries“.
    What needs to be shown is that facial clues are an important and accurate source of truth-gauging for the jurors. The debate hasn’t thrown up that evidence and there are various bits of research that point the other way: considered in these blogposts:

    New Statesman: Bond/DePaulo 2006 study
    Alrich: Feldman/Chesley1984 study:
    Hazel Genn (pdf link in this post by Barrister Blogger):
    And possibly this (noted by Adam Wagner) (though I’ve not read this one).

    If there is no evidence of the importance of facial clues to truth-finding, how can there be a rational connection with attaining justice or a fair trial? How can the ban of something unimportant to justice but important to the religious individual be proportionate?

    1. Gary holford says:

      Alrich: I’d personally ban it as it is intimidating to both jurors and to the bench let alone the witnesses that might attend- why not just say that we can all hide our faces- it wouldn’t work.
      though I don’t hold with racism or the oppression of women- i do hold with a fact that in a court we are meant to have sanctuary from oppression and intimidation and a woman is meant to feel free- not encased in the oppressive indoctrination’s of a culture born in another world.

  6. S. England says:

    The whole description of the decision given in the first sentence of the article is wrong.
    The case decides that a female defendant can cover her face and body from everyone in court, except during the period that the female defendant gives evidence.
    It does not apply to men and is in essence discriminatory.
    It also means that a female defendant who does not go into the box can conceal her body language and facial expressions completely throughout a trial.

    1. Gary holford says:

      Steve; I totally agree and find that this will lead to abuse in one form or another; In a criminal court we are expected to be honest and open and no one is meant to be under intimidation- can you imagine criminals trying to wear a bandana across their face just to intimidate the prosecution etc? Maybe someone ought to try it and say that as a christian we need to protect ourselves from other religions by not showing our faces? This is something I believe is indoctrinated into women using fear!

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