Veils in court: this compromise ruling struck the wrong balance
The ruling that a Muslim woman must when she gives evidence at her trial but may wear her niqab for the rest of the hearing demands closer scrutiny than it has so far received.
Judge Peter Murphy delivered a that is learned, readable and persuasive. It is also, in my view, wrong.
Murphy is no ordinary circuit judge. Before joining the bench in 2007 he practised and taught law in both London and the US. The author of a standard textbook on evidence, he was the founding editor of , a comprehensive handbook now in its 23rd edition.
Although the judge heard oral argument at Blackfriars crown court in London last Thursday, his written ruling was not something he had knocked up over the weekend. In a comprehensive 36-page judgment, Murphy made it clear that he was dealing with all face-coverings, not head-coverings, and that his ruling should apply both to male or female defendants of any or no religious faith. It follows that he would not allow a biker to give evidence while wearing a crash helmet with the visor down.
He was also careful not to get distracted by the question of whether an individual Muslim sincerely believed that she should keep her face covered in the presence of men who were not close members of her family. It would be unseemly and ultimately impossible to decide the degree of sincerity in individual cases, the judge suggested. A court should assume sincerity unless there was evidence that a face-covering was being worn as some sort of disguise.
Murphy also stressed that he was dealing only with the case of a defendant facing trial in the crown court. His ruling did not apply to witnesses or jurors. Nor did it apply to parties in civil or family cases. Still less, of course, does it apply to students at colleges or people walking down the street.
Guidance on the wearing of veils in court was by the judicial body responsible for training judges. The guidance left open the possibility that a defendant might be allowed to give evidence while wearing a niqab and "the best way of proceeding comes down to good judge-craft". That's a surprising error, as Murphy points out. It's actually a question of law. gives everyone the qualified right to manifest their religion or belief. It's qualified in the sense that it is subject to such restrictions as are necessary to protect the rights and freedoms of others. Those others, in Murphy's view, include people who come before the courts as claimants, witnesses and jurors – as well as the public at large. So there has to be a balance.
The defendant in this case is charged with witness intimidation. She is alleged to have committed the offence while wearing the niqab, a dark veil that covers the entire face except for the eyes. No issue of visual identification will arise at the trial, the judge said. But we may assume that the complainant – the man she is said to have intimidated – will give oral evidence.
As Murphy said:
It is unfair to ask a witness to give evidence against a defendant whom he cannot see. It is unfair to ask a juror to pass judgment on a person whom she cannot see. It is unfair to expect that juror to try to evaluate the evidence given by a person whom she cannot see, deprived of an essential tool for doing so: namely, being able to observe the demeanour of the witness; her reaction to being questioned; her reaction to other evidence as it is given. 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.
Murphy correctly identified the balance that he had to strike. But he then struck it in the wrong place. He rightly said that the jury must be able to see the defendant if she gives evidence. But he did not think she should have to remove her veil at other times. "While it remains true that juries scrutinise defendants throughout the proceedings and take note of a defendant's reaction to the evidence as it is given throughout the trial," the judge said, "I am not persuaded that this is of sufficient importance to require a restriction on the defendant's right to wear the niqab."
The problem, as the judge implicitly acknowledged, is that the defendant is under no obligation to give evidence. Indeed, Murphy would not allow her to do so if she refused to remove her niqab. In that event, the jury might not see her face. Crucially, the jurors would not be able to assess her demeanour while her alleged victim gave evidence.
Neither would he. Of course, in a case of alleged intimidation the complainant might not wish to look at the defendant's face while in the witness box. On the other hand, he might wish to do just that. Whether a witness should be able to see the defendant while giving evidence should be a matter for the witness and ultimately the judge to decide, not the defendant.
In my view, a defendant should be required to show her face throughout her trial. Failure to remove a veil when ordered to do so should be treated as contempt of court.
But I don't wish to be too hard on the judge for not taking that view. His ruling is not binding on any other judge and he clearly hopes it will come before a higher court in order to set a precedent. His compromise ruling gives both sides a basis on which they might appeal.
There is one further aspect of the ruling that causes concern. The judge ruled that no drawing or sketch of the defendant while her face is uncovered must be "published outside court". Normally, court artists are allowed to publish drawings made from memory.
Murphy gives no indication that he heard legal argument from media representatives before restricting their right to freedom of expression under article 10 of the convention. And why should a defendant, acquitted or convicted, be allowed to prevent an image of herself being published? If she continues to wear a veil in public, then nobody will know it's her.
This article was amended on 17 September 2013
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