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

The 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 here. A 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 9. In 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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