Muslim defendant must remove veil

Posted: 16th September 2013

NiqaabA Crown Court judge has ruled that a Muslim defendant should be precluded from giving evidence in her own defence unless she allows witnesses and jurors to see her face-to-face. The judge found that the wearing of the niqaab by defendants whilst giving evidence in criminal trials was contrary to the interests of fair and open justice.

The case arose from difficulties encountered in identifying a woman who was to stand trial on a charge of witness intimidation. She declined to remove her niqaab, on the basis that it was against her religion to reveal her face in the presence of men, and had to be identified by evidence from a female police officer who knew her and who was permitted to see her face in private.

In giving directions on the conduct of the trial, Judge Peter Murphy noted that there was no directly relevant domestic authority on the issue and that there was a ‘pressing need’ for clear directions on how criminal courts should deal with such situations. The issue had been the source of much judicial anxiety and uncertainty and there had, hitherto, been a reluctance to address it, resulting in a lack of uniformity of approach.

Whilst accepting the sincerity of the woman’s views and her right to wear the niqaab as a manifestation of her religious beliefs, the judge noted that whether the wearing of the garment by Islamic women was an obligation, or a choice, was not a subject of universal agreement within Islam. It was common experience that the majority of Islamic women go out in public with their faces uncovered.

In seeking to balance the woman’s right to freedom of religion – enshrined within article 9 of the European Convention on Human Rights – against the fundamental importance of a pluralistic, multi-cultural society, the judge noted that the law must apply equally to all those who appear before the Crown Court, regardless of ethnicity, religion or any other personal attributes. There could be no exceptions to, or derogations from, that principle.

Whist recognising that requiring the woman to remove her niqaab whilst giving evidence would cause her ‘some degree of discomfort’, the judge found that it would be ‘unfair’ on other participants in the trial – jurors, witnesses, counsel and even the judge – if she were permitted to cover her face throughout.

The wearing of the niqaab in the witness box would compromise the quality of justice in that judges would be required to sentence defendants that they could not see and jurors would be deprived of being able to observe defendants’ demeanour and reaction to questioning if their faces were covered.

Despite acknowledging the intrinsic merit of the niqaab in the eyes of women who wear it, the judge ruled that a ban on defendants keeping their faces hidden in the witness box was ‘necessary in a democratic society’ and proportionate to any interference with human rights. He concluded: “No tradition or practice, whether religious or otherwise, can claim to occupy such a privileged position that the rule of law, open justice, and the adversarial trial process are sacrificed to accommodate it. That is not a discrimination against religion. It is a matter of upholding the rule of law in a democratic society.”

Giving guidance for the future, the judge said that defendants should be warned in the absence of the jury of the potential consequences of wearing the niqaab. They should be free to wear the garment in court but precluded from giving evidence with their faces covered.

In the particular case, the judge directed that steps be taken to alleviate the defendant’s discomfort in removing her niqaab. Those included permitting her to give her evidence from behind a screen, or by live video link, so that her face could only be seen by judge, jury and counsel. On top of the usual ban on photography in court, the judge directed that no drawing, sketch or other image be made of the woman while her face was uncovered.