Judge Murphy’s ruling in R v D (R) on wearing of niqaab in court

Posted on 17th Sep 2013 in Case Comment

Image from The Guardian

Image from The Guardian

A Muslim woman appearing as a defendant in the Crown Court could be required to remove her niqaab when giving evidence, though she was free to wear it during other parts of the trial. To limit the restriction on her religious freedom, she would be permitted to give evidence from behind a screen, shielding her from public view, but not from the judge, the jury, and counsel; or by means of a video link.

Judge Peter Murphy, sitting in the Crown Court at Blackfriars, so ruled yesterday in a reserved judgment  in the case of Regina v D (R).

What follows is not a law report, but rather a digested abridgement of the judgment, which should ideally be read in full. It can be downloaded from the Judiciary website.

Veiled threats

The issue arose when the defendant, referred to in the judgment as D (though she has been named by some news media), refused to remove her niquaab (a black veil which covers the entire face except for the eyes), in order to offer a plea to a single charge of witness intimidation at a pre-trial plea and case management hearing in the Crown Court at Blackfriars.

The defendant was alleged to have committed the offence while wearing the burq’a and niqaab. No issue of visual identification would arise at trial. There was, however, an issue of identification for the purposes of the trial itself. The court had to be sure the defendant in the dock was the person alleged to have committed the offence. At the pre-trial hearing on 22 August 2013, the judge requested that D reveal her face for the purposes of identification. She refused to do so on religious grounds. The judge in turn declined to accept her plea, and adjourned the matter for full argument and an expert report.

At the renewed hearing, the issue of identification was resolved by a compromise under which a woman police officer who knew D was given an opportunity to verify D’s identity in private without her niqaab and then to confirm her identity to the court.

The elephant in the court room

Judge Murphy emphasised that his judgment addressed only the case of a defendant before the Crown Court. His purpose was to give directions for the conduct of the present proceedings, and was not intended to cover other types of hearing or courts, or situations where a woman was attending the Crown Court as a witness, juror or advocate, all of which might require different considerations. But there was, he said, a “pressing need” for a court to provide a clear statement of law for trial judges. To adapt an oft-used phrase, the issue of the niqaab had become “the elephant in the court room”.

The issue was not merely one of “judge craft” or “general guidance” as the Equal Treatment Bench Book (JSB 2004, ch 3.3, 2009) suggested. It was a question of law. And it was one on which there was no domestic authority directly on point.

Governing principles

The court recognised that all who lived in England and Wales enjoyed freedom of conscience, freedom of religion and freedom of religious expression. The corollary of the right of conscience and freedom of religion conferred by the law, including article 9 of the European Convention on Human Rights, was that those who lived in the jurisdiction had an obligation to respect its institutions, including the courts. They had an obligation to obey the law, to participate in court proceedings when compelled to do so by law, and in so doing, to respect and follow the rules and practice of the Court.

There were three governing principles underlying the practice of the Crown Court.

First, the rule of law. In essence, this meant that the law of the land must be the basis of all decisions taken by the court, and that the law must apply equally to all those who came before the court.

Second, the principle of open justice. The primary meaning of open justice was that criminal proceedings should be held in open court, in public, and be open to reporting by the press: see Attorney General v Leveller Magazine [1979] AC 440, 450, per Lord Diplock. Any derogation from open justice should occur only in exceptional circumstances and where the interests of justice required it. The Court could not derogate from this principle for lesser purposes, including that of sparing the feelings of a defendant: cf. R v Malvern Justices, ex parte Evans [1988] QB 540.

Third, the principle of adversarial trial. The adversarial trial was central to the administration of criminal justice in England and Wales, and the Crown Court relied on it to conduct trials in accordance with the rule of law. It was based on the proposition that the truth was most likely to emerge when:

  • the prosecution and defence were free to present their conflicting cases;
  • to an impartial jury;
  • in accordance with law and the rules of evidence and procedure;
  • enforced by an impartial judge; and
  • in open court in a public forum.

It was essential to the proper working of an adversarial trial that all involved with the trial – judge, jury, witnesses, and defendant – be able to see and identify each other at all times during the proceedings. This was partly a matter of identification, but the principle was much wider than that. If a fair trial was to take place, the jury (and for some limited purposes, the judge) must be able to assess the credibility of the witnesses – to judge how they react to being questioned, particularly, though by no means exclusively, during cross-examination. That applied equally to the defendant’s evidence.

These long-established propositions were recognised not only at Common Law but more widely in states bound by the fair trial provisions of article 6 of the European Convention on Human Rights.

While the law permitted no derogations from the principle of the rule of law, it did permit derogations from the principles of open justice and the adversarial trial process in limited circumstances. But in each case, there was a reason for permitting an exceptional course and the course was based on specific statutory provisions and linked to the fair and proper administration of justice.

Right to manifest religious belief

The question, according to Judge Murphy, was whether D’s right to manifest her religion or belief under article 9 of the Convention overrode, or must be balanced against, the public interest in the fair conduct of criminal proceedings.

Article 9 contained two distinct rights. The right to freedom of thought, conscience and religion was absolute. But the second right, which was to manifest religion or belief, was a qualified right which by article 9(2) must be balanced against the public interest in safety, public order, health or morals, and the protection of the rights and freedoms of others – as long as any limitation was prescribed by law, necessary in a democratic society, and proportionate.

Restrictions on the qualified right of religious manifestation had to satisfy four legal requirements.

First, the restriction must have an established basis in law. This basis might derive from common law or statute, but must be accessible to the defendant in the sense that the law had been promulgated and was available to the defendant.

Second, the restriction must be legitimate. A restriction was legitimate if it genuinely pursued one of the aims set out in article 9 (2) itself, which are the protection of national security, public safety, the prevention of disorder and crime, and the protection of the rights and freedoms of others.

Third, the restriction must be necessary in a democratic society. That meant more than “useful”, “reasonable” or “desirable”, but not “indispensable”.

Fourth, the restriction must be proportionate in the sense that there must be a rational connection between the objective and the restriction; and the means employed were not more than was necessary to achieve the objective.

The Canadian experience

Thus far, no court in England and Wales had considered how those principles should apply to the specific case of the defendant who wished to wear a niqaab in the Crown Court. But the Supreme Court of Canada had considered the case of a prosecution witness in R v NS 2012 SCC 72; [2012] 3 SCR 726.

In that case NS was the complainant in a criminal case of sexual assault. The judge ordered her to remove her niqaab when giving evidence and the Court of Appeal ruled that if the witness’s freedom of religion and the accused’s fair trial interests were both engaged and could not be reconciled, the witness might be ordered to remove the niqaab, depending on the context. The Supreme Court by a majority dismissed NS’s appeal.

The approach taken by the majority of the judges, led by Chief Justice McLachlin  (involving a case-by-case balancing exercise based on a number of criteria) was persuasive with respect to witnesses, said Judge Murphy, but it must be applied with caution to the present case. First, NS was a case about a prosecution witness, and while a defendant might be a witness, she was before the court on a very different basis and occupied a more significant role in the trial. Second, the majority’s analysis treated the right to freedom of religion under the Canadian Charter of Rights and Freedoms as an absolute rather than qualified right, thus giving it greater weight against – indeed treating it as equivalent to – the  right to a fair trial.

For those reasons, Judge Murphy said, the majority opinion could not be applied directly.

However, the concurring opinion of Justices LeBel and Rothstein, at paras 58 to 79, stated some propositions which seemed not only correct but capable of direct application to the question whether a defendant should be allowed to wear the niqaab during criminal proceedings. At paras 76 to 78, they had said:

“[76] From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. The principle of openness ensures that the courts and the trial process belong to all regardless of religion, gender or origin.

[77] In the courts themselves … the trial is a process of communication. To facilitate this process, the justice system uses rules and methods that try to assist parties that struggle with handicaps to overcome them in order to gain access to justice and take part effectively in a trial. Blind or deaf litigants, and parties with limited mobility, take part in judicial proceedings. Communication may sometimes be more difficult. But the efforts to overcome these obstacles and the rules crafted to address them tend to improve the quality of the communication process. Wearing a niqaab, on the other hand, does not facilitate acts of communication. Rather, it restricts them. It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question. The niqaab shields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors.

[78] A clear rule that niqaabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society. This rule should apply at all stages of the criminal trial, at the preliminary inquiry as well as at the trial itself. Indeed, evidentiary issues arise and evolve at the different stages of the criminal process, and they affect the conduct of the communication process taking place during the trial.”

The judge’s analysis and conclusions

It must not be forgotten that the defendant was not the only person whose rights and freedoms were engaged by criminal proceedings. There were also victims. In the present case, there was a complainant, who claimed to be the victim of witness intimidation, and was also entitled to a fair determination of his allegations. There were also jurors. Twelve members of the public would take an onerous oath or affirmation to faithfully try the defendant and give a true verdict according to the evidence. There was also the public. In a democratic society, the public had 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.

In his Honour’s judgment, the adversarial trial demanded full openness and communication, which  the wearing of the niqaab necessarily hindered. It was unfair to ask a witness to give evidence against a defendant whom he could not see. It was unfair to ask a juror to pass judgment on a person whom she could not see. It was unfair to expect that juror to evaluate the evidence given by a person whom she could not see, deprived of an essential tool for doing so: namely, being able to observe the demeanour of the witness, her reaction to being questioned, and her reaction to the other evidence as it was given. It was unfair, too, to the judge to ask him to sentence someone he could not see.

Ultimately, the court must be entitled to place some restriction on the article 9 right if it reached the point where the unrestrained exercise of that right interfered to an unacceptable degree with the court’s ability to conduct a trial which was fair to all parties.

Leaving aside questions of identification, his Honour did not think it was necessary to ask a defendant to remove her niqaab for the purposes of the trial generally. But the question of the defendant’s evidence, if she gave evidence, was a different matter. The ability of the jury to see the defendant for the purposes of evaluating her evidence was crucial. The right to give evidence had to be seen in the context of a corresponding duty to submit that evidence to the scrutiny of the jury.

Having regard to the four questions identified earlier, his Honour found that there was (1) a proper basis in law for restricting the wearing of the niqaab in court, but only if the other conditions were present; (2) that aim involved in restricting the right to wear the niqaab on the limited basis identified, ie to allow the court to function fairly and effectively, was legitimate; (3) that some restriction of the right of a defendant to wear the niqaab during proceedings against her in the Crown Court was necessary in a democratic society; and (4) that the restriction was proportionate.

Directions

Adopting what he said was the least restrictive approach consistent with the necessity of enabling the court to conduct the proceedings fairly and effectively, Judge Murphy then set out the principles which should be applied when a defendant in the Crown Court asserted the right to wear the niqaab during the proceedings. He said, at paras 81-83:

“[76] From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. The principle of openness ensures that the courts and the trial process belong to all regardless of religion, gender or origin.

[77] In the courts themselves … the trial is a process of communication. To facilitate this process, the justice system uses rules and methods that try to assist parties that struggle with handicaps to overcome them in order to gain access to justice and take part effectively in a trial. Blind or deaf litigants, and parties with limited mobility, take part in judicial proceedings. Communication may sometimes be more difficult. But the efforts to overcome these obstacles and the rules crafted to address them tend to improve the quality of the communication process. Wearing a niqaab, on the other hand, does not facilitate acts of communication. Rather, it restricts them. It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question. The niqaab shields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors.

[78] A clear rule that niqaabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society. This rule should apply at all stages of the criminal trial, at the preliminary inquiry as well as at the trial itself. Indeed, evidentiary issues arise and evolve at the different stages of the criminal process, and they affect the conduct of the communication process taking place during the trial.”

Judge Murphy added that particular circumstances might arise in other cases which might lead a judge, on the facts of that case, to make a different order. Finally, everything he had said should be interpreted as applying equally to a male defendant, should an analogous situation arise.

The following directions were given:

(1) The defendant must comply with all directions given by the court to enable her to be properly identified at any stage of the proceedings.

(2) The defendant is free to wear the niqaab during trial, except while giving evidence.

(3) The defendant may not give evidence wearing the niqaab.

(4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.

(5) Photographs and filming are never permitted in court. But in this case, I also order that no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court.