Further reflections on the niqab ruling

Posted on 30th Sep 2013 in Open Justice

The recent decision by a Crown Court judge requiring a Muslim woman defendant to remove her niqaab (face-covering veil) when giving evidence in her own defence, but permitting her to keep it on during the rest of the trial, has prompted a good deal of comment in the social media.

The reasons given by His Honour Judge Peter Murphy were detailed and careful, and while recognising that the point was a new one, not covered by any existing authority, and expressing the hope that it would be the subject of a more authoritative ruling by a higher court or Parliament, he nevertheless did not shrink from laying down a clear set of principles. Those principles were intended to apply in the present case, but were drafted with sufficient generality to enable them to be applied in other cases.

We published a digested summary of his judgment on wearing of niqaab in court.

This post is intended to consider the matter more generally and look at the reaction, positive and otherwise, to the decision. But first, what do we know about Judge Murphy himself?

The judge

As it happens, he has already been the subject of discussion on this blog because, in a parallel life, he is also a writer, not just of law books (such as Murphy on Evidence) but also novels. He has written a constitutional thriller, set in contemporary America, called Removal, and a novel about an English set of Chambers in the 1960s, called A Higher Duty, which we reviewed in our post Sex, lies and pink tape in the age of scandal: “A Higher Duty”.

But Peter Murphy brings a more international dimension to his literary and, now, judicial career. Having practised in England in the early part of his career, he moved to the United States, to practise law and take up a teaching post at South Texas College of Law (which plays a critical role in the plot of Removal).

Later on he became involved, through one of his former students, in acting as defence counsel at the Yugoslavian War Crimes Tribunal in The Hague, before returning to England in 2007 to take up a post as a circuit judge.

He now sits regularly in the Crown Court, which is how he came to find himself in Blackfriars presiding over the case of Regina v D (R) at a plea and case management hearing on 22 August 2013 and having to deal with a situation in which the defendant, shrouded from public view in both burq’a and niqaab, declined for religious reasons to reveal her face to the court for the purposes of identification.

The decision

As has been observed by Adam Wagner, in his piece “The Niqaab issue is too important to be left to liberal instinct” on the UK Human Rights blog, the judge examined the matter through the framework of human rights, specifically by balancing the right to freedom of religious expression, guaranteed by article 9 of the European Convention, against the right to a fair trial, guaranteed by article 6. Wagner praised Judge Murphy for a ruling which was “ a model of how a complex human rights issue should be approached; reasonably and sensitively”.

Wagner concludes:

“Whatever your own gut reaction to the niqaab, I suggest that the human rights approach is the best we have available to resolving this complex issue. It allows for the needs of different individuals and groups to be fed into a balancing framework, evolved not from gut instinct or populism but from past experience of dealing with similar issues. The decisions this  generates may end up pleasing nobody, but that can also be seen as a success rather than a failure where interests do not, and cannot, entirely coincide.

And that is the real liberal approach, not blanket bans or screeching condemnations. What, after all, is human rights law if not a distillation of liberal instincts into clear principles, fleshed out by decades of specific application through case law?”

Before applying the human rights framework, however, the judge did take the trouble to hear arguments from both sides and an expert witness’s report from Professor Susan Edwards, on “Gender and Islamic Dress”, prepared on the defendant’s behalf.

He proceeded on the assumption that the defendant was sincere in her view that, as a Muslim woman, she was not permitted to uncover her face in the presence of men who were not part of her family. To require the court to assess the sincerity of someone’s beliefs in such a case was problematic, and could lead to a sort of inquisition, the result of which would still ultimately be subjective. Rather, the same principles should apply regardless of the individual concerned. However, he allowed for “exceptional cases” in which there might be evidence that the niqaab was being abused as a disguise or for some other improper purpose. In other words, once the person had claimed the right to wear a niqaab, the burden shifted to the person challenging their right to do so to establish some evidential basis for stopping her.

Relevance of Muslim law and belief

Having regard to Professor Edwards’ evidence, the judge mentioned some of the expressions of opinion cited on Muslim law, noting that experts were divided, but declined to make any findings. He seems to have mentioned the matter only to say that it wasn’t going to influence his decision-making process, and perhaps out of deference to the Professor Edwards. It was also an opportunity for him to drop this hint for the benefit of the defendant:

“I mention it because D may well be aware of information readily available on the internet which might inform her decision to insist, or not insist, on wearing the niqaab in this court, or provide a basis for her to seek advice about her position form her Imam or other trusted source.”

In other words: “It’s up to you, but you might want to rethink your position here.”

Having explained the background, the judge then proceeded to set out the basic governing principles and to examine the correct approach to the defendant’s claim under article 9 in the light of those principles, and to form a conclusion by reference to the rights (including but not confined to those of the defendant) engaged by criminal proceedings.

The defendant’s human rights

In his detailed commentary on the judgment on his Head of Legal blog, Carl Gardner asked:  “I wonder if he’s going to mention D’s right to a fair hearing, as well as her right to manifest her religion?” After making a number of similar observations, he concluded: “HHJ Murphy seems to be ignoring her right to a fair trial”.

The implication was perhaps that the defendant’s right under article 9 was being balanced, not against her own right to a fair trial under article 6, but against everyone’s else: the victim, witnesses, jurors, the judge and, ultimately, the watchful public. But actually the defendant’s right to a fair trial was in play, it simply happened to conflict with her right to manifest (if she insisted on doing so) her religion. The conflict is not just with the court, or the world; it is within her. I would therefore disagree with Gardner’s conclusion that “Here, D’s religious freedom and fair trial rights coincide”.

This conflict was made very clear by a brief, compelling, shortcut offered by Francis Fitzgibbon QC in his blog Nothing Like the Sun, under the somewhat flippant title of “Oy Veil”:

“In the Blackfriars Crown Court case, the Judge could have cut through the human rights stalemate. He could have said something like this to the defendant:

‘As long as some one can identify you as the person who has been charged, it is your choice if you come into Court with your face covered. It will not affect the way that I treat you, which will be exactly the same as any defendant. However, you should perhaps reflect on what the jury will think. If they cannot see your face, they will not see how you are reacting when the prosecution evidence is being given, and if you choose to give evidence they will not see the manner in which you are answering questions. They may well want to take account of body language and facial expressions, as people do both in and outside Court.  I will direct them that they must assess your evidence in the same fair manner as they would any witness, but you may find that because they cannot see you, they will give your evidence less weight. These are things that may harm your defence. If that is a risk you are prepared to take, it is entirely a matter for you.’

So the defendant  is treated as a mature person capable of identifying her best interests and she can make an informed choice. If the veil is so important to her that she’s prepared to risk  the jury taking against her for it, on her head be it.”

Bin the ban

Other commentators supported the idea that there should be no ban, even (as the judge ruled) for the giving of evidence by the defendant herself. Carl Gardner, after attacking the judge’s reasoning, as well as his conclusions, in another post entitled “Even in a niqab, the defendant must be heard” concluded that if the jury could hear her answers, they could form a view of her veracity as a witness in much the same way as we can when we listen to evasive politicians interviewed on the Today programme on Radio 4. “They’ll make of her what they will, but she should be allowed to take her chance.” There was no justification, in his view, for preventing her giving evidence if she refused to take off her niqaab.

Simon Hetherington on Halsbury’s Law Exchange took a much less trenchant approach. He appeared to support the judge’s reasoning, but remained uncomfortable with the result:

“Absolute and clear rulings are always desirable; and a clear ruling that the veil must be removed to give evidence would, I think, serve the interests of justice in all but one important respect – namely that a person – be she witness or defendant – might thereby be deprived of something critical to her ability to function comfortably in society. To someone accustomed to wearing the veil, removing it could instantly cause distress, and that in turn would put her at a real disadvantage.

And there is something bigger in play, too: the tension between freedom of religion and any other form of human and social right. There seems to be a measure of assumption that if religious freedom comes up against secular justice, the latter must prevail. Is that always just? And another concern follows from that: that the ruling given in this, as I said, narrow question – especially if it is to order the removal of the veil – will have an impact far beyond the courtroom.”

In a more general piece on “Burqa Bans”, the author behind The Blog That Peter Wrote, while attacking the idea of burka (and niqab) bans in general – and in particular the idea that a witness must not only give evidence but be seen to give evidence (be seen to be believed, in effect) – was  after all supportive of the compromise solution in this case:

“Taking courts first, the view is that a judge or jury cannot make a proper assessment if they can’t see the full range of facial movements during testimony.  On that basis, blind jurors should instantly be excluded.  They are not in this country, as David Blunkett’s example of jury service shows.  It is in fact more than a little offensive to the blind to suggest they are not capable of serving in this way.  The argument presupposes that jury members are watching every facial movement of a witness in some kind of sixth sense or intuitive way to divine the truth, rather than the dull tedium of going through all the evidence, written and spoken to make an assessment.

All this said, the recent ruling by Judge Peter Murphy reached a practical, common-sense compromise.  A veil wearing defendant was allowed to enter a plea in court whilst wearing her burka, having previously been identified by a female officer, who swore it was the same person on oath.  When she stands trial, she will do so behind a screen, but will have to remove her veil in front of the judge and jury.  This is an outcome that should satisfy those who fear the tiny number of Burka women in this country will be able to flee justice, whilst at least succeeding in part to accommodate her religious wishes.”

Support for the ban

Support for the judge’s approach was pretty widespread. Felicity Gerry on the Halsbury’s Law Exchange blog called her appraisal of it “A Classic Exercise in Reasonableness”, which was “essentially basic common sense. It was a firm, but fair judgment about a fair trial for the prosecution, the defence, the public and the jury…”

But some thought he had not gone far enough. Joshua Rozenberg, in the Guardian, praised the judge and dissed the judgment. “Murphy correctly identified the balance he had to strike. But he then struck it in the wrong place.” In his view, the defendant should have been required to remove her niqaab throughout the trial, not just when giving evidence. “Crucially,” Rozenberg pointed out, “the jurors would not be able to assess her demeanour while her alleged victim gave evidence.”

Open justice and freedom of expression

Rozenberg’s piece makes another, generally overlooked, point. Among the terms of the order was a ruling preventing an artist creating (from memory, as is current practice), and the press publishing, any impression of the defendant’s face, if and when uncovered in court. As Rozenberg points out:

“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.”

In fact it is not uncommon for courts to apply reporting restrictions without first canvassing the opinions of the Fourth Estate. What about the fact that “D” was not named in the judgment? This is not explained in the judgment itself, but was presumably mentioned at the first pre-trial hearing.

Perhaps a further point could be made, however, which is to emphasize the public interest in open, accessible justice. Justice must not only be done, the saying goes, it must be seen to be done. This idea runs throughout the judgment: jurors, witnesses, victim, counsel and the public should all, ideally, have sight of one another in the open justice process.

This is a point David Allen Green took up in his more general piece for the Financial Times, entitled “Blind justice and open justice: the transparency of the courts in England and Wales”. Among a number of more general points about the accessibility of court documents and so on, he discussed the specific issue of “veiled defendants”.

“Recently, at Blackfriars Crown Court, a man in a horsehair wig had to determine what a defendant could choose to wear on her head – or more correctly, over her face – during her trial before a jury on a serious criminal matter.”

In his view, “the importance of [jurors] being able to watch a defendant give evidence can perhaps be overstated”. He mentioned blind judges and blind jurors. While accepting that “it can be argued that there should never be an avoidable barrier to [jurors] being able to form an opinion of a defendant’s reliability…”, he appears to agree with Carl Gardner who  “correctly emphasises that the ultimate purpose of a criminal trial is justice, not (forced) transparency.”

David Allen Green goes on:

“similar points can be made about the strict contempt of court laws which seem to prevent potential jurors being unduly influenced by any adverse news coverage. It is in the supposed interests of justice that blindfolds are effectively placed on all potential jurors before the enter the courtroom, even if this means muzzles are placed on all news outlets.”

That, perhaps, answers Rozenberg’s article 10 point better than I can.

Wider (un)coverage

Unsurprisingly, a number of non-legal commentators waded into the debate, some of them veiled in their own prejudices. The judgment came shortly after a very public u-turn by Birmingham Metropolitan College, which had previously imposed a ban on facial coverings, including veils worn for religious reasons, after protests were orchestrated by some students, and which now decided to let individuals wear items of clothing “to reflect their cultural values”. The imprecision of this phrase (a typical enough piece of anguished liberal wooliness) will no doubt come back to haunt them.

Shortly afterwards, a Home Office minister, Jeremy Browne, called for a national debate on whether girls and young women should be protected by the state from having the veil imposed on them. The way that was put (or at any rate reported) rather begs the question: perhaps some of the commentators should consult Professor Edwards or read her paper (assuming, in a piece of courtroom openness of the sort approved by David Allen Green, it were to be published) or embark on this free course on “Muslims in Britain” organised by FutureLearn, a subsidiary of the Open University, in conjunction with, inter alia, the British Library.

And finally…

as a reward for reading this far, a less reverent view of the subject, follow this link to the inimitable Queen’s Counsel cartoon, which this week celebrates its 20th anniversary.