A person may not give evidence with the face covered, a U.K. court has ruled, fuelling an already heated debate in a society characterised increasingly by diversity of religion and nationality.
Judge Peter Murphy delivered the landmark judgment on September 16 in the context of a 21-year-old Muslim woman (referred to only as D in the judgment) who appeared in his court as defendant in a case of witness intimidation.
Laying out sharply argued reasons for his decision, the judge noted that the question of whether a woman may give evidence wearing a niqaab had become “the elephant in the courtroom”, and that it called for a defining principle of law.
The judge drew a distinction between a niqaab-wearing woman standing for trial and giving evidence. Permitting D to stand for trial with her face covered, he stated that she must give evidence with her face clearly visible to the “judge, the jury, and counsel” if fairness of trial and justice is to be served.
Mr. Justice Murphy said D should be “given time to reflect and take advice if she wishes to do so”, to remove her niqaab. “If she refuses, the judge should not allow her to give evidence, and must give the jury a clear direction…about the defendant’s failure to give evidence.”
His argument, which drew from case laws of other countries and interpretations of Muslim law, allowed for exceptions and “accommodations”. For example, he said that a woman with a niqaab could appear as a witness, a juror, or an advocate; could wear it in civil or family courts “in which other considerations may come into play”; or in an airport where she could be taken to another room by a woman officer for a security check.
The argument for a judicial principle to be set only pertains to a trial court in an “adversarial trial” where women appear as defendants. Hiding the face in an adversarial trial in the Crown Court “may impede credibility assessment by the trier of fact, be it judge or jury”, Mr. Justice Murphy stated.
Arguing for a “just and proportionate balance between freedom of religion and trial fairness,” the judge said: “It is unfair to ask a juror to pass judgment on 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.”
Responding to the central argument put forward by D’s counsel, namely, that giving evidence is a fundamental right, he said that this right “must be seen in context…[it] involves a corresponding duty to submit that evidence to the scrutiny of the jury.”
The judge said that he rejected the view that the niqaab is “somehow incompatible with participation in public life in England and Wales; or is nothing more than a form of abuse, imposed under the guise of religion, on women by men. There may be individual cases where that is true. But 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, his ruling would support “the principle of openness of the trial process”, of justice that is “public and open to all in our democratic society”.
With 4.8 million Muslims in the U.K., half of them women (of whom a majority do not wear the veil), the judgment will doubtless provide the anchor of reasoned law in a debate fraught with disagreement, and in which the voices of Muslim women are rarely heard.