The debate about whether a woman who wears the niqab should be allowed to do so when giving evidence in court is one which polarises opinion. The niqab is the full face veil worn by a small number of Muslim women. Unlike many other countries, the United Kingdom has not sought to criminalise the wearing of full face veils and many consider it to be a legitimate expression of religious belief protected by the European Convention on Human Rights.
But there remains a tension between respecting the rights of a minority to manifest their religion and the needs of the courts to ensure trials are conducted fairly. New guidance issued to judges in reminds them of the need to consider carefully whether or not a witness should be asked to remove her veil when giving evidence. But does it strike the right balance?
The number of niqabis in England and Wales (the jurisdiction to which the guidance applies) is unknown, but they represent small proportion of the population – and cases where a judge is required to make a ruling involving the niqab are rare. When these cases do arise they are subject to enormous public scrutiny. In 2013, the judge Peter Murphy made headlines when he ruled that a defendant in a criminal trial could wear her niqab for the duration of her trial but if she wanted to give evidence in her defence she had to remove it. Many praised the judge’s pragmatic approach to the situation, but others were concerned that it represented a disproportionate intrusion into how a person could dress.
The most common objection to the wearing of the niqab is that it prevents the fact-finder seeing the witness’s face and detecting changes in demeanour that might be a clue that the witness is lying. Without this, it is argued, there is a risk that a jury might fail to realise that a witness is lying or has something to hide and reach the wrong decision. The harm caused by this would outweigh any harm caused by interfering with an individual’s right to manifest her religion.
My research indicates that the approach taken by judges all over the world is to assume that the veil will hamper the assessment of credibility and order its removal to ensure a fair trial. While this argument seems compelling, it is based on flawed assumptions. It has been established that people are generally very poor at using demeanour to assess credibility – indeed, recent research has established that assessments of credibility are more reliable when the witness has their face covered. And if there is no evidence to support to prove wearing the veil does impact upon the trial process, then there is no basis to order its removal.
Many would argue that there is little harm in requiring a witness to remove her veil and that as the veil is a sign of male subjugation and should not be protected. But this is too broad an approach to a complex issue. Many women choose to cover their face as a matter of choice to achieve a state of piety. The wearing of the niqab is a visible representation of this and being required to remove it represents an invasion with their deeply held beliefs.
Seen but not heard?
Unlike many other public spaces (such as schools), courts often offer individuals no control over how people engage with them. Someone who wishes to seek the protection of the law often has no choice but to proceed through the courts. If a victim of a criminal offence wants the protection of the police, they make their complaint knowing that ultimately they may be required to give evidence in court.
In this context, the worrying rise in hate crime towards Muslims since 2016 is relevant. Many of the victims of these attacks have been singled out because of their clothing. Women who wear the niqab have been particularly vulnerable to such attacks, with attackers often seeking to humiliate them by removing the niqab. For the victim of such an attack, the prospect of having to further compromise their beliefs by removing their veil in court can only add to their sense of persecution. This may discourage them from seeking help at all.
Despite the importance of this issue, there is no guidance in legislation or from the appeal courts. The latest edition of the Equal Treatment Bench Book reminds judges to only require removal of the veil where they consider it to be “essential” and reminds judges hearing non-criminal cases of the fallibility of evaluation of credibility from demeanour. But judges in criminal trials are told that not removing the veil might impair the court’s (so the jury’s) ability to evaluate reliability.
Although the language of the guidance provides some clarity, and stresses the need for sensitivity, it still suggests that juries benefit from seeing witness’s face when there is no basis for doing so and implies that where it is the defendant who wishes to wear the veil they should remove it to give evidence. There may be always be exceptional cases which justify the removal of the veil and judges should have the power to order this, but it is not enough to do so on the basis of what the jury may or may not think.
A better course of action would be to permit the wearing of the niqab where it has been requested and to direct the jury that it makes no difference to their assessment of the evidence. For a justice system to truly represent all of society it must ensure that the most marginalised groups are able to access it without having to compromise their beliefs unless it is absolutely necessary.