The Niqab in court ~ Ruling of HH Judge Peter Murphy

On 24th April 2007, the Judicial Studies Board issued guidance to the judiciary as to the wearing of the niqab in court proceedings and the guidance was eventually incorporated into the Equal Treatment Benchbook - see the 2018 Edition HERE.

The latest situation regarding a defendant claiming a right to wear the niqab in court arose in the Crown Court sitting at Blackfriars.  The Presiding Judge - His Honour Judge Murphy - heard legal argument and then issued his reasoned decision -Judgment of HH Judge Peter Murphy in relation to wearing of niqab by defendant during proceedings in Crown Court.

Judge Murphy's decision amounts
to requiring the defendant to reveal her face to the jury whilst giving her own evidence but, at other times, she may remain covered.  The decision has attracted an immense amount of comment.  Some see it as a sensible and pragmatic compromise whereas others disagree and feel that defendants should not be permitted to keep their faces covered in court.  The latter opinion places considerable emphasis on the view that the jury may pay attention to the facial reactions of the defendant as others give their evidence and use what they observe in some way when reaching their decision on the case.

Demeanour as a guide to reliability:

Much has been said and written about the demeanour of witnesses (and here I include defendants) in the artificial environment of the criminal court.  In a Canadian case - R v Lifchus 1997, Cory J said:

... there may be something about a person's demeanour in the witness box which will lead a juror to conclude that the witness is not credible. It may be that the juror is unable to point to the precise aspect of the witness's demeanour which was found to be suspicious, and as a result cannot articulate either to himself or others exactly why the witness should not be believed. A juror should not be made to feel that the overall, perhaps intangible, effect of a witness's demeanour cannot be taken into consideration in the assessment of credibility.

In an earlier Canadian case- Laurentide Motels v. Beauport (City), [1989] - L'Heureux-Dubé J. asked triers of fact to consider "the movements, glances, hesitations, trembling, blushing, surprise or bravado" of witnesses."

These views reflect the generally held opinion that jurors take into account matters such as HOW a witness gives evidence as well as WHAT they actually say and also how the defendant reacts to the evidence of others.  This point of view is in accordance with how we, in everyday life, react to our encounters with other people where, often, the HOW carries considerable influence.  And yet, our impressions can be wrong and, perhaps, are wrong more often than we usually care to admit.

There have been contrary views.  In his book The Judge (1979) the late Lord Devlin wrote:

“The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think this is overrated….I doubt my own ability…to discern from a witness’s demeanour, or the tone of his voice whether he is telling the truth……..For my part I rely on those considerations as little as I can help.  It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of the particular witness” 

Such comment from a judge of Devlin's undoubted calibre is important.  The much more recent views of the late Lord Bingham of Cornhill are also highly relevant and are set out in The Business of Judging: Selected Essays and Speeches (Oxford, 2000).   To attempt to summarise his powerfully reasoned views in a blogpost would scarcely even begin to do justice to them but it is clear that Bingham found himself among those who doubt reliance in the courtroom on the demeanour of witnesses though Bingham did not rule out taking it account.  His Lordship made three very powerful points:

1. The ability to tell a coherent, plausible and assured story is the hallmark of the confidence trickster down the ages.

2. The unnverving experience of a person giving evidence who has never done it before must not be overlooked.  It is rarely safe to draw inference from the fact that a witness seems nervous and ill at ease.

3.  Nationality (and one could add ethnic background) plays a part.  However little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when the witness belongs to some other nationality and is giving evidence either in English as his second or third language or through an interpreter.

Thus, in the courtroom situation, it is vital to consider carefully WHAT a witness says and how that evidence relates to the other evidence in the case.  It is from such analysis that good decisions result. 

Is there a problem?

The learned judge has sought to approach the problem with good sense and care and appears to have reached a reasonable compromise in the particular case.  However, I just wonder whether there may be a difficult problem.  He ruled:

'If the defendant gives evidence, she must remove the niqaab throughout her evidence. The Court may use its inherent powers to do what it can to alleviate any discomfort, for example by allowing the use of screens or allowing her to give evidence by live link. Again, the judge should, in the absence of the jury, advise the defendant of the possible consequences of refusing to remove the niqaab. She should be invited to remove the niqaab and given time to reflect and take advice if she wishes to do so. If she refuses, the judge should not allow her to give evidence, and must give the jury a clear direction in the terms suggested in the Bench Book, with appropriate modifications, about the defendant’s failure to give evidence.'
 
At common law, a defendant could choose to remain silent and it was not permissible to draw any inferences from this.  (Whether or not juries did so in practice is a moot point).  The law was modified by the Criminal Justice and Public Order Act 1994 section 35 which brought into English Law some legislation which had previously been applied in Northern Ireland in the context of the violence and terrorism of the time.  Section 35 permits the drawing of 'such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.'  However, the section is triggered by a refusal to give evidence. Would the section be triggered if the judge refuses to allow a defendant to give evidence because she insists that she will not remove her niqab as opposed to saying that she did not wish to give evidence?  Even if the answer to that is YES (which I doubt), just what inferences could properly be drawn?  I would submit that none could be properly drawn.

Furthermore, since the enactment of the Criminal Evidence Act 1898 which first permitted defendants to give evidence, it must also be seriously doubted whether the judge has the power to refuse to allow a defendant to give evidence when the defendant is willing to do so but only if she is permitted to wear a niqab.  A refusal would seem to amount to denying a fair trial.

The adversarial criminal trial system is a system of open justice which depends for the most part on lay decision-makers (jurors and magistrates).  It seems to be time for Parliament to consider the issues raised by those who wish to keep their faces covered in the courtroom and this question has to be considered in relation to all types of court and tribunal proceedings.  Judge Murphy was careful to confine his judgment to trial in the Crown Court and he also confined it to defendants.  His judgment does not bind other judges in the technical law of precedent sense but it will be persuasive given that it contains a lengthy look at the relevant law.

Other views:

UK Human Rights Blog - Adam Wagner The Niqaab issue is too important to be left to liberal instinct  and Alasdair Henderson Veils and ignorance: defendant not allowed to wear niqaab when giving evidence.

Joshua Rozenberg - The Guardian 17th September - Veils in court: this compromise ruling struck the wrong balance.

Halsbury Law Exchange - Simon Hetherington - Niqabs in court: Should full face veils be banned? 

Halsbury Law Exchange - Felicity Gerry - Niqaab court ruling: A classic exercise in reasonableness

Head of Legal blog - Carl Gardner - Even in a Niqab, the defendant must be heard ... where the learned author says that 'the judge’s reasoning is inadequate, mistaken and contradictory' ... The Niqab ruling: My detailed comments 

For a succinct view that this should be a matter of choice for the defendant see Nothing but the Sun - blog of Francis Fitzgibbon QC.

On this interesting subject, I also recommend a reading of the cogent but entertaining - Evidence of Demeanour: Some Instruction Found in the Early Works of Georges Simenon

References:

R. v. Lifchus [1997] 3 SCR 320

Laurentide Motels v. Beauport (City), [1989]  1 S.C.R. 705, at p. 799