Baroness Hale, Deputy President of the Supreme Court, has said that women giving evidence in court should do so without a face veil. She said she had come to this view when ordering a mother in a family court case to remove her veil in order to assess whether the witness was lying and now took the view that the same should happen in criminal cases. Sensibly she has suggested that judges should be able to insist that women reveal their faces to juries. Much has been written about the wearing of a face veil generally from a religious and feminist perspective by those both for and against the practice. However, almost nothing has been said about the defendant's right to a fair trial. That right should not easily be waived.
For many the face veil is a symbol of the oppression of women, for others it is a question of religious observance. In court however the question is fairly straight forward: How to achieve a fair trial for both the prosecution and the defence? Judges have to enable witnesses to give their best evidence and juries need to be able to assess those witnesses properly, not from behind fabric. If the face veil wearer is a witness, it is not fair to the defendant for her to hide. If she is a defendant, her account of events must be seen for a verdict to be safe. There are very rare cases where witnesses receive anonymity if their lives are endangered but this should not be extended to routine cases. The Lord Chief Justice has called for a consultation on the issue and the UK Supreme Court is awaiting the outcome of the decision of the European Court of Human Rights on the French face veil ban. I will be discussing these issues with other experts at a conference at Nottingham Trent University Human Rights, Law and Religion: Perspectives on the Islamic Face Veil on the 30th of March 2015.
In criminal cases, the most recent decision comes from a Crown Court decision on the 16 September 2013 when His Honour Judge Peter Murphy gave judgment at Blackfriars Crown Court in The Queen v D(R) on whether the defendant could a niqaab throughout the trial. He decided that she could remain covered in the dock but the jury should have the opportunity to see the defendant's face uncovered when she gave evidence. At an early hearing the defendant appeared wearing a face covering that she declined to remove saying that she could not reveal her face in the presence of men for religious reasons. The judge took time to consider the matter. He received skeleton arguments from both parties and heard oral argument on an adjourned date. He also received an expert report from Professor Susan Edwards, an expert witness on Gender and Islamic Dress, which was prepared on behalf of the defendant. It is at times like this we can see the real value of professional advocates and a skilled judiciary.
At a hearing on 12 September 2013, the defendant was identified by means of evidence from a female police officer who was able to say that she was certain that the person before the court was in fact the defendant, not an imposter. On the face veil issue, His Honour Judge Murphy, quite rightly, recognised that the human rights issues involved were not merely a question of "judge-craft" but important questions of law to be balanced during the trial process. He said: "Given the ever-increasing diversity of society in England and Wales, this is a question which may be expected to arise more and more frequently, and to which an answer must be provided".
At all times, the decision approached the issue on the basis that the wearing of a face covering in these circumstances was a genuine and sincerely held belief by the defendant but the governing basic principles were freedom of conscience, freedom of religion, and freedom of religious expression and an obligation to respect court.
He gave primacy to the rule of law and the principle of open justice and that an adversarial system: "If a fair trial is 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. If the defendant gives evidence, this observation applies equally to her evidence. Moreover, juries properly rely on their observation of the defendant, not only when she gives evidence (if she does so) but throughout the trial as all the evidence is given. Adversarial trials have always depended in part on these conditions being present in the courtroom." It follows that the correct approach is to balance the individual freedoms with the wider freedom which comes from open justice. The judge concluded that "the principle of openness ensures that the courts and the trial process belong to all regardless of religion, gender or origin."
Essentially, it comes to this - as Baroness Hale has recognised, the conduct of a trial must be fair to all parties. Sometimes the most complex of legal issues come down to what is basic common sense.