Over the past month Judge Peter Murphy, a Circuit Judge in the Crown Court, has found himself faced with a difficult and extremely sensitive legal question: whether a defendant should be allowed to wear a niqab during court proceedings.
The issue has developed since the 23rd of August 2013 when a Muslim woman (who cannot be identified for legal reasons) who is charged with intimidating a witness, attempted to enter a plea in proceedings at Blackfriars Crown Court wearing a niqab.
Judge Murphy refused to allow the plea to be entered until the woman had shown her face to ensure that she was who she claimed to be. The woman argued that her religion prevented her from removing the veil in front of men.
Judge Murphy stated that:
“While I obviously respect the right to dress in any way she wishes, certainly while outside the court, the interests of justice are paramount. I can't, as a circuit judge, accept a plea from a person whose identity I am unable to ascertain.”
“It would be easy for someone on a later occasion to appear and claim to be the defendant. The court would have no way to check on that.”
When it was suggested by the woman’s defence barrister that she could remove her niqab in front of a female police officer in a separate room and then give evidence to the court regarding the identity of the woman, Judge Murphy replied:
“It seems to me to be quite fundamental that the court is sure who it is dealing with. Furthermore, this court, as long as I am sitting, has the highest respect for any religious tradition a person has.”
“In my courtroom also, this sometimes conflicts with the interests of a paramount need for the
administration of justice. In my courtroom, that's going to come first.”
“There is the principle of open justice and it can't be subject to the religion of the defendant whether the principle is observed or not.”
“I am not saying this because of the particular form of dress by this defendant, I apply that to any form of dress that had the same issues.”
Proceedings where adjourned, and on the 12th September 2013 the Judge changed his
mind, allowing identification evidence to be provided by a female police officer.
If identification were the only concern then perhaps an acceptable compromise had been reached, the use of a female police officer to provide evidence of identification, although time consuming, is, in my opinion, perfectly acceptable. However the ‘not guilty’ plea brought about the prospect of a trial and the issues regarding the wearing of a niqab whilst giving evidence were addressed by Judge Murphy in advance of the trial, which is due to start on the 4th November.
The Judge ruled that the defendant can wear the niqab during proceedings except when giving evidence, if she decides to do so. The main reason being a practical one; that it is necessary for the jury to see the facial expressions of the defendant when giving evidence so that they can make a better judgment as to the credibility of that evidence.
The Judge has ruled that should the defendant choose to give evidence then every effort will be made to make the experience as comfortable as possible by providing the option that she give evidence behind a screen so that only the Judge, jury, and legal counsel can see her, or by live video link. However one may argue that this is an empty gesture, as the issue is that the niqab must not be removed in front of men, whether a reduction in the number of men who can see her is of any benefit is certainly a debatable point.
This issue becomes more troublesome should she refuse to remove the niqab but still wish to give evidence in her defence. Should such a situation arise Judge Murphy has made it clear that he will not allow her evidence to be heard. Surely this then raises questions about whether or not the woman can receive a fair trial.
If she refuses and Judge Murphy gives a direction to the jury, as he has said he will, what would that direction be? If it is simply that the jury may draw any inferences they deem proper from her refusal to remove the niqab to give evidence (as is the case with a normal refusal to give evidence) then the jury are being invited to draw a possible adverse conclusion based solely on a religious belief and not on the evidence of the trial. Should this decision be entrusted to the jury that they may decide whether they believe any refusal is based solely on the strength of the woman’s belief or whether there is an ulterior motive? These are very difficult and sensitive questions.
Importantly Judge Murphy based his ruling on a stronger footing than a mere practicality. He began by affirming his acceptance of the sincerity of her belief, before grounding his ruling on the basis of the rule of law. Referring to the defendant as ‘D’ he said:
“Balancing the right of religious manifestation against the rights and freedoms of the public, the press and other interested parties such as the complainant in the proper administration of justice, the latter must prevail over D's right to manifest her religion or belief during these proceedings against her to the extent necessary in the interests of justice.”
“No tradition or practice, whether religious or otherwise, can claim to occupy such a privileged position that the rule of law, open justice and the adversarial trial process are sacrificed to accommodate it.”
“That is not a discrimination against religion, it is a matter of upholding the rule of law in a democratic society.”
In recognition of the rights of others involved in the trial process Judge Murphy stated:
“For several centuries the criminal courts in England and Wales have relied on the process of adversarial trial in open court. Today the courts rely on this process to uphold the rule of law, to provide a trial which is fair to all parties, and to allow the highest possible degree of openness and transparency.”
“A criminal trial in the Crown Court is, by definition, a serious matter. It has the potential to change lives - not only that of the defendant, but also that of victims, witnesses and even jurors.”
“The rights of all participants in the trial must be considered.”
Judge Murphy has put down an important marker, if he were to rule that religious freedom is more important than the rule of law, then in another circumstance, one in which the issue does not revolve around the religious dress of the defendant but a conflict between religious belief and the law itself, then the precedent established in this case would suggest that religious belief would hold primary importance. This is perhaps an extreme and unlikely occurrence but would be an awkward situation if it were to arise.
In any event, as Judge Murphy has already called for, it is important that this debate is ruled on either by a higher court (I find it hard to believe that this case will not end up before the Court of Appeal at some point in the near future) or Parliament through legislation. Judge Murphy was put in an incredibly difficult position, and emerged with a great deal of credit, having put together a considered and reasoned response to the problem. His decision is not without faults, particularly with regard to the issue of a fair trial discussed above, but we shall wait and see whether this is the beginning of an established practice in such cases, or whether those with greater authority overrule his decision.