The Elephant in the Courtroom

Yesterday I blogged about the widely reported case involving a female Muslim defendant who refused to remove her niqab, a full-face veil, during the preliminary stages of her trial on charges of witness intimidation.  Would the judge presiding over the case insist on the veil being removed?

As it turns out, Judge Murphy ruled yesterday that, if the defendant were to wear the veil whilst giving evidence, the ability of the jury to assess that evidence would be unreasonably compromised.  

Judge Murphy added it was irrelevant that the defendant had only started wearing the niqab in 2012, and that his decision would have been the same had she been wearing the veil for longer.  As a concession to the defendant’s concerns, the judge said he would allow a screen between her and the public gallery, which is set to be full of reporters when the trial begins in November, given the high profile of the case.  However the bottom line is that the trial judge, lawyers and jury must be able to see her face.

The court’s decision means that, should the woman refuse to remove the veil whilst giving evidence when her trial starts in November, she would be in contempt of court which may potentially lead to imprisonment.

The judge’s ruling means that if the woman, who started wearing a veil in May 2012, refuses to comply during her trial she could be jailed for contempt of court.  Many have welcomed the decision, but some say it does not go far enough, and that it should not be discretionary but a requirement that those involved in legal proceedings do not wear anything which obscures the face.

It remains to be seen whether the defendant and her legal team will appeal against the decision.  Arguably Judge Murphy stopped just short of inviting them to do so, calling the issue the ‘elephant in the room’ and saying that a definitive answer on this difficult issue must be made soon by a higher court or by parliament.

Is this a victory for common sense?  Today I am quoted in The Sun as ‘the lawyer’ in the opinion piece considering whether it is appropriate to wear a full facial veil in court.  It seems clear to me that a judge or jury’s assessment of a defendant or witness’s evidence ought not to be compromised by being unable to see that person’s face, and reactions to the evidence being given.  Having spent a lot of time in court, I have often noted how much time a judge will spend observing the parties during a trial or final hearing, assessing their non-verbal reactions just as much as what they say in evidence.  Arguably this would be impossible if a party was wearing a niqab or a burka.

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