THE BLOG
24/09/2013 06:39 BST | Updated 23/11/2013 05:12 GMT

Are There Genuine Fair Trial Concerns With Face Veils in Court?

The disproportionate amount of attention this has received, at the neglect of other far more pressing concerns about justice, health and education, indicates that many of those stoking the debate have ulterior motives.

The debate on the full face veil (niqab) resurfaces every so often. On this occasion, the trigger was a judge ruling that the defendant must remove her face veil when giving evidence before the jury. Some have taken the opportunity to call for a ban on the face veil in other settings such as hospitals and schools. The disproportionate amount of attention this has received, at the neglect of other far more pressing concerns about justice, health and education, indicates that many of those stoking the debate have ulterior motives.

The issue before Judge Peter Murphy, sitting at London's Blackfriars Crown Court, was whether the defendant, a Muslim woman, could wear a face veil during the trial. The judge ruled that her identity could be confirmed by a female police officer and she could wear the face veil throughout the trial, but she must remove it when giving evidence before the jury.

The judge made reference to three important principles to explain why the face veil should be removed before a jury:

1. The rule of law entails that the law is applied equally to everyone without exception. Whilst there can be no exceptions to the application of the law, the law itself may contain exceptions. There is a subtle but important difference. In this case, it was the law itself that could provide an exception by allowing the defendant to wear a face veil for religious reasons and there would be no ensuing unfair advantage or disadvantage to any individual.

2. Open justice requires court proceedings to be open to public and the press are able to report on it. This is not compromised by allowing a woman to wear the face veil. Although she might not be publicly shamed if she is able to hide her face, this is not an essential aspect of justice and, in any event, publicising her name and location could be sufficient for this purpose.

3. Adversarial trial system: The judge invoked fair trial concerns based on the supposed importance of assessing facial reactions during the trial, which he believes to be essential to determining the accuracy and credibility of evidence. If it is indeed essential then that raises questions about blind judges and jurors; it would be insulting to suggest that they are not able to judge because they cannot see the witness. There are also other occasions when witnesses may provide evidence from behind a screen or appear by live video link, and it is not suggested that this makes the evidence less reliable.

The judge took for granted that a jury does, and should, consider facial reactions. This is a more contentious proposition than might first appear. It may be more appropriate for jurors to be instructed to ignore facial expressions altogether and look at only the hard evidence. By taking facial expressions into account, the jury open themselves up to the greater likelihood of arriving at an erroneous verdict. There are ample psychological studies that attest to this. A person who frequently finds himself in the dock could be more deceptive in his reactions, whereas an innocent, nervous defendant may give the appearance of guilt. Similarly, a working class black youth might be less likely to be trusted by the jury than a middle class white man (there may have been an element of this in the recent Zimmerman trial in the US). Justice is then better served by ignoring superficial factors and the face veil could reduce prejudice in the courtroom.

The Equal Treatment Bench Book, which offers general guidance to judges on religious dress in the courtroom, was dismissed by Judge Murphy as being of little relevance. The Bench Book is sceptical of the need for a witness to remove the face veil and notes that the "very fact of appearing in a court or tribunal will be quite traumatic for many, and additional pressure may well have an adverse impact on the quality of evidence given."

Judge Murphy dedicated significant space in his judgment to the theological question of whether Islam requires women to wear the face veil and, if so, under what circumstances it can be removed. This enquiry is a red herring because the validity of the beliefs is immaterial. So long as the beliefs are genuinely held and attain a minimum level of "cogency, seriousness, cohesion and importance," they are protected under Article 9 of the European Convention on Human Rights. The court was only required to determine whether there were fair trial concerns and, if so, strike a balance between the right to freedom of religion and the right to a fair trial. The right to a fair trial should be given precedence, but any infringement on religious freedom must be proportionate and necessary. Whether a proper balance has been struck or extraneous matters were taken into consideration by Judge Murphy could form the basis of an appeal.

The judgment has received support from the government. There is extraordinary insincerity to the government's concern for fair trial and justice as this government has recently proposed legal reforms which raise far graver fair trial concerns. Earlier this year, the UK parliament passed the Justice and Security Act 2013 which introduced secret courts for mainstream civil cases. The "closed material procedure" allows evidence to be presented to a judge while preventing claimants from knowing the allegations against them, creating a Kafkaesque nightmare. The government has also proposed substantial cuts to legal aid which will leave many individuals with no legal representation, raising concern that some people will not be afforded a fair trial. Perhaps most worryingly, the Conservative Party have suggested that if they obtain a majority at the next general election they will repeal the Human Rights Act and consider withdrawing from the European Convention on Human Rights.

There is then rightly suspicion that the concern with face veils in court is not about fair trials and that there is something else at play here - after all, this is the government that recently paraded the "Go Home" vans across London. It is unfortunate that women's dress is used as a pretext to address wider political issues and to deflect attention away from more serious concerns about legal, education and health provision in the UK.