THE BLOG
01/10/2013 08:03 BST | Updated 30/11/2013 05:12 GMT

Is Legislation the Answer to the Veil in Court Debate?

The question of appropriate court attire has always been topical for those who are involved in court proceedings, from witnesses, to lawyers, and of course the Judge and other court staff. I recall a lawyer being sent out of court by the Judge presiding over the family court in a courtroom in Surrey because her suit had a pink hue. The robes and wigs worn by barristers and Judges in the Crown Court are a source of amusement for most ordinary people but its roots are based in tradition rather than the law. Court dress has again hit the headlines but this time concerning the way Muslim women wish to dress in court, in accordance with their religion.

The judgment by HH Judge Murphy in the Crown Court at Blackfriars is sound, but I don't think we need to dive into legislating in this area. The judgment concerns the Defendant in criminal proceedings who wanted to wear the niqaab, which is the black veil which covers the entire face except for the eyes, in court. The Defendant's wish to wear the niqaab is because of her Islamic religious beliefs. According to the Defendant, her religious beliefs require her to wear the full hijab, which is a general term used to refer to female Islamic dress, including the niqaab. However, our court system has always asked for smart attire which does not interfere with the court and judicial process, so no hats or scarves covering the face. This is because all parties to the proceedings are entitled to see each other and the courtroom. Our modern courts are a construct of secular society and it is a legitimate expectation that the jury be able to see the Defendant and witnesses and vice versa.

Judge Thorpe's ruling is 86 paragraphs in length, however, in summary, the Judge permitted the Defendant to wear the niqaab during the proceedings but further ruled that whilst giving evidence in the dock, the Defendant had to show her face. The Defendant is currently considering the Judge's ruling with her counsel.

The reason given by the Judge for his decision is that the jury need to see the Defendant's face when she is giving evidence, because the jury are entitled to observe the facial expressions of the Defendant when she is in the dock. This is crucial because so much can be gleaned from a Defendant's facial expressions, in order to assess their guilt or innocence.

However, I have heard it said that allowing the Defendant to wear the full niqaab during the proceedings, will open the flood gates for the argument that we can all wear what we want in court. The decision by HH Judge Murphy relates to freedom of religion. The argument that now someone can walk into court wearing lots of clothes and a hat to cover themselves entirely and take part in the court proceedings, is exaggerated. A man covering his head and face with for example a winter scarf and hat would not be permitted to give evidence because he would not be doing it because his religion required it.

Judge Thorpe asked for higher judges to give guidance and for Parliament to legislate to guide the courts on how to deal with such freedom of religion cases, which could affect the democratic way we run our court proceedings. In the past, other Judges have also had to deal with such issues. For example, in the same court earlier this year, a Judge prevented a juror from sitting on the jury if they wore the full niqaab. In Australia, which follows our system of law, a Judge stopped a witness from wearing the Burqa in court, though the Burqa is the black cloth that covers the head and body but not the face. In that case the woman was a witness for the prosecution. In Spain, in March this year the Supreme Court overturned a ban on the Burqa in public places, imposed by the city of Lerida in 2010.

Judges are in the best position to decide whether a full face veil is appropriate in the circumstances. This should be done on a case by case basis. Clearly though, despite Judge Thorpe making the right decision, he did feel that it would have been helpful if he had some guidance before making his decision. We do need some guidance but this guidance should be quite broad, thereby allowing Judges a lot of leeway to decide the issue depending on the circumstances of their case.

Currently, we do not have any legislation governing court dress. Departments such as the CPS and HM Courts Service do offer guidance to witnesses on appropriate dress but there is no law governing this area. However if we legislate, we could be asking the law to do what we should be doing naturally as a multi-cultural community, talking to each other and learning about each other's cultures and beliefs. Judge Thorpe's decision is well-balanced and considered and he obviously spoke to all parties before he made it. He did all he could to respect the Defendant's religious beliefs but at the same time allowing for fair proceedings to take place against her in court, by allowing the jury to see her face when she gives evidence. There is no guarantee that legislation, which ties the judiciary's hands by being too strict, would have resulted in the same decision, and could actually lead to unfairness in the proceedings, for example at one end of the spectrum, by not allowing the jury to see the Defendant's face at all except the eyes, or at the other end of the spectrum, by subjecting the woman to being unveiled which would also affect her evidence if she felt she could not take part in the proceedings properly as a result.

I would like to see some guidance issues by the courts before any legislation.

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