R v D: an Imperfect, yet Promising, Approach to the Treatment of the Niqaab in Court

Claire Overman 2nd October 2013

Debate has recently been ignited in the UK about whether Muslim veils can be accommodated in court, stemming from Judge Peter Murphy’s decision in R v D. In her post on this blog, Prof Carolyn Evans provides a thorough overview of the judgment. In summary, the defendant, a Muslim woman, had been charged with witness intimidation. The question to be answered was the extent to which she was permitted to wear the niqaab, the black veil which covers the entire face except the eyes, during her trial. The Judge held that a female defendant would be required to remove her niqaab when giving evidence in a criminal trial, in order for the jury to observe her reactions during cross-examination.

The defendant relied on Article 9(1) of the European Convention on Human Rights, which states that ‘everyone has the right…to manifest his religion or belief.’ However, it was noted that this right is not unlimited, but rather expressly subject to the restriction in Article 9(2): ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ In this case, the Judge noted that, weighing against the defendant’s right to manifest her religion was not only the other party’s own Convention right (the right to a fair trial under Article 6), but also the court’s interest in ensuring that the principles underlying the judicial process (the rule of law, the principle of open justice, and the principle of an adversarial trial) were respected. The Judge stated that allowing the defendant to impose her religious right on the court amounted to a deprivation of its ability to control its own procedure.

These countervailing interests (the other party’s right to a fair trial and the safeguarding of the judicial procedure) are in principle acceptable reasons for limiting the defendant’s right to wear her niqaab, particularly since the right is expressly subject to restrictions in Article 9(2). For instance, it was accepted without argument that she would be required to remove it, in a private room and before a female court officer, for identification purposes, to ensure that it was indeed the defendant standing trial. However, the necessity for these restrictions must be explored thoroughly by the court. For example, the Judge reasons that the removal of the defendant’s niqaab is required in order for there to be a fair trial, because if a jury and judge cannot see the defendant’s reaction to cross-examination, then a trial is unfair.

But there is no consideration of precisely why a trial is unfair if a defendant’s face cannot be seen. As pointed out in the ICLR blog, this reasoning would lead to the conclusion that a trial wouldn’t be fair if one of the jurors was blind. On this point, there is an interesting comparison with the employment context. In both, there has been a readiness to assume that certain issues are non-negotiable (that a defendant must be seen in order for a trial to be fair; that an employee must wear the required uniform and work the required hours on the required days). If the issue of the place of religious rights is approached with this mindset, then it is inevitable that such rights will be curtailed rather than accommodated. What is required is that courts question the necessity of, for instance, a Monday to Friday working pattern (preventing Muslims from fulfilling their obligations to attend prayers: see Ahmad v United Kingdom), or a particular dress code in court. If such debate is had, then the courts may be more ready to accommodate religious requirements, rather than too readily resort to the restriction in Article 9(2).

A further criticism can be made of the judgment. What the Judge did not consider in this case is that the defendant, as much as the alleged victim of the offence, also has the right to a fair trial under Article 6. He stated that ‘a rule prohibiting the wearing of the niqaab in court at any stage would cause a defendant some degree of discomfort,’ yet he didn’t consider that this discomfort may prejudice her own case. For example, placing her outside her comfort zone would be likely to place her at an evidentiary disadvantage, with the jury placing more reliance on her demeanour than on the content of her testimony. On the other hand, it could be countered that it is in fact the wearing of the niqaab which would prejudice a defendant’s trial, as a jury may be subconsciously more biased towards a defendant whose face they cannot see. At the very least, the Judge would’ve been well-advised to recommend a direction to the jury that they mustn’t take any display of discomfort by the defendant as indicative of her guilt.

One positive feature of the case must nevertheless be mentioned. The Judge took great care to dispel the idea that the removal of the niqaab was motivated by a desire to protect women from the patriarchal impositions of the Muslim faith. He stated clearly that ‘the niqaab is worn by choice by many spiritually-minded, thoughtful and intelligent women, who do not deserve to be demeaned by superficial and uninformed criticisms of their choice.’ The exclusion of such arguments, founded on misguided views not only of the religion itself but also of the supposed vulnerability of the women who subscribe to it, serves as a promising starting point for more reasoned consideration of the accommodation of religious rights within society.

Claire Overman is studying for the BPTC at Kaplan Law School, having completed the BCL at the University  of Oxford.  She is a frequent contributor to the OxHRH Blog.

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