The judgement by Judge Peter Murphy that a defendant cannot give evidence while wearing a niqaab covering her face was written with crystalline clarity. He acknowledged all the difficulties of trying to balance sincerely held religious convictions with the imperatives of justice. He gave due consideration to the Bench Book, the Judicial Studies Board publication that is meant to give practical guidance to judges, and rightly concluded – in very measured and judicial terms – that it offered only anodyne and useless pieties. He analysed any number of British, European and Commonwealth cases on the subject. Nevertheless his judgement was wrong and, unless overturned by the Court of Appeal it threatens to wreak grave injustice on devout Moslem women.
There is much about the wearing of a full facial niqaab that is off-putting to many civilised people. But the purpose of a Crown Court trial is not to free women from the tyranny of having to wear a veil, any more than it is to vindicate their right to do so. Its purpose is to allow a jury, as fairly as possible, to decide whether a person is guilty of an offence.
Does the wearing of a full facial veil make the trial any less fair? It is hard to see why. Trials are not decided, or at any rate should not be decided, on what a defendant looks like. They are decided by the prosecution producing, or failing to produce, sufficient evidence to prove guilt. The defendant’s appearance has nothing to do with it.
At the beginning of any trial all jurors swear to try the case with which they are entrusted “on the evidence.” In other cases jurors might take a look at a bald and unhappy looking middle-aged man wearing an anorak in the dock and think he looks like their mental image of a paedophile. If so then they should actively try to put such a prejudice out of their minds because it has nothing to do with the evidence. Similarly some people might be tempted to take against a woman wearing a veil, but they too would obviously be wrong to do so.
Judge Murphy suggests that it would “obviously” be wrong for a witness to give evidence against someone that they cannot see. But this “obvious wrong” happens all the time. When witnesses ask to give evidence behind screens or over video links nobody ever suggests that their evidence is devalued because they can’t see the defendant. And in fairness to Judge Murphy he rightly balanced this perceived unfairness with the right of a defendant to remain veiled if she chose. His ruling was that it was acceptable for her to remain veiled throughout the trial, except when she was in the witness box giving evidence.
And here we come to the nub of his decision. Wearing a full face veil will prevent the jury from seeing the defendant’s face when she gives evidence. Why is that so important? He quotes from a New Zealand case where a similar issue arose. In Police v. Razamjoo  D.C.R. 408, the judge commented:
“. . . there are types of situations . . . in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence. The look which says “I hoped not to be asked that question”, sometimes even a look of downright hatred at counsel by a witness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or body language. The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, a message touching credibility.”
As Judge Murphy points out, if a witness’s face is hidden then some of those signals that she is lying are concealed. The trial is thereby rendered unfair. It is a persuasive argument. But it is, with respect to the judge, hooey.
Many of us like to assume that we can tell whether someone is lying by looking for tell tale signs of shiftiness. Judges commonly even tell jurors that the way a witness gives evidence is as important as what the witness says. The received wisdom is that we can draw reliable conclusions from a witness’s “demeanour”.
But the fact of the matter is that we can’t; or at least our chances of doing so by looking at someone’s demeanour are only very slightly better than doing so by tossing a coin. Moreover some of the classic signs of shiftiness – such as averting ones gaze and fidgeting – are in fact nothing of the sort. They may indeed be signs of stress, but they are as likely to be caused by the anxiety that one’s truthful account is being disbelieved as by fear that one’s lies are being uncovered. If it is possible to generalise it is actually liars who tend to keep still and hold your gaze. What is more, those who are most confident that they are able to spot liars from their demeanour, like some police officers, psychiatrists and lawyers, are no better at it than anyone else, though their misplaced confidence makes them more likely to be persuasive. Strangely enough, buried within the website of the judiciary for England and Wales, and presumably written to warn judges off making the assumption upon which Judge Murphy’s ruling is based, is a paper by Professor Hazel Genn of University College London making precisely these points.
And although Judge Murphy alluded to the “discomfort” that a compulsorily unveiled woman is likely to feel, he gave precious little weight to it. Almost all defendants find giving evidence an extraordinarily stressful experience, which is one very good reason why it is particularly dangerous to try to draw conclusions from their facial expressions. But a woman who has worn a niqaab since adolesence, forced to take it off in public for the first time in order to go into the witness box, is likely to find the situation almost unbearable. To expect her to give a coherent account without giving out all sorts of strange facial signals and body language is completely unrealistic. She may modestly look down into the witness box, avoiding eye contact as far as possible. She may try to do the opposite and put on a weird display of excessive eye contact. She may, as defence counsel suggested in the instant case, try to cover her face with her hands. To then tell a jury that they should take account of those same strange face and body signals in assessing the truth of her evidence would be grotesquely unfair; but unless the jury are so instructed there is no point in insisting on the removal of the veil in the first place.
And if she refuses to remove the niqaab, and is thus refused permission to give evidence, what possible inference can the jury then draw? That she has no answer to the prosecution case? Or that she does not want to be partially stripped and humiliated in public?
There is a further point: Judge Murphy seemed to support the right of some prosecution witnesses to give evidence veiled, because of the public interest in not deterring devout Islamic women from giving evidence for the prosecution. But sauce for the goose should be sauce for the gander, or perhaps one should say for other geese. To be consistent courts would have to tell juries to be told that the evidence of veiled prosecution witnesses is in some way less to be trusted because their facial expressions are concealed, a plainly absurd direction. If prosecution witnesses are to be permitted to give evidence veiled that only emphasises the unfairness in not allowing the defendant to do so.
Some have suggested that if religious defendants are permitted to wear the niqaab in the witness box then other defendants will choose to appear swathed in balaclavas or stocking masks to conceal their reaction to cross-examination. If they do that too should be allowed, but it is a frivolous argument because it is hard to imagine a better way of creating an impression of guilt.
We have a proud public tradition in this country of tolerance to all religions, however bizarre their practices may seem to the majority. Where an adult woman wishes to express her faith by wearing a veil in public the state has no right to insist that she remove it without a very good reason. That was the case under our common law and more recent human rights legislation has served only to emphasise it.
Unfortunately, despite his obvious good intentions, great learning and humane attempt to make the right decision Judge Murphy has failed to demonstrate any such good reason. We must hope that his mistake is speedily rectified by the Court of Appeal.
*** *** ***
Since writing this I’ve come across two other bloggers who seem to share my views, albeit for slightly different reasons. Head of Legal is a consistently good blogger – very lucid but not afraid to get down to the legal nitty gritty – and explains here some of the practical reasons why the Murphy approach would be very hard to apply, as well as the main principled reason why he got it wrong.
And Francis Fitzgibbon here gives a very straightforward solution to what is (in numerical terms at least) a tiny problem. It has the great virtue of being easy to implement, easy to understand and utterly fair.
On the other hand Joshua Rozenburg would deny the defendant the right to wear the veil in the dock at all times. I think he is wrong but as usual he explains his position so well that I was almost convinced.