Muslim veil must be taken off when giving evidence, judge rules
A plea and case management hearing at Blackfriars Crown Court was the subject of unusual press attention this morning with District Judge Murphy addressing what he called “the elephant in the courtroom”, will the defendant be allowed to wear a niqab throughout the trial?
Over the hour and a half that Judge Murphy delivered his directions it looked as though it could go either way. He acknowledged that as well as being enshrined in common law, the right to freedom of religious belief and conscience has been protected in England and Wales by Article 9 of the European Convention on Human Rights (ECHR) since 1998.
He went on to clarify that Article 9 is split in two halves. He said that the first half, the right to freedom of religious belief, and the right to change that belief, is an absolute right and cannot be interfered with. The second half, the right to practice and manifest that belief, is subject to qualifications.
The second half of Article 9 stipulates that the freedom to manifest one’s religious beliefs may be limited by law where it interferes with the maintenance of public order and a democratic society. Each of these contingencies were expanded upon as the judge delivered his directions.
Fundamental to the prevention of crime and the maintenance of democratic society is the fair and effective administration of justice by the courts, Murphy ruled. He added that the courts of England and Wales have a “proud history” of defending rights of belief and conscience. However, he maintained that a balance must be struck between Article 9 rights to freedom of belief and the right to a fair trial set out in Article 6 of the ECHR.
Judge Murphy reminded the court that running in parallel with a defendant’s right to give evidence in their own trial is the duty to submit that evidence for the consideration of the jury. The jury, he pointed out, receive witness evidence not only aurally but also visually — taking cues from “changes in witnesses’ demeanor” in response to the questions put to them as well as the content of their statements.
In his final analysis the judge said that it is unfair for a juror to pass judgement on someone they cannot see. He also stated that the court must do all it can to ensure that individuals’ religious freedoms are not disproportionately restricted.
It was these governing principles that led Judge Murphy to rule that the defendant is entitled to wear her niqab throughout the trial. However, if she chooses to give evidence she must show her face to the judge, jurors and counsel whilst she does so. In that event, a screen will be provided to shield her face from members of public and the press. Additionally, the judge has forbidden court artists to sketch the defendant’s face.
In giving these directions, Judge Murphy accepted that it is impossible for the court to compel a defendant to do anything. Should the defendant refuse to show her face she will not be allowed to give evidence. However, in that eventuality the judge stressed that the jurors should be instructed not to take this as evidence of her guilt.
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