Why Ken Clarke is wrong on the veil in court

Picture the scene. The UK Prime Minister, David Cameron, has called Ken Clarke in on Sunday morning for an important and urgent job. He is without portfolio but that doesn’t mean is without his uses.

“What ho, prime minister! Not chillaxing today?” asks the jovial former Lord Chancellor.

“No, Ken. There’s important business afoot. We need a little air cover. We want you to dominate the news headlines.”

“I’m the man for the job,” beams Ken, he of the “some rapes are more serious than others” claim.

“Great,” says Cameron. “Now, go out and say something about veils. Any old b– – – will do.”

Ken duly complies. It is not certain why he needs to do this important job. It may be a precursor to justice secretary Chris Grayling coming over all “tough on veils” by announcing a ban on them for witnesses giving evidence in court (though a ban is not really within his immediate powers); or it may be to deflect attention from the embarrassing U-turn on migrant visa bonds.

Whatever it is, Ken rises to the challenge. How did he approach this sensitive subject? By blundering in with his size 10 Hush Puppies. In passing he denigrated the attitude of women who wear veils as archaic and strange: “It’s a most peculiar costume for people to adopt in the 21st century.”

He insulted the garment itself: “It’s almost impossible to have a proper trial if one of the persons [is] in a kind of bag.”

And all this was wrapped up in an insistence that his comments “had no trace of Islamophobia”.

The legal position

What he failed to do was apply his incisive legal mind to the actual legal issues. If he had, he might have come to the conclusion that there is no legal (and hence no moral) reason for a ban on the veil for witnesses in court.

1) The legal logic starts, not with the idea that the veil is “a most peculiar costume”, but from the position that Britain is obliged to protect religious freedom. Article 9(1) of the European Convention on Human Rights  (by which the Government and the courts are bound) says:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

2) A court must allow that freedom, but there can be exceptions for some purpose “prescribed by law and … necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”. (Art 9(2))

3) Having a “proper trial” might be just such a purpose – but only if it can be shown that the conduct you want to ban is of the sort that would prevent a proper trial. As Judge Peter Murphy said in his recent decision on this very matter, a ban must be “proportionate in the sense that there is a rational connection between the aim and the restriction”.

4) This means it must be shown that seeing faces is essential to a jury ascertaining whether the witness is telling the truth or lying. This must not be a gut reaction nor some notion that unveiling is embedded in our Common Law. The fact that Kenneth Clarke “can’t see how” a judge and jury can appraise evidence without seeing the giver of the evidence is not enough.

5) No “rational connection” has yet been shown between a ban and the aim of a “proper trial” (presumably one in which truth and justice prevail). Indeed much research evidence shows that faces are misleading; people don’t always, or even usually, correctly judge truth or lies in people’s faces or demeanour. One study is considered in detail here.

6) Since there is no “rational connection”, any ban would be disproportionate in ECHR terms – remembering that we start from the position of protecting religious rights unless there are good reasons not to.

This seems to be the sticking point of those who want to ban the veil. They do not like the practice of veiling. They do not have to be Islamophobic to dislike it. They may be liberals, like Clarke, who believes, apart from court witnesses people should be able to wear “what the devil they like” (a further inelegant phrase when talking about religious dress). People justify bans because veiling is oppressive to women as well as archaic. They consider courts should uphold British values.

None of these arguments is relevant to the legal position – that religious freedom is to be protected unless there is some overriding reason to have an exception to that rule.

Judge Murphy, who favoured a ban for a defendant, sought to frame his decision in terms of ECHR rights and proportionality but he insisted there was a “rational connection” between a ban and a fair trial. As with Clarke, however, it was an assertion of the obvious rather than something that needed to be made out with facts or evidence. Clarke said: “I don’t see how on earth a judge and a jury can really appraise evidence when you’re facing someone who is cloaked and is completely invisible to you.” But “I don’t see how on earth” is not the same as “I know and have the evidence to prove it”.

To conclude the argument, we have weighed religious freedom at a high value (because the law requires us to do so as a starting point) and concluded there is no gain in unveiling (because the evidence shows there is no gain). A ban is not “necessary in a democratic society &c”. Even a small ban would be disproportionate since there is no known offsetting gain to justice or a fair trial.

It is worth adding that a ban on veils for witnesses would actually detract from justice (as Head of Legal notes) since it is likely to deter Muslim women who wear veils from seeking justice in British courts. Judge Murphy makes the point in his judgment regarding witnesses (as opposed to defendants): “The public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the fear that the court process may compromise their religious beliefs and practices.” (Para 8)

This, presumably, would be far from the intention of those who worry about veiled women and want them to engage with the rights that British society offers. Additionally, though, it is likely to conflict with Britain’s duty to extend the right to a fair hearing to all with legal grievances. It’s in Article 6(1) of the European Convention:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Those who do not think the ECHR is right to protect religious freedom – especially the religious freedoms of those people who come to Britain and “don’t accept our values”, will not find these arguments compelling. They will agree with Clarke that veiling is “peculiar” and not to be protected. They will think that if such women want access to British justice they should abide by British rules. These are not legal positions. And the legal position must surely count for something amid all this sound and fury on banning the veil.

Twitter: alrich0660

The Lord Chief Justice has now launched a public consultation on whether defendants should be banned from wearing the veil: Evening Standard

Note: A piece of research, Judge Murphy’s decision and the legal issues are considered at more length here: Should the veil be banned in court contains links to other research backing the view that facial evidence does not lead to true assessment plus bullet points and quotes from the judgment.

Further note: This post is based on the logic of the law and on the implications of the European Convention. The current actual state of the law is as Murphy ruled for criminal courts  – that a defendant should be unveiled and screened from the public. However, he did not consider whether other witnessess should be banned from wearing the veil and acknowledged even banning veils for defendants should be considered on a case by case basis:

“I recognise that particular circumstances may arise in other cases which may lead a judge, having considered the matters which must be considered, to make a different order.

“I cannot, and do not attempt to enumerate such situations, but they may include cases in which the evidence is effectively agreed; or where the defendant’s evidence would be purely formal, or would not be challenged. This must be a matter for the judge to decide on the facts of each case.” (Para 84)

He also gave several good reasons why a ban might not be applicable in a civil court including the Family Court. A ban of any sort may, of course, be appealed to a higher court in any case in future.

Further further note: The European Court of Human Rights has now ruled on the French ban on veils: ECHR ruling_[116KB] pdf. It suggests the ban is legal because not couched in terms of religion ie it is a ban of garments covering the face. It is more than likely the court would take the same view on the banning of veils in court unless it were established there is no practical purpose to the court ban.