The issue of whether Muslim women should be allowed to wear the veil, niqab or burqa when giving evidence in court is a matter of tiny importance yet, seemingly, of great significance. Tiny because there are so few women in Britain wearing full face coverings for religious reasons, of whom even tinier numbers are likely to give evidence in court.
But court scenarios are where the arguments about veiling (whether or not part of a “national debate”, as per Liberal Democrat minister Jeremy Browne) seem to play well for the veil banners since they can tap into Britain’s great traditions of justice and notions of the fair trial. What they don’t tap into is any actual evidence about how or under what circumstances veil wearing might harm a fair trial.
Judge Peter Murphy has considered this issue in the case of R v D(R) (though stressing his view should not be part of the wider debate) and concluded a defendant should give evidence unveiled. (His full decision is here pdf)
There is some evidence (see below) that doesn’t necessarily support the view that juries pick up important clues from watching the facial features of witnesses, but first the context.
From the legal perspective the issue is one of how far the human right to express one’s religion (European Convention on Human Rights Article 9(1)) can be qualified for the sake of justice and a fair trial. Would a ban of some sort be “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).
Such a qualification or partial derogation must, as Murphy notes, be “proportionate in the sense that there is a rational connection between the aim and the restriction; and that the means employed are no more than is necessary to achieve the aim”.
One assumes, though, that it must also be clear that the aim can be achieved by the means – that a limited ban on veiling in court (for the time the defendant is giving evidence) actually serves justice. There does not seem to be such evidence – at least, none was evinced in R v D(R).
The main argument is that jurors judge facial expressions to some extent to decide whether speakers are lying or telling the truth. So justice and a fair trial are best served by jurors seeing unveiled faces.
‘In my judgment, the adversarial trial demands full openness and communication … I am firmly convinced that the wearing of the niqaab necessarily hinders that openness and communication’ – Judge Peter Murphy
Murphy in this case interprets the counterbalancing qualification of Art 9(2) as “the rights and freedoms of persons who come before the court as complainants, witnesses and jurors”. He notes:
“If a fair trial is to take place, the jury (and for some limited purposes, the judge) must be able to assess the credibility of the witnesses – to judge how they react to being questioned, particularly, though by no means exclusively, during cross-examination. If the defendant gives evidence, this observation applies equally to her evidence. Moreover, juries very properly rely on their observation of the defendant, not only when she gives evidence (if she does so) but throughout the trial as all the evidence is given. Adversarial trials have always depended in part on these conditions being present in the courtroom.” (Para 30)
But to what extent do jurors judge evidence on the basis of visual clues given by the defendant’s face? It is asserted that they do, and it is suggested that they should do so, but is either of those positions correct?
There is a piece of research, rather long-in-the-tooth now, that suggests that we should be very wary about assuming visual clues play an important or accurate part in jurors’ assessment of guilt or innocence.
An examination of “the effects of nonverbal behavior on judgements of defendant believability” (Feldman, Chesley in Behavioral Sciences & the Law Vol 2 Issue 4; Fall 1984 p.451-461) found “the defendant’s nonverbal behavior had a significant effect upon subjects’ ratings of the defendant’s believability under conditions of a minor crime, but did not influence ratings of believability under the major crime condition”.
The experiment was a mock-up with students as jurors and actors either giving non-verbal clues of being deceptive or not giving such clues. There was also a third test – simply reading out a transcript of the evidence. The authors acknowledge the limitations of this experiment, not least because each of the tests lasted only a couple of minutes. The conclusion, though, was that deceptive non-verbal behaviour “plays an important role in the impression formed by observers of the veridicality of testimony”. The authors offer “attribution theory” as a possible explanation. This looks at the match between behaviours and the observer’s expectations. It does not suggest the observations helped lead to a correct judgment.
So the point about “major crimes” was that the student jurors expected greater nervousness on the part of the defendant when the stakes were high “regardless of whether the defendant was described as really guilty or not”. This meant “a defendant displaying a relatively high magnitude of the target behaviors [ie acting as if guilty] and accused of less serious crimes will be perceived as less believable than if he were accused of a more serious crime and displayed those same non-verbal behaviors”.
The implication seems to be that the “jurors” would discount such visual clues in the serious cases, putting them down to heightened nervousness of the “defendant” since there is an “extreme overlap between non-verbal behaviors typically attributed to deception and nervousness”. One might, in passing, suggest from this that the jurors would instead concentrate more closely on the evidence.
‘The defendant’s non-verbal behavior had a significant effect upon subjects’ ratings of the defendant’s believability under conditions of a minor crime, but did not influence ratings of believability under the major crime condition’ – Feldman, Chesley
Furthermore: “No significant differences were found among subjects forced-choice guilty/not guilty verdicts.” The main influence on judgment was the seriousness of the crime: the defendant was more likely to be seen as guilty the more serious the crime.
There are problems with this research, as the authors acknowledge: it was seeking to prove “attribution theory”, not whether obscured faces are important; that the “jurors” may have been trying to ape what they thought real jurors might think rather than coming to their own conclusions. One could add that the actors might not have been very good. Nevertheless it raises important issues, in particular about whether it is a “good thing” that juries should have visual clues among their armoury of evidential material, how much they rely on such clues, and whether they are interpreting those clues correctly (particularly if guilty behaviour looks pretty much like nervous behaviour).
Judge Murphy in giving his view on the issue said “juries very properly rely on their observation of the defendant”, but does he have evidence that they do so in any meaningful or useful way? Why is it “proper” that they do so unless we know (rather than assume) that they come to better judgments as a result? He offers no evidence but says (at para 70): “The jury has a duty to decide what evidence to accept, what evidence not to accept, and what weight to accord to any particular piece of evidence.”
To judge the necessity and proportionality of qualifying (ie to some extent denying) the right of religious expression one must surely have to judge the extent of the harm done if that right is not thus qualified. Is the harm of allowing evidence by veiled defendants sufficient to outweigh the good of allowing religious expression (including the good of encouraging veiled women to go to courts to redress wrongs done to them)?
There may be studies other than the one examined above but Murphy does not adduce any. He mentions various bits of case law in passing and in particular considers R v. NS, 2012 SCC 72,  3 S.C.R. 726 (Supreme Court of Canada). This was about an alleged assault victim (ie not a defendant as in R v D(R)) who wished to testify while wearing her niqaab. Murphy favours the view of two of the Canadian judges (LeBell and Rothstein JJ): “A clear rule that niqaabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.”
But these are merely assertions, obvious to anyone, perhaps, but without evidence. Perhaps having jurors blindfolded (since justice, as we know, is blind) would equally serve justice. We do not know.
As Murphy says, a proportionate qualification of Article 9(1) requires “there must be a rational connection between the objective and the restriction”. Has he established that connection – rationally or even scientifically – in this case? He certainly says (at para 79): “That there is a rational connection between the aim and the restriction seems clear. The restriction tends to maintain the quality and fairness of the trial process.”
But is it clear? He also says (at para 58): “In my judgment, the adversarial trial demands full openness and communication … I am firmly convinced that the wearing of the niqaab necessarily hinders that openness and communication.” He is firm in his view but does he have any evidence for his judgment?
This legal issue and certainly the debate are likely to run and run. One can only say that, on the matter of the veil in court, the jury is out.
Head of Legal points out (as I do in passing above) that a ban on the niqab would tend to deter niqab wearers seeking redress in court – hence damaging, not promoting, justice.
This piece by Ian Leslie considers 2006 research on whether people can spot liars – and suggests (tongue in cheek presumably) that all those giving evidence should be veiled so they can’t be seen by jurors.
Barrister Blogger strongly takes issue with Judge Murphy’s decision. He cites this paper by Professor Hazel Genn pdf warning the legal profession against assuming people can tell whether someone is lying.
Richard Moorhead here finds some research that suggests “that demeanor cues often reduce
accuracy in detecting deception, by distracting people into looking at cues they think are associated with lying and overlooking cues that actually are.”
The Equal Treatment Bench book Part 3: Belief Systems (guide to judges) says: “While there are a range of different possible approaches, depending on the circumstances of the particular case and the individual concerned, the interests of justice remain paramount. In essence, it is for the judge, in any set of circumstances, to consider what difference, if any, would be made to those interests by the niqab being worn. It may well be, that after consideration, there is no necessity to take any steps at all.”
Murphy did not quote this paragraph but did take issue with the Bench Book view that decisions about the veil were a matter of “judge-craft” ie judge’s discretion. He considered it must be a matter of law.
Main points of Murphy’s decision
• The question of identification must be dealt with in open court whenever it arises. (This was done in this case by a female officer checking the defendant’s identity.)
• In general, the defendant is free to wear the niqaab during trial.
• If the defendant gives evidence, she must remove the niqaab throughout her evidence (screened from public and press).
• There should be no examination regarding sincerity of belief in the veil unless there is evidence of deceit or disguise.
• Murphy only considers defendants, not witnesses or complainants. Other principles might apply to them.
• Choice to wear niqaab should be respected (even if there is no obligation under Islam).
Note: In Britain blind and visually impaired people can serve on juries but may be excluded where the jury has to consider a good deal of the evidence visually. Murphy deals with this inconsistency (at para 54) by quoting again his two preferred judges in the Canadian case:
“Blind or deaf litigants, and parties with limited mobility, take part in judicial proceedings. Communication may sometimes be more difficult. But the efforts to overcome these obstacles and the rules crafted to address them tend to improve the quality of the communication process. Wearing a niqaab, on the other hand, does not facilitate acts of communication. Rather, it restricts them. It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question. The niqaab shields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors.”
Murphy notes this Islamic website which gives a variety of exceptions allowable regarding the wearing of the veil (some quite surprising perhaps to western eyes) including giving testimony: “It is permissible for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is permissible for the qaadi (judge) to look at her in order to know who she is and to protect the rights of all concerned.”
Further points from Judge Murphy
Murphy says (at para 63-4): “In my view, it is necessary to the working of the Crown Court in a democratic society for the Court, not the defendant, to control the conduct of judicial proceedings. A defendant cannot, by claiming to adopt a particular religious practice, oblige the court to set aside its established procedure to accommodate that practice. That would be to privilege religious practice in a discriminatory way, and would adversely affect the administration of justice.
“Ultimately, it seems to me that Court must be entitled to place some restriction on art. 9 right if it reaches the point where the unrestrained exercise of that right interferes to an unacceptable degree with the Court’s ability to conduct a trial which is fair to all parties. I am unable to accept the proposition that the Court is powerless to protect its proceedings from unfairness merely because a defendant asserts an Art. 9 right.”
On the wider debate about Muslim veiling he rejects any notion that his view should be used in support of the veil-banners (at para 67):
“I also recognise the intrinsic merit which the niqaab has in the eyes of women who wear it. I reject the view, which has its adherents among the public and the press, that the niqaab is somehow incompatible with participation in public life in England and Wales; or is nothing more than a form of abuse, imposed under the guise of religion, on women by men. There may be individual cases where that is true. But 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.”
He does not consider it important that the accused should be unveiled throughout the trial for the jury to observe her reactions, saying (at para 68):
“While it remains true that juries scrutinise defendants throughout the proceedings, and take note of a defendant’s reaction to the evidence as it is given throughout the trial, I am not persuaded that this is of sufficient importance to require a restriction on the defendant’s right to wear the niqaab.”
Some case law considered
R v. Headteacher and Governors of Denbigh High School  UKHL 15 in which a school was allowed to require a Muslim girl to wear a particular uniform – but that was on the basis that there were other schools available where she would be free to wear clothing conforming to hijab.
Chaplin v. Royal Devon and Exeter Hospital NHS Foundation Trust ( ET 1702886/2009 a ban on a nurse wearing a Christian cross was upheld but on health and safety grounds.
Van Mechelen v. The Netherlands (1997) 25 EHRR 647. Police not visible to accused and lawyers when they gave evidence. Held to be breach of defendant’s human rights (ECHR Art 6: fair trial).
Eweida and Others v UK (2013) 57 EHRR 37. Includes case of BA worker told not to wear cross. No harm done to BA therefore breach of Art. 9.
London Borough of Islington v. Ladele  IRLR 154. Registrar refused to participate in registering civil partnerships for religious reason. Art. 9 claim not upheld.
McFarlane v. Relate Avon Ltd  UKEAT 0106 69 3011. Refusal to give relationship advice to gay couples. Religious claim not upheld.