Even in a niqab, the defendant must be heard

I’m no friend of the niqab. It’s the symbol of an oppressive ideology, and I look forward to its disappearance from the streets of Britain (which I think likely in my lifetime) and everywhere. I doubt a total ban’s a good idea here, but I support the right of employers and schools to prevent their employees from working fully veiled, I think it’s important that those involved in serving the public, like police officers and judges, do not wear the niqab, and I think it’s vital to resist, firmly, campaigns by religious extremists to normalise it. I’m against the niqab.

But His Honour Judge Peter Murphy’s ruling earlier this week, that a criminal defendant at Blackfriars Crown Court, “D”, may not give evidence wearing a niqab, is profoundly worrying. Unlike other commentators, like Adam Wagner and Joshua Rozenberg (who also disagrees with the ruling, but for different reasons) I don’t see it as well argued or persuasive. On the contrary I think it’s badly reasoned. And the conclusion the judge comes to (paragraph 86 of the judgment) that

The defendant may not give evidence wearing the niqaab

is mistaken in practical terms, wrong in liberal principle and wrong in law. The judge, by raising the prospect that an accused may be stopped from giving evidence in her defence, has conspicuously failed to respect the right to a fair hearing – an important concept whose full import, both theoretical and literal, this case might have been designed to illustrate.

In fairness to the judge, he’s done an impressive public service by facing what he calls at paragraph 12 of his ruling this “elephant in courtroom”, and by publishing his legal analysis.  But I’ve also said the ruling is badly reasoned, so I’d better start by giving one or two examples of what I mean. At paragraph 14 the judge says

I accept for the purposes of this judgment that D sincerely takes the view that, as a Muslim woman, she either is not permitted, or chooses not to uncover her face … I have been given no reason to doubt the sincerity of her belief.

But surely it makes a big difference whether, on the one hand, a defendant believes she is obliged to be veiled in public, or, on the other, she simply chooses to be. HHJ Murphy analyses the situation before him in terms of her right to manifest her religious belief, but any interference with this right is surely more severe (and harder to justify, legally) if it requires her to do something she believes forbidden, than if it simply requires her do something she herself agrees is permitted. The judge was wrong not to make this important distinction.

At paragraph 19, the judge seems to think it’s relevant that the niqab is not universally agreed to be required by Islam – although earlier, as I’ve said, he had thought it irrelevant whether the defendant herself believes it to be required. I find that odd. And at paragraph 20 he considers the position in Islamic law – which surely is irrelevant to the law of England and Wales.

At paragraph 30 the judge tells us that

It is essential to the proper working of an adversarial trial that all involved with the trial – judge, jury, witnesses, and defendant – be able to see and identify each other at all times during the proceedings

a principle which is is undermined by the fact that a witness may be “screened” from the view of the defendant in some cases. But at paragraph 59 the judge goes on to say that

In my view, it is unfair to ask a witness to give evidence against a defendant whom he cannot see. It is unfair to ask a juror to pass judgment on a person whom she cannot see. It is unfair to expect that juror to try to evaluate the evidence given by a person whom she cannot see, deprived of an essential tool for doing so: namely, being able to observe the demeanour of the witness; her reaction to being questioned; her reaction to other evidence as it is given … I would add that, although of lesser significance in the case of a judge, it is also unfair to require a judge to sentence a person he cannot see.

Yet he goes on to rule that seeing the defendant’s face at all times isn’t really essential after all, since he will permit her to wear the niqab while other witnesses give evidence. Neither they nor the jury, not the judge himself may see the expression on her face as they do so, in spite of this being “unfair”. At paragraph 68, without any further reasoning, he simply concludes that

I am not persuaded that this is of sufficient importance …

He goes on, too, to rule that he will sentence her while not seeing her face. At paragraph 67, finally, the judge gives his own views about the niqab, which seem to me irrelevant.

I hope this litany explains my view that the judge’s reasoning is inadequate, mistaken and contradictory. I hesitate to go on. But if you’re interested, there’s quite a bit more: you can read all my comments on the judgment here.

The fundamental problem, though, is that the judge approaches the question of law before him in terms only of the defendant’s right to manifest her religious beliefs, under the article 9 Convention right. At paragraph 11, for instance, introducing the question, he mentions article 9 – but not the defendant’s right to a fair trial, under article 6. Never, at any point in his ruling, does the judge properly and adequately address himself to that right.

I’ve already quoted some of the judge’s remarks about fairness to witnesses, to the jury and the the judge. Repeatedly the judge talks about the need to be fair “to all parties” but at no point does he squarely consider the fact that the defendant’s position is different from other court users with an interest in the trial: she, uniquely, has the legal right to a fair hearing in her case. Only at paragraph 69 does the judgment specifically mention her right to a fair trial and to give evidence:

The right to give evidence is a fundamental one, and it must be protected. It is an essential component of the defendant’s right to a fair trial, both at Common Law and under art. 6 of the Convention.

but having done so the judge immediately dismisses a defendant’s wish to be heard in a niqab as a potential “abuse”:

But Member States are free to give effect to that right within the framework of their respective legal systems. Article 6 does not prevent the Court from adopting a fair and proportionate procedural rule to prevent that right from being abused.

This is the furthest the ruling goes in attempting to square the judge’s directions with the right to a fair trial. Ultimately the judge’s legal analysis is as summarised at paragraph 72:

… the Court must balance the right of manifestation of religion against the interests of justice in securing a fair trial for all the participants and the strong public interest in the proper administration of criminal justice.

It’s clear from this that the judge has placed the public interest in fairness “to all parties” on one side of the scales, and concludes that it outweighs D’s religious rights on the other side. He has forgotten that the paramount legal right to fairness in this case, over and above the fairness due to anyone else involved, is the defendant’s – and one that tips the scales of justice firmly in her favour. It’s her right to be heard.

I said the ruling is a mistake in practice, because I wonder to what extent the judge has really considered the practical consequences of the approach he recommends. He has not ruled (nor could he) that the defendant must give evidence and show her face: she’ll decide whether she wishes to give evidence or not, and may decide to do so at the very last minute. So the question is, what will actually happen during the trial, when that time comes? I have no reason to think D will not comply with the judge’s direction. But what if, perhaps in another case, a defendant could square this with her conscience, and felt she could not obey?

One possibility is that she’d decide not to give evidence at all, rather than allow her face to be seen. That, though, would be an awful result, since it would effectively mean she was deprived of the right to bring evidence in her own defence, something we’ve seen as a fundamental right in English law since 1898 (when, as law students are amazed to discover, this was permitted for the first time). No criminal defendant should be placed in the position of feeling pressure to abandon this right because of her conscience.

Alternatively, she could decide to give evidence, but stubbornly refuse to remove her niqab – something the judge seems to anticipate in his ruling in D’s case, at paragraph 83 – bringing about a courtoom stand-off. What then? The judge says a defendant should be given “time to reflect” (how much time?) but that ultimately

If she refuses, the judge should not allow her to give evidence, and must give the jury a clear direction in the terms suggested in the Bench Book, with appropriate modifications, about the defendant’s failure to give evidence.

The “Bench Book”, at page 283, discusses directions to the jury about what inferences they may draw against the defendant under section 35(3) of the Criminal Justice and Public Order Act 1994, from her deciding not to give evidence. But it would be outrageous, surely, if any adverse inference were drawn in the circumstances of such a case. The judge would surely have to direct the jury that no adverse inference is fairly available because her silence was at least in part because of her religious principles.

By the way, that’s another reason why HHJ Murphy’s ruling is wrong: it allows a possible route for some female defendants, simply by putting on the veil, to evade the normal provisions permitting inferences to be drawn by jurors from their silence at trial.

But anyway, what does it mean to say a defendant should not be allowed to give evidence? Does it mean that the judge should not allow her to take the oath until she removes her niqab? Should he order her physical removal from the witness box if need be? Should he deal with her refusal to unveil as a contempt “in the face of the court”? Should he adjourn the case to deal with the contempt of court, and if so, how should be deal with it? Should he, ultimately, decide that the case should be concluded, and a verdict entered, with the defendant excluded from giving evidence?

In my view the final option – excluding the defendant from giving evidence in her own defence – would not only be radical, but wrong in law. It’s true that the Crown Court controls its own procedure and has power to punish contempt of court. But it does not have a general common law discretion to exclude relevant evidence from the defendant.

In Lobban v The Queen in 1995 the Privy Council approved a statement in a legal textbook, Keane’s Modern Law of Evidence (then in its 3rd edition) that

the discretion may only be exercised in relation to evidence tendered by the prosecution.

A similar statement is retained at page 46 of the current edition of what’s now Keane & McKeown. Indeed at page 46 of Murphy on Evidence, 13th edition, on which Peter Murphy (the very same Judge Murphy who made the ruling I’m discussing, as Joshua Rozenberg has pointed out) now works in a consultative capacity, the discretion to exclude evidence is discussed only in relation to examples where prosecution evidence is excluded. It’s clear that the common law discretion to exclude evidence only applies to evidence on which the prosecution relies.

So what would be the legal basis for excluding the defendant’s evidence? Statute provides no answer: section 78 of the Police and Criminal Evidence Act 1984 applies, similarly, only to evidence against the defendant.

I suppose someone might argue that, while not permitting the defendant to give oral evidence, the judge could allow her witness statement to be admitted into evidence under section 114(1)(c) or (d) of the Criminal Justice Act 2003, either because the prosecution agrees, or in in interests of justice. But that’s no answer to the fairness problem identified by the judge. If it’s not “fair to all parties” to allow the defendant’s evidence to be heard, and for her to be cross-examined, because her face will not be seen, it must be even less fair for her case to be put forward in written evidence, on which she can’t be cross-examined.

It’s rare for the European Court of Human Rights to interfere with a judge’s discretion, in a criminal trial, to include or exclude evidence.  National courts are given a wide discretion in deciding what witnesses should be called. But in the very case that’s often cited as supporting that point (for instance in Clayton and Tomlinson 2nd edition, para. 11.501), Vidal v Belgium, the Court did in fact hold that the right to a fair trial was breached where no reason was given for excluding defence witnesses from consideration. So the ECtHR can intervene where the exclusion of defence evidence strikes at the very essence of fair trial rights. And a case like CG v UK (in which there was no breach of article 6, although Judge Loucaides dissented) shows that the Court will intervene if the judge interferes with the defence case so as to render the trial unfair, viewed as a whole.

The domestic courts can and in my view should be less cautious about intervening under the Human Rights Act 1998 if a judge’s decision to exclude evidence seriously affects the defence case.

Article 6 of the European Convention on Human Rights sets out the right to a fair trial. Article 6(1) says

In the determination 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.

Note that the legal right is specifically to a fair hearing. And that the French text, similarly, says that

Toute personne a droit à ce que sa cause soit entendue équitablement …

Throughout his ruling, HHJ Murphy in my view exaggerates the difficulties of assessing the credibility of witnesses whose faces we can’t see. He says at paragraph 34 that a witness in a niqab

is effectively immunised against cross-examination

but surely this goes too far. If the judge were right, no minister would have the slightest concern about being interviewed on the radio by John Humphreys or Jim Naughtie. A defendant in a niqab can be seen – she communicates not just by facial expressions but by gestures and by her attitude. But more importantly the jury can hear her, and decide whether her account, together with her answers to questions, raises a reasonable doubt in their minds, or not. They’ll make of her what they will, but she should be allowed to take her chance.

A criminal defendant isn’t in the same position as a judge, a barrister, a police officer or a prosecution witness. She doesn’t choose to be charged, or what court or judge she’ll appear before, and she doesn’t choose whether or not to turn up. She’s at risk of losing her freedom, and is the only person in court who faces that risk. She’s a right to be tried fairly, and to speak in her own defence: this is a point on which traditional common law wisdom and modern human rights thinking coincide. So even if we’re against the niqab (and I am), this is a special situation to which special rules must apply. And they do.

Even in a niqab, the defendant must be heard.