Multicultural Britain. This is often a phrase that sparks debates on topics such as racism, religion, and cultural differences. Rarely are we presented with an opportunity to examine ‘multicultural Britain’ from the point of view of practicality in the justice system. Thus, Judge Murphy’s decision that a Muslim female defendant can wear a niqab during her trial at Blackfriar’s Crown Court in November sparks new debate. This article addresses the beginning of a conflict between religious expression and the rule of law. I will be exploring the effect of the judgment on face covering in court proceedings, an issue desperately in need of political intervention and guidance.
What is the niqab?
For the sake of clarity, it is necessary to outline that Judge Murphy has only been concerned with the covering of the Defendant’s face. Thus, ‘niqab’ in these proceedings is deemed the term for the black veil which covers the entire face except for the eyes.
Rarely are we presented with an opportunity to examine ‘multicultural Britain’ from the point of view of practicality in the justice system.
The context in which the decision was made
The 22-year-old defendant, Rebekah Dawson, is accused of witness intimidation. She argues that her right to express her religion through her clothing would be compromised if a ruling ordered her to remove the niqab during proceedings. This, she contends, includes whilst she is giving evidence. The judgment will allow her to wear the niqab throughout the trial, except when she is testifying.
Part 3 of the Criminal Procedure Rules requires the court to ‘actively manage’ a case. The purpose of ruling on whether the defendant was permitted to wear the niqab is ‘to give further directions for the conduct of the proceedings’. Thus, the ruling tried to address the conflict between freedom of religion and impracticalities that follow during proceedings from a procedural perspective.
Judge Murphy stated in his ruling that the niqab has become the ‘elephant in the courtroom’, with judges often uncertain how to tackle the issue. He is quick to outline that his ruling is only applicable to defendants in the Crown Court. This is because the situation is one in need of a higher court or Parliament to issue guidance in the interests of uniform application of the law. Judge Murphy rightly describes that the a failure to do this would result in ‘judicial anarchy.’
What decision has been reached?
The trial of Ms Dawson is due to commence on 4th November. Judge Murphy has reached a compromise on the submissions put forward by both counsel for the prosecution and defence. Ms Dawson will be able to wear full religious dress including the niqab during the trial. However, she will need to remove it while she is giving evidence, consequently showing her face to members of the jury, Judge Murphy and counsel. Whilst she is giving evidence, a screen will be offered to shield the defendant from the public.
Some have expressed outrage and concern that the judicial system is pandering around the outright ban of face covering in a courtroom. This argument does have weight to it when one considers the ability of a jury to assess the defendant’s reactions to evidence posed against her.
A good example of this is found in the live tweeting by @CourtNewsUK from Blackfriars Crown Court at the very first hearing in the matter:
“Judge permits full burqa-wearing woman to give plea at Blackfriars Crown Court”
“Jury will be able to assess her by observing head and eye movements, court hears”
“I am sitting pretty close but finding it hard to pick up any emotions…”
With the practicalities aside, the impact on the defendant of uncovering her face in front of men outside the immediate family needs to be assessed. Judge Murphy relies on Shaykh Muhammads Al-Munajjid’s exceptions to the general rule of face covering. It is outlined that when a woman is giving testimony, whether as a witness or defendant, it is permissible for the judge to look at her for the sake of identification. Further, Shaykh al-Dardeer is quoted in the judgment: ‘it is not permitted to give testimony against a woman in niqab until she uncovers her face so that it may be known who she is and what she looks like’.
Judge Murphy uses these examples to influence his understanding of when it is ‘permissible’ for a woman to uncover her face. The obvious issue with this is that how one chooses to practice and express religion is subjective. A Muslim woman does not necessarily cover her face because she feels she is not ‘permitted’ to uncover it. It can simply be a matter of choice and personal belief in how best to praise and celebrate ones religion. Thus, telling a woman who chooses to wear the niqab that she is now ‘permitted’ to uncover her face for the sake of testimony ignores this fact.
The obvious issue with this is that how one chooses to practice and express religion is subjective.
Competing with this issue is the rule of law. The law of the land is to apply equally to all who come before the court. Judge Murphy outlines this to be ‘regardless of ethnicity, religion, or any other personal attributes.’
This means that if a 22-year-old Muslim female can cover most of her face for all of her trial excluding testimony, so could a 22-year-old atheist male. It has been advanced by critics of the decision that following this ruling, anyone can now enter the courtroom to face trial in a balaclava. There would simply be a requirement to uncover for the purposes of identification and testimony. This of course is an absurd interpretation, but one that is nonetheless left open by the judgment.
What is the solution?
To summarise the problem, the niqab is impractical for the purposes of court procedure. This can’t be denied. The solution to the problem on the other hand is complex because it requires legislation to be passed by Parliament. No party wants to be seen as ignorant or Islamophobic. No court is willing to enter into a judgment about the subjective nature of religion. However, decisions need to be made. Parliament should strive to strike a proportionate balance between pragmatism in the justice system and the right to express one’s religion. Party politics should play no part in such an expedition. This is arguably an impossibility, rendering Judge Murphy’s fears of judicial anarchy an alarming possibility.