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Truth and Demeanour: Lifting the Veil

Document Cited authorities 2 Cited in Related
Vincent
Date01 May 2014
DOI10.3366/elr.2014.0208
Pages254-259
AuthorDonald Nicolson
Published date01 May 2014
<p>In September last year Judge Peter Murphy upheld a request by a Muslim female accused at Blackfriars crown court in London to be permitted to wear a niqab (a veil which shields all but the wearer's eyes) in court on the ground that her religion prevented her being seen by men in public.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><italic>R v D (R)</italic> [2013] EqLR 1034. See P Walker, “Judge allows Muslim woman to wear niqab in London court”, The Guardian 12 September 2013, available at <ext-link ext-link-type="uri" xlink:href="http://www.theguardian.com/world/2013/sep/12/judge-allows-muslim-woman-wear-niqab" xlink:type="simple"><italic>http://www.theguardian.com/world/2013/sep/12/judge-allows-muslim-woman-wear-niqab</italic> </ext-link>.</p> </fn> He had initially refused her request on the ground that, while courts should show full respect for everyone's religious beliefs, they have to be sure of the identity of those appearing before them.<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>S Hickey, “Judge refuses to let Muslim defendant wear burqa in court”, The Guardian 23 August 2013, available at <ext-link ext-link-type="uri" xlink:href="http://www.theguardian.com/law/2013/aug/23/judge-refuses-muslim-to-wear-burqa-court" xlink:type="simple"><italic>http://www.theguardian.com/law/2013/aug/23/judge-refuses-muslim-to-wear-burqa-court</italic> </ext-link>.</p> </fn> However, after full argument, Judge Murphy relented because a female police officer had examined the accused in private and was able to confirm her identity. This seemed a sensible compromise between religious freedom and the interests of justice. However, the judge also ruled that if the accused wanted to give evidence in her defence she could be hidden from view of the public, but not from the jury, judge and legal counsel as “the ability of the jury to see the defendant for the purposes of evaluating her evidence is crucial”.<xref ref-type="fn" rid="fn3"><sup>3</sup> </xref><fn id="fn3"><label>3</label> <p><italic>R v D (R)</italic> at para 69.</p> </fn></p> <p>Inevitably the decision led to much media comment and debate, with Kenneth Clarke MP lending his support to the judge,<xref ref-type="fn" rid="fn4"><sup>4</sup> </xref><fn id="fn4"><label>4</label> <p>M Weaver, “Ban court witnesses from giving evidence in veil, says Ken Clarke”, The Guardian <italic>3</italic> November 2013, available at <ext-link ext-link-type="uri" xlink:href="http://www.theguardian.com/law/2013/nov/03/ban-court-evidence-veil-ken-clarke" xlink:type="simple"><italic>http://www.theguardian.com/law/2013/nov/03/ban-court-evidence-veil-ken-clarke</italic> </ext-link>. </p> </fn> the new Lord Chief Justice declaring that judicial guidance will be issued,<xref ref-type="fn" rid="fn5"><sup>5</sup> </xref><fn id="fn5"><label>5</label> <p>O Boycott, “Veils in court: judges to be given guidance, says lord chief justice” The Guardian 5 November 2013, available at <ext-link ext-link-type="uri" xlink:href="http://www.theguardian.com/world/2013/nov/05/veils-court-judges-skype-lord-chief-justice" xlink:type="simple"><italic>http://www.theguardian.com/world/2013/nov/05/veils-court-judges-skype-lord-chief-justice</italic> </ext-link>.</p> </fn> and another government minister calling for a national debate on whether the state should ban the wearing of the veil in public.<xref ref-type="fn" rid="fn6"><sup>6</sup> </xref><fn id="fn6"><label>6</label> <p>Jeremy Browne MP. See “Lib Dem minister calls for debate on Islamic veil”, The Guardian 16 September 2013, available at <ext-link ext-link-type="uri" xlink:href="http://www.theguardian.com/politics/2013/sep/16/debate-muslim-veil-lib-dem-minister" xlink:type="simple"><italic>http://www.theguardian.com/politics/2013/sep/16/debate-muslim-veil-lib-dem-minister</italic> </ext-link>.</p> </fn> No doubt the debate will run and run, not least because even feminists are divided on the issue. However, on the narrower issue of whether witnesses should be allowed to wear veils while testifying, the alleged conflict with the interests of justice may be more apparent than real. Contrary to the majority decision of the Canadian Supreme Court in <italic>R v N S</italic> <xref ref-type="fn" rid="fn7"><sup>7</sup> </xref><fn id="fn7"><label>7</label> <p><a href="https://ca.vlex.com/vid/r-v-n-s-682697661">[2012] 3 SCR 726</a>.</p> </fn> that religious freedom as represented by the desire of witnesses to wear the niqab must be weighed against the right to a fair trial, this article will argue that the observation of a witness's face and body is unnecessary to a fair trial.</p> TRUTH AND DEMEANOUR

The idea that fact-finders need to observe witness demeanour is an ancient one8

A Blumenthal, “A wipe of the hands, a lick of the lips: the validity of demeanor evidence in assessing witness credibility’ (1993) 72 Nebraska L Rev 1157 at 1158.

and underpins two central aspects of the Anglo-American procedural model. The first is the principle of orality, which requires all evidence to be spoken to live in court by a witness (which, in turn, partly explains the rule excluding hearsay evidence in criminal cases). The second is the idea that there should only be a very limited right of appeal on factual decisions from trial courts. As the House of Lords stated in Kilpatrick v Dunlop, declining to hear an appeal on the facts:9

Unreported (1911), cited in...

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