Veiled in Mystery
^ TOPGuidance from Mr Justice Hodge
Today (Monday 13 November 2006) a hearing before Immigration Judge George Glossop will resume at Hanley, Stoke-on-Trent. The matter was adjourned because a week ago a female legal executive appeared in a veil. The judge wanted her to remove it as he could not see her face and could not hear her as clearly as he would have liked. She declined. Therefore the matter was put back for a week so that the judge could seek guidance from Mr. Justice Hodge, president of the Asylum and Immigration Tribunal. He in turn is likely to have spoken to the Lord Chief Justice.
The guidance from Mr. Justice Hodge pointed out that if a judge or other party to the proceedings was unable to hear the representative clearly then the interests of justice were not being served and other arrangements would have to be made. Mr. Justice Hodge thought judges needed to make their decisions on this on a case-by-case basis. The test would be the interests of justice. It would seem likely therefore that the legal executive will either have to remove the veil or someone else will have to take over the case.
^ TOPLord Reid
Obviously there cannot be any rational or sensible objection to lawyers or witnesses wearing a turban or hijab (the black scarf which covers the head and neck leaving the face clear). These are routinely used and permitted. Covering the face is different however. It is not just a question of hearing the words. It is about seeing the face and gauging the reactions. That is why appeal courts are always careful about overturning a trial judge. They may have the transcripts of the evidence, but having not seen and heard the witnesses, they cannot decide in the same way as the trial judge as regards who was telling the truth. Lord Reid in Benmax v Austin Motor Co Ltd [1955] 1 A.C. 370 at 375-6 talked of "the advantage of seeing and hearing a witness" then cited the previous judgment of Lord Thankerton referring to the "advantage enjoyed by the trial judge by reason of having seen and heard the witnesses". Whilst it is important for a judge to be able to hear a lawyer properly, seeing the face is also important in judging how the lawyer is reacting to responses from the judge.
^ TOPMore important with a witness
It is yet more important with a witness. A judge could not properly determine whether the witness was telling the truth just based on the words without seeing the face. Therefore if a witness was allowed to give evidence with the face covered, the other side might not be able to expose the witness as lying when they could have done had the judge been able to look at the witness’s face. Losing that opportunity would seem plainly to be against the interests of justice and indeed the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights.
Occasionally blind advocates will of course have to deal without seeing the face of any witness but their lives will revolve around judging matters on hearing alone. In any event, the fact that some people have to bravely struggle to overcome a handicap surely cannot mean that judges or juries generally should be handicapped by not seeing the face of the witness
^ TOPMichigan Ruling by Judge Paruk
This issue regarding a witness wearing a veil in court arose last month in the United States Michigan courts (Detroit area). Judge Paruk told litigant Ginnah Muhammad that she would have to remove her veil when she testified, as her niqab left only her eyes visible. The judge told her that if he was to be able to see whether she was telling the truth or not that he needed to be able to see her face. Therefore if she would not remove her veil, her case would be dismissed (since her claim depended upon her evidence). She would not remove the veil and therefore her claim was dismissed. Any other decision would have deprived the defendant of the right to test her evidence and allow the judge to consider whether she was telling the truth or not. Therefore the position should be the same on any case in this country.
^ TOPAfghan Experience
Although there are dissenting opinions, the majority of Muslims interpret the Quran (Koran) as not requiring the face of a woman to be covered up, merely requiring modesty in dress. Therefore not allowing the veil in court should not be regarded as infringing a core religious tenet. In any event, if the courts are to be used they have to be allowed to operate on the basis which allows judges the best possible opportunity to get at the truth.
The experience of face veils that I remember best was not in court at all. I was travelling with one other English person, and two Afghans, in a remote part of Afghanistan. Many women there wore what is known as the Afghan Burqa, usually coloured blue, which covers all of the body and at the front has a grille through which the woman can look. Some are designed so that if the woman wanted to look at something the whole head has to be turned so that their husband can see what or who the woman is looking at. Virtually every woman had some outfit which covered the face. My Afghan travelling companions, both extremely devout Muslims, did not themselves think that women needed to cover their faces, and pointed out that many probably did not want to, but there had been instances of women who left their faces uncovered who had had acid thrown at them.
^ TOPMemories of an Afghan Airport
Myself and the other Englishman were catching an aeroplane from the local airport back to Kabul. Much of the airport had been destroyed. There were still lots of cartridge shells scattered all over the place. When the plane landed amongst the cargo was a large wooden box with the words "anthrax vaccine" written on it. Once it was empty all of the passengers got on the plane. The plane was full, and a good number of the passengers were women. All of the women were wearing veils.
The moment the plane lifted off the silent veiled women were transformed. All the veils came off and they all started chatting to one another. They were still of course all modestly dressed and had their heads covered. It seemed however, apart from relishing the freedom to do what they wanted, that they too valued being able to see the face of person they were talking to so as to understand and gauge their reactions as well as their words.
^ TOPInconsistent with giving evidence
How a person chooses to dress is in the main their own concern but the ability to impede communication and understanding has to be borne in mind where the veil is concerned. That means it is certainly inconsistent with giving evidence, because to get at the truth the judge needs to see the face and the reactions as well as listen to the words. Witness evidence should only be accepted if the judge can see the face.