Misguided Cover-up
^ TOPPreviously on leadingcounsel
The issue of whether the full veil known as the niqab should be allowed to be worn in court hit the news last year. At the time I wrote a full article which appeared here on Monday 13 November 2006, Veiled in Mystery. I shall not repeat what I said then, so for those who did not both read and recall the article it would perhaps be best to click on the link and read that one before this.
^ TOPNew guidelines
On April 24 new official guidelines were issued by the Judicial Studies Board’s Equal Treatment Advisory Committee. It has been left to be decided on a case-by-case basis whether the veil should be worn, the test being that it should be permitted "providing it does not interfere with the administration of justice".
It is reported that Mrs Justice Cox stated that the committee respected "the right for Muslim women to choose to wear the niqab as part of their religious beliefs", whilst accepting that the interests of justice remained paramount.
Since the majority view is that the niqab need not be worn as a matter of religious necessity (as opposed to custom) the committee's viewpoint seems to have started from the wrong position entirely.
^ TOPFair hearing
Stating that it is for the judge to consider what steps are required for a fair hearing (both as regards the niqab wearer and the other parties) the committee also considered that it should not "be assumed without good reason that it is inappropriate for a woman to give evidence in court wearing the full veil". Adding for good measure that if the judge thought it necessary to request removal of such veil that the request should be "thoughtful and sensitive", with one possibility being clearing the court room of anyone not directly involved in the case.
There are two completely distinct issues here. Witnesses and advocates.
^ TOPAdvocates
Quite apart from whether an advocate may be heard as effectively with the veil in front of the mouth, the judge being able to see your reaction can be useful. Imagine, the other way round, the pandemonium if the judge wore the veil when you were trying to make submissions. How would you gauge the reaction? A similar objection can be made in respect of jurors. Wearing a headscarf is no problem, but any advocate needs to see how the tribunal of fact is reacting.
^ TOPWitnesses
The need is even more extreme with a witness. Consistently on the authorities, demeanour is regarded as important in order to determine whether a witness is telling the truth. (can anyone seriously suggest that it is not easier to decide whether someone is telling the truth or not if you can see their face?). If the committee do not realise that, then the entire basis of the report has been error. If they do realise that, but find it more expedient to leave it to a judge to decide that on a case-by-case basis, that is also wrong. It would seem that it must be the former since the guidance seems to assume that the mere fact of wearing the veil is not a good reason for its removal when giving evidence (see the comments above).
^ TOPSimple rules
This issue started regarding an advocate wearing the niqab. Of the various parties mentioned, it is least important that an advocate shows her face, most acceptable for an advocate to wear the niqab. Witnesses, judges, jurors; in descending order of importance you need to gauge their reactions. Anything which interferes with that is wrong. The rules should state that simply, not leave it to be worked out on a case-by-case basis. The position should be that the veil should not be worn by witnesses unless in the circumstances there is a compelling reason to the contrary.