22 September 2013


Past posts in this blog have noted controversy about facial covering, for example Cory Bernardi's characterisation of the burqa as "unaustralian", comment by Ray King (exponent of sniper rifles to inject satellite-tracked microchips into crime suspects) that the burqa had no place in Australian society and disagreement about the Criminal Investigation (Identifying People) Amendment Bill 2013 (WA).

Murphy J in The Queen v D (R) in the Crown Court at Blackfriars (UK) has considered the wearing of the Niqaab by a defendant in criminal proceedings.

The judgment [PDF] indicates that
he defendant, to whom I shall refer in this judgment as D, is a woman who has been charged on indictment at this court with a single count of witness intimidation. The facts alleged are not relevant for the purposes of this judgment, except for the fact that the defendant is alleged to have committed the offence while wearing the burq’a and niqaab, and no issue of visual identification will arise at trial.
The question now before me was initially raised by the Court of its own motion, and not by the prosecution or the defence. The case was listed before me for a plea and case management hearing on 22 August 2013. A person, who both the prosecution and the defence agreed was D, appeared and surrendered to the dock. D was wearing a burq’a and niqaab. (I understand that burq’a is the term applied to the black loose shroud which covers the head and body, and that niqaab is the term applied to the black veil which covers the entire face, except for the eyes. In case my understanding is wrong, and so that there is no doubt, my concern is with the covering of the face, by whatever means that may be achieved. I am not concerned with any  other aspect of D’s dress or appearance.) When I refer to the niqaab in this judgement, I refer to a covering of the face.
Through her counsel, I conveyed to D the court’s request that she reveal her face (but no other part of her body) for the purpose of identification. After conferring with D, counsel said that D declined to comply with my request because her Muslim faith requires that she may not reveal her face in the presence of men. It may be that this refers to men who are not members of her immediate family.
I decided to take time to consider the matter. I adjourned the hearing until 12 September 2013, to be listed before me for further proceedings including legal argument, and extended the defendant’s bail until that date. It became clear to me that, because the issue of the niqaab was bound to recur during the proceedings, it would be desirable to deal with it on a broader basis during the plea and case management hearing. I asked counsel to submit skeleton arguments dealing with the way in which the Court should approach the matter. I received skeleton arguments from both parties, and heard oral argument on the adjourned date. I am extremely grateful to both counsel for their clear, well-judged, and helpful submissions. I also received an expert report from Professor Susan Edwards, an expert witness on Gender and Islamic Dress, which was prepared on behalf of D.
At the hearing on 12 September 2013, I allowed the defendant to be identified by means of evidence from P.C. Hughes, a female police officer who knows D, and who observed D in private without her niqaab during a short adjournment for that purpose, and was able to say that she was certain that the person before the Court was in fact D. D was arraigned and pleaded not guilty to the sole count of the indictment. I conducted a general plea and case management hearing and heard argument about what further directions, if any, should be given about the wearing of the niqaab during the proceedings. Having heard argument, I adjourned the case further until 16 September 2013, to prepare this judgment.
After a consideration of UK and other precedent, along with discussion of principles Murphy J states
I propose to adopt the least restrictive approach consistent with what I see as the necessity of enabling the Court to conduct the proceedings fairly and effectively in the interests of all parties. In my judgment, the following principles should be applied when a defendant in the Crown Court asserts the right to wear the niqaab during the proceedings.
The question of identification must be dealt with in open court whenever it arises. The defendant should be asked to remove the niqaab for this purpose. If she refuses to do so, the Court should adjourn briefly to allow an officer or other reliable female witness to examine the defendant’s face in private, and to give positive evidence of identification in open court. This procedure must be followed on every occasion when identification is needed, especially before arraignment, the return of the verdict, and sentence, if the defendant is convicted. There may be cases where this procedure is insufficient, and where the niqaab must be removed, for example when there is an issue of visual identification, or suspicion of impersonation.
In general, the defendant is free to wear the niqaab during trial. The judge should, nonetheless, in the absence of the jury, advise the defendant of the possible consequences of so doing, and make it clear that she will not be free to do so while giving evidence. She should be invited to remove the niqaab during trial, and given time to reflect and take advice if she wishes to do so. Again, if there is an issue of visual identification to be decided by the jury, it may necessary to order that the niqaab be removed, at least while evidence relevant to that issue is given.
If the defendant gives evidence, she must remove the niqaab throughout her evidence. The Court may use its inherent powers to do what it can to alleviate any discomfort, for example by allowing the use of screens or allowing her to give evidence by live link. Again, the judge should, in the absence of the jury, advise the defendant of the possible consequences of refusing to remove the niqaab. She should be invited to remove the niqaab and given time to reflect and take advice if she wishes to do so. 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.
I recognise that particular circumstances may arise in other cases which may lead a judge, having considered the matters which must be considered, to make a different order. I cannot, and do not attempt to enumerate such situations, but they may include cases in which the evidence is effectively agreed; or where the defendant’s evidence would be purely formal, or would not be challenged. This must be a matter for the judge to decide on the facts of each case.
Though I have made much use of the feminine form in this judgment, everything I have said is to be taken to apply to male defendants in equal measure, should an analogous situation arise; and it applies alike to both male and female defendants of any, or no, religious faith.
Accordingly, before this plea and case management hearing ends, I give the following directions -
(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings.
(2) The defendant is free to wear the niqaab during trial, except while giving evidence.
(3) The defendant may not give evidence wearing the niqaab.
(4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.
(5) Photographs and filming are never permitted in court. But in this case, I also order that no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court.