Judge Peter Murphy referring to only the niqaab, the covering of the face, by the defendant during proceeding in Crown Court. The defendant was identified by a female police officer before the proceedings. There was no issue of witness identification, due to the woman wearing the niqaab while the alleged offence took place.
The defendant stated that her Muslim faith requires that she may not reveal her face in the presence of men. Judge Peter Murphy stated that he would take no steps to examine the sincerity of her belief; firstly the Court must be consistent, it would be impractical leading to the court engaging in religious debate, and would result in a highly subjective decision making the Court vulnerable to the “charge of discrimination”.
Judge Peter Murphy highlights that this issue is a “question of law” not of “judge craft”. The qualified right to manifest religion or belief (Article 9 European Convention on Human Rights) is incorporated into domestic law by the Human Rights Act 1998.
Article 9 provides:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society
The right to freedom of thought, conscience, and religion, is absolute while the right to manifest religion or belief, is a qualified right.
The Court has the burden not to act in a way incompatible with a Convention right. However, the Court can restrict a qualified right if it is ‘in the interests of justice’.
Restrictions on the religious manifestation must satisfy four legal requirements.
- Established basis in law – “no legal restriction on the wearing of the niqaab anywhere in the United Kingdom.”
- Must be legitimate, in other words pursues an aim set out in Art 9 (2) in this case the prevention of disorder and crime.
- Necessary in a democratic society – “matter of upholding the rule of law in a democratic society”
The rule of law, principle of open justice, and the principle of adversarial trial.
The rule of law is absolute but the other principles can and are degraded.
“No tradition or practice, whether religious or otherwise, can claim to occupy such a privileged position that the rule of law, open justice, and the adversarial trial process are sacrificed to accommodate it. That is not a discrimination against religion. It is a matter of upholding the rule of law in a democratic society.”
The principle of open justice is defined as “criminal proceedings should be held in open court, in public, and be open to reporting by the press”. Judge Peter Murphy bends the principle of open justice for the defendant. “The court may, however, be able to mitigate that sense of discomfort in some ways, for example by forbidding the making or dissemination of images of the defendant in court, a minor but justified restriction on the freedom of the press”
Here I take issue this special treatment of the defendant seems an undue disregard for the principle of open justice. All defendants are made uncomfortable by being shown in the press this should not be taken into consideration. Joshua Rozenberg, writing in the Guardian also raises this point, “And why should a defendant, acquitted or convicted, be allowed to prevent an image of herself being published?”
Yet the principle of an adversarial trial is upheld. The judge states that it compromises, and may in fact cut to the essence of a fair and just trial if witnesses, jurors, and judges cannot see the defendant. The assertion of the right to wear the niqaab can not deprive the court the power over its own procedures.
The defendant is free to wear the niqaab during trial but if the defendant gives evidence, she must remove the niqaab throughout her evidence.
It appears a fair balance has been struck between justice and the right to manifestation of religious belief. However, the restriction on the press and therefore the public’s right to see justice is too constraining and it will be interesting to see what Parliament or a Higher Court would hold.
(All quotes unless otherwise identified are from The Queen -v- D (R))