The Niqab issue for a defendant
A response to recent events from Amjad Malik QC. President of AML.
When HH Judge Peter Murphy at Blackfriars Crown Court in The Queen v D (R), questioned whether the person wearing a full face covering, the niqab, was in fact the named female defendant on the indictment, who was appearing in court and represented, it was felt by some that a minor difficulty was being turned into an un-necessary problem in the administration of criminal justice. There was no real difficulty in establishing the identity of the defendant at this Plea and case management hearing. The hearing at which a defendant will enter a plea of not guilty or guilty to the offence charged.
The issue raised was the identification of the defendant. Namely, whether the person appearing at court and entering a plea to the offence charged was in fact the same person who had been arrested and charged with the offence. Identification of the defendant can be established in a number of ways. The simplest is that of providing a signature at court. The procedure eventually adopted by the Judge was that of recognition in private of the female defendant with her niqab removed. The woman in niqab was required to remove her niqab in a private room in the court building and her face was seen by a female police officer who had previously been involved in her initial arrest and was therefore able to recognise her face. The police officer also had a custody photograph taken of the arrested person at the police station and was able to make a comparison.
"The experience of many judges has shown that it is often possible to evaluate the evidence of a woman wearing a niqab, hence the need to give careful thought to whether the veil presents a true obstacle to achieving justice."
The question of niqab in the Crown Court has been carefully considered and helpfully set out in the "Equal Treatment Bench Book", is a guidance for judges that aims to prevent discrimination in court. This acknowledges that for some women the niqab can be "an important element of their religious and cultural identity". This is simply the recognition of the Article 9 European Convention right, the right to manifest one's religion. The sincere belief in the observance of women veiling their faces. The guide goes on: "To force a choice between that identity and the woman's involvement in the criminal, civil justice, or tribunal system... may well have a significant impact on her sense of dignity." The manual tells judges to focus on whether it's appropriate in the circumstances to ask a woman to remove a niqab and when the Article 9 right must give way to maintaining the administration of justice. "How does the ability or not to observe her facial expressions impact on the court's decision-making," it asks. "The experience of many judges has shown that it is often possible to evaluate the evidence of a woman wearing a niqab, hence the need to give careful thought to whether the veil presents a true obstacle to achieving justice." It was clear that great thought had been given to this issue in these guidance principles provided to trial Judges and it was plain that very specific reasons were required from a prosecutor, a co-defendant or indeed by the Judge as to why a jury would need to see the defendant's face, if she exercised her right to give evidence on her own behalf. It was thought that significant reasons would be required relating to the circumstances of the case, as opposed to a general assertion, that it was necessary to see how the defendant's words were spoken and her reaction to the questions posed to her. It was thought that strong reasons would have to be given to demonstrate how and why a jury were likely to be deprived of an essential tool to evaluate the defendant's evidence. It was hoped that this was a fact specific question to be considered in the individual circumstances of each case and the relevant facts of the offence charged. The case of Queen v D (R) seems to suggest that in every case where a female defendant is required to give evidence on her own behalf in a criminal trial, the bal=lance will always be in favour of removal of her niqab in order for a jury to be able to properly evaluate her evidence. This is a surprising outcome bearing in mind the experience of a number of Judges and practitioners in the criminal justice system, that it is often possible to evaluate properly the evidence of a woman wearing a niqab and the veil does not always present a true obstacle to achieving justice.