The long-running debate about the full-faced veil (the niqab) has arisen again in relation to a witness’s right to provide evidence in court whilst wearing the niqab. The 22-year old witness Rebekah Dawson is facing trial in October at Blackfriars Crown Court for the alleged intimidation of a witness. Ms. Dawson claims that to force her to give evidence without a full-faced veil contravenes her religious beliefs, which are protected under Article 9 of the Human Rights Act 1998 – the freedom of thought, conscience and belief. Judge Peter Murphy stated that the issue turned on how to balance the witness’s right to have her religious choices respected with the public interest in conducting criminal procedure “in accordance with the rule of law, open justice and the adversarial trial process”.
In reaching his decision, the judge considered the recent case decided in the European Court of Human Rights (ECtHR) which upheld the judgments of the domestic courts in justifying the health and safety measures that prevented Shirley Chaplin, a nurse from Exeter, from wearing a necklace with a cross. The ECtHR unanimously rejected the applicant’s referral, citing that:
“As regards Ms. Chaplin, the importance for her to be allowed to bear witness to her Christian faith by wearing to her cross visibly at work weighed heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety or a hospital ward was inherently more important…the hospital managers were well placed to make decisions about clinical safety.”
The principle arising from this reaffirms that necessary and proportionate restrictions can be imposed on religious freedoms. Murphy recognised that it is a personal choice should be “respected as a manifestation of religion or belief”. On balance however, the public interest considerations were favoured:
“the ability of the jury to see the defendant for the purposes of evaluating her evidence is crucial…the right to give evidence involves a corresponding duty to submit that evidence to the scrutiny of the jury.”
Thus a compromise was reached on this issue, allowing Ms. Dawson to wear the full-faced veil at all times in the courtroom except for when giving evidence, this also includes limiting the visibility of the defendant’s face just to the judge, jury and legal counsel, as well as prohibiting any depiction of Ms. Dawson’s face in the court artwork. Such a compromise appears to have left neither side of the debate satisfied. The National Secular Society objects to the decision, claiming that “it is vital that defendants’ faces are visible at all times including while others are giving evidence”. Whereas Ms. Dawson’s defence barrister Susan Meek argued that the veil does not impede the ability of the jury to scrutinise the witness’s evidence and that the right to wear the veil in public should extend to the courtroom:
“There is no legislation in the UK in respect of the wearing of the niqab. There is no law in this country banning it. The jury will be able to determine her demeanour while wearing the veil. Demeanour is not just how their mouth moves, it is how their head moves, their eyes move, their hands move. That will be fully visible to the jury and no bar to her giving evidence.“
This issue has sparked several politicians including Jeremy Browne (Liberal Democrat Home Office minister), Lord Woolf (former Chief Justice) and Jack Straw (former Labour Justice Secretary) to call for national guidance on the banning of the full-faced veil for muslim women. The court’s decision coincides with the recent controversy over the ban on veils at Birmingham Metropolitan College. The college was accused of discrimination after ordering muslim women to remove their face coverings at the school so that individuals were easily identifiable to teachers at all times. The college was presented with a petition of over 8,000 signatures against the order and met fierce criticism from politicians. The college swiftly withdrew the measure after the ensuing backlash. Responding to the college’s actions, Nick Clegg indicated that whist he was “uneasy” with the ban considering it “very un-British to start telling people what to wear”, he did feel that wearing the full-faced veil in schools may not be appropriate since teachers should be able to address their pupils “face to face”.
Highlighting the importance of the feminist discourse on the niqab debate Sarah Wollaston, MP for Totnes, writes for the Telegraph to remind the public of the dangers of protecting the freedom to choose to wear the full-faced veil. Wollaston similarly calls for a national debate on the issue rather than leaving the it to be delegated to individual institutions to make ad hoc decisions as a matter of simple ‘dress code’. Wollaston argues that the issue surrounding the niqab goes much deeper than simple practicalities, stressing the implications for women’s rights were the niqab allowed to be worn in the public sphere:
“There are serious consequences for women if they are hidden from view in our courts and our classrooms. For individual campaigners this may be a free choice but what of those who, once the niqab becomes an accepted norm, are pressured into compliance as a badge of piety or purity? It would be naive to think that a thirteen year old would have complete freedom to reject family or peer group pressure… Women should be clear that the burka is a symbol not of liberation but of repression and segregation… We must be bold in resisting those who would allow the niqab to masquerade as personal freedom…Sometimes you have to force people to be equal.”
Such views raise the complex questions of the essentialist feminist voice, asking whether one woman can speak on behalf of all women regardless of cultural divisions and perspectives. Allie Renison directly challenges Wollaston on this point:
“I firmly believe in the idea that feminism should not be about collectivised standardisation but rather freedom of individual expression. Women shouldn’t feel cowed by the tyranny of a perceived majority into letting other women dictate how they should set their own standards.So I find myself scratching my head at how Sarah Wollaston as a woman…can back banning the niqab on the basis of presuming to know better than the women in question wearing it.“
In a liberal society, the debate strikes a chord with our paramount protection of fundamental freedoms. In prioritising the freedom of religious choice we may yet be restricting the actual freedom for women to choose without pressure. The banning of the full-faced veil has certainly been divisive in many political schools of thought; perhaps the time has come for Parliament to provide clarity on its position of this contentious issue.
For further information about this subject see:
http://www.theguardian.com/world/2013/sep/16/muslim-woman-niqab-judge-ruling
http://www.bbc.co.uk/news/uk-19467554
If you are interested in topics like this then you might be interested in our Law Masterclass (International Law and Human Rights) on the 23rd November.