“The Judicial Studies Board has recently published in 45 pages “Fairness in Courts and Tribunals: A summary of the Equal Treatment Bench Book”.
Considering this guidance is aimed at judges and magistrates [and others involved in the courts system] much of it is like feeding a grown man….oops……a grown person of either or indeterminate sex…….with a spoon. However where perhaps guidance might be very useful; on the subject of face covering the message is vague. Perhaps that is at it should be. Judges and magistrates must be able to use their discretion. Society expects that discretion to be exercised wisely. The consequences are grave if that facility is found wanting. The relevant paragraphs re the veil are copied below."
For those Muslim women who choose to wear the niqab, it is an important element of their religious and cultural identity. To force a choice between that identity and the woman’s involvement in the criminal, civil justice, or tribunal system (as advocate, witness, party, member of court staff or legal office-holder) may well have a significant impact on her sense of dignity and would likely serve to exclude and marginalise further women with limited visibility in courts and tribunals. This is of particular concern for a system of justice that must be, and must be seen to be, inclusive and representative of the whole community. While there may be a diversity of opinions and debates between Muslims about the nature of dress required, for the judicial system the starting point should be respect for the choice made, and for each woman to decide on the extent and nature of the dress she adopts. Any consideration concerning the wearing of the niqab should therefore be functional and appropriate to the circumstances of the particular case. The primary question is: what is the significance of seeing this woman’s face to the judicial task that must be performed? How does the ability or not to observe her facial expressions impact on the court’s decision-making, given her particular role in the proceedings? A distinction can be made between situations where this may be useful or important (for example, when assessing the evidence of a witness, particularly one whose evidence is in dispute), situations where it is essential (for example, for purposes of identification), and other situations where it may not be of any relevance (for example, for court clerks or ushers or where formal evidence which is not disputed must be given by a witness).
Victims or complainants. It is important that people are not deterred from seeking justice or from getting a fair hearing as a result of exclusion from the court process. Where possible a woman wearing a veil should be permitted to give evidence, either in court in her veil, or with the assistance of screens, video links or, in appropriate cases, by clearing the public gallery if she is happy to remove her veil. The most appropriate course will depend on the issues in the case. As with any consideration of permitted special measures, this is a point on which a decision should ideally be reached after discussion at a case management or preliminary hearing, rather than at a final hearing in open court. A short adjournment should be given to enable the woman concerned to seek guidance.
Witnesses or defendants. Similarly, a sensitive request to remove a veil may be appropriate, but should follow careful thought as attending court itself is a daunting prospect for witnesses and may affect the quality of evidence given. 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. Where identification is an issue, it must be dealt with appropriately and may require the witness to make a choice between showing her face or not giving evidence. Again, special measures may be available to mitigate the difficulty.
Advocates. The starting point should be that an advocate wearing a full veil should be permitted to appear wearing her veil. The interests of justice will be paramount and you may need to consider whether, in any particular circumstances which arise, the interests of justice are impeded by the fact that the advocate’s face cannot be seen or (if this be so) the advocate cannot be heard clearly.”
A further ramification of this cartoon controversy is that the Lib Dem parliamentary candidate and devout Moslem Maajid Nawaz who supported the publication of the drawing has been at the receiving end of death threats and a concerted attempt to oust him as his party`s 2015 general election candidate for Hampstead and Kilburn. Until the horrific murder of Lee Rigby by a self confessed “soldier of Allah” such threats might have had only little significance for those threatened. That now is not the case. Statements from police that returning British Moslems from Syria are liable to face arrest have probably ramped up the threat level to those of that faith who speak out against their co-religionists` Saudi sponsored Wahhabism.
The secularism of the country`s legal system is under threat. Courts offer those whose religious beliefs preclude their taking an oath on a holy book eg Orthodox Jews, the opportunity to affirm. I do not think I have ever sat on a case where a witness of Arabic appearance, identity or name ever declined the Koran in preference to affirm even when that witness has given evidence of activity contrary to his faith. That is perfectly understandable. Many who swear by the Gita, New Testament or the Hebrew Bible also admit to practices against the tenets of their religion`s founders. Perhaps the thinking and philosophical processes which initiated the Protestant Reformation of the early 16th Century and subsequent divisions or the breakaway from Orthodox Judaism by reformists in the mid 19th and 20th Centuries have yet to reach sufficient momentum to allow those Moslems of similar inclinations to have the courage and/or will to follow a similar path.
For every Justice of the Peace his/her next sitting could be that which delves deep into the way s/he considers that secularism must defeat the type of narrow mindedness which followed the Reformation and killed tens of thousands of Christians across Europe just because their understanding of Jesus Christ and His place in their society was in opposition to that of their fellows who believed in the same saviour. Colleagues in Leicester found themselves in just that situation in 2010. There are likely to be other unreported examples. With the repeal of insulting language as a basis for a s.5 charge I hope that those who might feel offended in future will come to understand that the country of Hogarth and Peter Brookes via Blackadder and TW3 exists in its current form from the very freedoms allowed those purveyors of occasionally offensive social humour.