The wearing of religious dress, specifically the burqa and niqab, has been the subject of debate and litigation over recent months. We have seen cases involving school uniform, what teachers, nurses and check-in desk assistants wear and recently the outlawing of the wearing of the burqa by France. Somewhat surprisingly, the courts of England and Wales had not previously considered in detail what should be done when a defendant attended court in a burqa and/or niqab. On 12 September 2013 His Honour Judge Peter Murphy considered in some detail what he would do in his court.
HHJ Murphy was to preside over the trial of a lady, not named in the judgment, facing a charge of intimidation of witnesses. The Crown Court procedure involves a number of hearings prior to the trial before a jury and the judge had to consider what to do about the defendant's refusal to remove her veil in public where men (other than her family) were present. It appears that at first there was something of a stand-off over the issue of how the defendant would be formally identified and it was only at the second hearing that the judge agreed that a female police officer could give evidence that the person in the dock was the defendant. The judge then held a hearing at which he heard argument on what directions should be given about the defendant wearing the niqaab for the rest of the hearings and the trial. Following that hearing he delivered a judgment.
In short, the judge ruled that the defendant could wear her niqab during the trial while in the dock, but would have to remove it while giving evidence from the witness box. The judge added that other arrangements could be put in place to restrict the extent to which the public could see her face - screens or TV links - but that it was important for the jury, counsel and the judge to be able to see her. It is important to note that the outcome is not one that can be simply transferred from the courtroom to internal disciplinary processes (be they staff or student). The judge makes clear that he is considering only the criminal law process and that different cases may well involve different considerations.
Numerous news outlets have carried reports on this ruling. Reading those news stories (and some of the comments upon them), one may reach the conclusion that allowing her to wear the niqab in court was an irrational affront to common decency and the British way of life or that requiring her to remove to give evidence was an outrageous assault on an individual's religious freedom (see, for example The Independent, The Telegraph, The Daily Mail.
However, in the view of the writer of this note, whether one agrees with the outcome or not the judgment is a good example of a decision maker considering carefully the competing interests engaged in this much litigated area and reaching a reasoned conclusion. This is reflected in the tone of the judgment which reads to me as one where the judge is somewhat surprised at the conclusion he reaches as it is contrary to the view that he held initially, but satisfied that he has considered and applied the law properly. We shall see whether anyone appeals or otherwise challenges the decision and what formal guidance if any is issued to judges.
In the meantime, for those grappling with decisions about whether and how to place restrictions on the wearing of religious dress, the written judgment (available here) is worth reading as it provides a good and clear framework for approaching the issue in a way that is consistent with the law.