Academic journal article Nottingham Law Journal

The Veiled Lodger - a Reflection on the Status of R. V. D

Academic journal article Nottingham Law Journal

The Veiled Lodger - a Reflection on the Status of R. V. D

Article excerpt

At the time of writing this article (January 2016) some 28 months have elapsed since His Honour Judge Peter Murphy gave judgment in the case of R v D. (1) His judgment, requiring a female defendant of the Muslim faith to remove her niqaab if she wished to give evidence in her own defence, was lauded as a paradigm of common sense by some and, an unwarranted interference with protected rights by others. The conservative press celebrated the fact that the institutional supremacy of the court had been preserved (2) whilst the liberal press noted the judge had respected an individual's right to wear the veil for the remainder of the proceedings. (3) Despite HHJ Murphy having reservations about circuit judges being seen to set a precedent and his request that the issue be clarified at a higher level, R v D appears to have become settled as a statement of principle. This article will suggest that the implications and unanswered questions of R v D are such that the failure of the senior judiciary or legislature to intervene is unsatisfactory and that guidance, based on a robust evidence base is necessary.

Background to R v D

The defendant in R v D was charged with witness intimidation and sent to be tried at the Blackfriars Crown Court. Her case was listed before HHJ Murphy for a Plea and Case Management hearing on 22 August 2013. She answered her bail dressed in a veil which covered the entirety of her face apart from her eyes. (4) The judge requested that she remove her veil, but through her counsel, she declined asserting that her faith prevented her from revealing her face in the presence of men. The judge adjourned the matter to 12 September 2013 for both parties to file skeleton arguments on the issue. On 12 September the judge heard argument and considered an expert report on 'Gender and Islamic Dress' from Professor Susan Edwards. Having considered the issues the judge drafted a judgment, handed down on 16 September 2013, which provided directions for the remainder of proceedings. The judge acknowledged that requiring the defendant to remove her veil would amount to an infringement of her right to freedom of religion as protected by article 9 of the European Convention of Human Rights (5) and, insofar as the majority of the proceedings were concerned, concluded that requiring her to remove her veil would be disproportionate to the aim to be achieved. However if the defendant wished to present her defence on oath to the jury, he concluded that the right of the jury to assess the defendant's demeanour outweighed her article 9 right and unless she removed her veil she would not be allowed to testify. In the event of her not testifying, the jury would be invited to draw adverse inferences as to her guilt. If she did remove her veil during evidence, screens would be erected so that her exposure to males who were unrelated to her was limited.

Following this ruling the case was adjourned for trial. The defendant did not testify at the trial and the jury were able to reach a verdict. They were subsequently discharged but, prior to the retrial, the defendant tendered a guilty plea to the indictment and proceedings against her co-defendant were dropped. The tendering of the plea extinguished any possibility of the case being referred for consideration of the Court of Appeal and so despite prompting much debate, the judgment has received no further review by the senior courts.

Media response to the judgment

HHJ Murphy's ruling divided opinion in both the popular and legal press. Many commentators were in favour of the ruling, primarily on the grounds that it upheld the fairness of the trial process. Gerry described it as 'common sense'6 and Hewson observed that "political statements of identity are all very well but they are not a basis to remodel our system of open justice". (7) Some, including Rozenburg, argued that the ruling did not go far enough and expressed concern that the jury would be deprived of the opportunity to assess the defendant's demeanour as evidence was called against her. …

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