No Face Veils in Court

By Gerry, Felicity | Nottingham Law Journal, Annual 2016 | Go to article overview

No Face Veils in Court


Gerry, Felicity, Nottingham Law Journal


INTRODUCTION

In January 2016, Lord Neuberger, President of the Supreme Court indicated his view in the above quote that face veils should not be worn in court if evidence is contested. (3) He had previously said in a speech that it was necessary to have some "understanding as to how people from different cultural, social, religious or other backgrounds think and behave and how they expect others to behave. Well known examples include ... how some women find it inappropriate to appear in public with their face uncovered." (4) The speech was misreported and the 2016 news report was clearly an opportunity for him to clarify his views. The confusion arising from the media reports of his speeches and interviews perhaps indicates how vexed the issue of face veils has become (5).

The current state of the criminal law appears to be that a face veil should be removed (by a witness or a suspect) when credibility is in issue. In tackling the issue of veiling on a case by case basis, ity could be argued that the courts have failed to have regard to wider issues of women's empowerment by being veil free. Baroness Hale, Deputy President of the Supreme Court, has said that women giving evidence in court should do so without a face veil. She said she had come to this view when ordering a mother in a family court case to remove her veil in order to assess whether the witness was lying and now took the view that the same should happen in criminal cases. She suggested that judges should be able to insist that women reveal their faces to juries (6). Recent cases have exposed reasoning based on open justice and social interaction that effectively conclude a full face veil is irrelevant when most evidence is given but can impeded decisions where the credibility of a witness or party is in issue. The question asked in this paper is whether, by accepting veiling, we are disempowering women by not seeing women in the legal process as we see men.

When the French ban on women wearing face veils in public was upheld in the European Court of Human Rights, Interior Minister Manuel Valls, from the Socialist Party was reported as saying "The law banning the full veil has nothing to do with Islam but it is a law liberating women." (7) There is no blanket ban on the face veil in England and Wales and this paper does not seek to argue that there should be, but courts and tribunals have had to consider what to do when a woman wishes to give evidence in court wearing a face veil.

Much has been written about the wearing of a face veil generally from a religious and feminist perspective by those both for and against the practice. However, almost nothing has been said about the defendant's right to a fair trial. That right should not easily be waived. The current state of the law is that a balancing exercise must be applied. The balance seems to be that veils can be accommodated save for where credibility of a witness or party is in issue. This paper recognises that the issues are complex and that, subject to raising concerns over sanction, the current approach is proportionate. However, a preliminary argument is raised regarding the wider issues at stake in relation to gender equality which have not, as yet, been addressed. It is axiomatic that there should be a recognition of rights in the context of sisterhood and in the context of religious recognition but, on a practical level, perhaps the most frightening future for women is not whether women are to be veiled, but a formal justice system where the experiences of women are undervalued or simply ignored as they were in the past (8). Important work has been done over recent generations to give women access to justice and accommodate the needs of vulnerable women. This has necessitated recognition of culture and beliefs. It is not suggested that this work should be undone, only that we consider the wider issue of visibility of women as an empowerment issue.

The issue of the full face veil in legal proceedings in England and Wales, therefore, gives rise to major issues including gender equality, religious observance, open justice and social interaction. …

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