No one is too pleased by the compromise on wearing a niqab in court – but now the issue will have to be addressed.

Judge Peter Murphy must have known the kerfuffle that would ensue after he prodded the elephant in his courtroom - the issue of whether a defendant could stand trial and give evidence while fully covered in a shroud that exposed only her eyes.

The practical compromise that he came up with – she can be veiled during the trial, but must uncover her face to give evidence, although she can do so behind a screen shielding her from public view – has probably pleased no one much.

Those who feel that wearing a niqab is not a religious requirement, but an abhorrent oppression of women and an affront to democratic society, will feel he has pandered too much to political correctness and should have demanded that the defendant’s face is uncovered throughout the whole trial so that the jury is able to assess her demeanour.

As an aside, I’m not sure I buy the argument that you can’t assess a person’s demeanour unless you can see them. An irate radio presenter challenged me on the issue on his drive time show last week – neither I nor his listeners could see his eyes, but no one listening would have been left unaware of his demeanour and seeing him would not have added to my understanding of his stance.

And as some have commented on Gazette online – other defendants would not be able to wear a disguise in court, or sport a balaclava or motorcycle helmet, so why should this defendant be any different?

Some will feel the defendant’s right to express her religion and her dignity have been affronted by the demand that she uncover. They believe the judge has unfairly discriminated against her, in a way that may cause her injustice – in that if she refuses to remove her veil she will not be permitted to give evidence in her own defence.

I’m not going to revisit his reasoning here, but he described his solution as the ‘least restrictive approach’, consistent with the necessity of enabling the court to conduct proceedings fairly and effectively in the interests of all parties.

From the judgment, it is clear that Murphy, though garbed in his judicial robes and horsehair wig, felt more a bit exposed and a little disgruntled that it had been left to him to tackle the ‘elephant in the room’.

He criticised the paucity of the guidance given to judges on how to deal with such matters. Leaving the issue alone, as a matter of ‘judge craft’, as the judicial guidance the Bench Book does, had resulted in ‘widespread anxiety and uncertainty and a reluctance to address the issue’.

In his judgment, Murphy hoped that parliament or a higher court will review the issue ‘sooner rather than later’ and provide a ‘definitive statement of law’. The solution he arrived seems the certain way to make this happen. The elephant is the courtroom is stomping loudly around and can be ignored no longer.

Catherine Baksi is a Gazette reporter

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