A Muslim defendant who refuses to remove a full face veil will not be permitted to give evidence, a judge has ruled today, but called for parliament or higher courts to rule definitively on the issue.

Judge Peter Murphy ruled that a Muslim woman will be allowed to wear a niqaab – a shroud leaving only eyes visible – during her criminal trial, but told she must remove it while giving evidence.

Murphy made the ruling at Blackfriars Crown Court, following his decision last Friday to allow the defendant to enter a plea while fully veiled, after being identified in private by a female police officer.

He directed that the defendant may not give evidence wearing the niqaab, but said she will be able to give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury and counsel, or through a live TV link.

The judge prohibited any drawing, sketch or image of the defendant while her face is uncovered from being made in court, disseminated or published outside court.

He said that where a defendant refuses to remove the niqaab, a judge should not allow her to give evidence.

Murphy said the solution was the ‘least restrictive approach’ consistent with the necessity of enabling the court to conduct proceedings fairly and effectively in the interests of all parties.

The 22-year-old London woman, known as D, denies a charge of witness intimidation. She had claimed that her religious beliefs dictated that she could not remove her niqaab in front of men.

Her barrister Susan Meek argued that it would be a breach of her rights under article 9 of the European Convention of Human Rights, which provides for freedom of thought, conscience and religion. Meek argued that the jury would be able to assess her demeanor by the way her head, body and eyes moved.

In a 36-page judgment, the judge said it is a ‘pivotal requirement’ that the jury must be able to see the witness. Being able to judge their demeanour, he said, is a ‘fundamental and necessary attribute of the adversarial trial’.

‘If it is taken away, the ability of the jury to return a true verdict in accordance with the evidence is necessarily compromised,’ he said

Weighing the competing interests, he said: ‘The court must balance the right to manifestation of religion against the interests of justice in securing a fair trail for all the participants and the strong public interest in the proper administration of criminal justice.’

The judge accepted the sincerity of D’s belief that she should wear a niqaab and said the court recognises that all those who live in England and Wales enjoy freedom of conscience, religion and religious expression and has a ‘proud record’ of upholding religious freedoms.

But he said those who live in the jurisdiction have ‘an obligation to respect its institutions, including the courts and to obey the law, which included following the rules and practice of the court’.

Murphy said it is essential to the proper working of an adversarial trial that all involved with the trial – judge, jury, witnesses and defendant – be able to see and identify each other at all times during the proceedings and it is essential that the court knows the identity of the defendant.

If a fair trail is to take place, he said the jury must be able to assess the credibility of the witnesses.

He highlighted that is it not only the defendant’s rights that are engaged, but said the victim’s rights and freedoms also had to be considered, as they are entitled to a fair determination of the allegation; as well as the jurors who he said have taken an ‘onerous oath or affirmation’ to faithfully try the defendant and give a true verdict according to the evidence.

‘It is the task of the court to provide conditions under which they can discharge that important function,’ said the judge.

In addition, he said the public has a ‘strong interest’ in criminal proceedings being conducted fairly and effectively.

Murphy said the ‘adversarial trail demands full openness and communication’, and concluded that he is ‘firmly convinced’ that the wearing of the niqaab ‘necessarily hinders that openness and communication’.

He accepted that a rule prohibiting the defendant wearing a niqaab in court would cause her ‘some degree of discomfort’, but he said the court could mitigate that through reporting restrictions or special measures.

Murphy said it was ‘unfair’ to ask a witness to give evidence against a defendant whom he cannot see or to ask a juror to pass judgment on a person they cannot see.

He said that to deprive the jury of ‘an essential tool’ in evaluating the evidence given by a person, because they cannot observe their demeanour, drives a ‘coach and horses’ through the way justice is administered.

At best, he said, it requires a ‘compromise of the quality of criminal justice delivered through the trial process’ and at worst it may mean the jury is ‘impotent’ to deliver a fair and just outcome.

However, he was mindful that a rule prohibiting defendants from giving evidence wearing a niqaab would inhibit some from giving evidence. He stressed that the right to give evidence must be protected, but said it involves a ‘corresponding duty to submit that evidence to the scrutiny of the jury’.

Murphy stressed that a defendant adopting a particular religious practice could not oblige the court to set aside its ‘established procedure’ to accommodate that practice. ‘That would be to privilege religious practice in a discriminatory way and would adversely affect the administration of justice.’ 

He insisted: ‘The court must be entitled to place some restriction on a person’s right to manifest their religious beliefs if the unrestrained exercise of that right interferes to an unacceptable degree with the court’s ability to conduct a trial which is fair to all parties.’

Murphy said the issues of whether a defendant could wear a niqaab in court had ‘become the elephant in the room’.

He said he hoped that parliament of a higher court would review the issue ‘sooner rather than later’ and provide a ‘definitive statement of law’.

The full judgment is here.