New guidance on the wearing of the niqab (the full veil worn by Muslim women) in courts has been published today.
It has been produced by the Equal Treatment Advisory Committee (ETAC) of the Judicial Studies Board (JSB), and the guidance will be published as an addition to the Equal Treatment Bench Book used by judges as a reference manual.
Mrs Justice Cox, Chairman of ETAC said:
“At the heart of our guidance is the principle that each situation should be considered individually in order to find the best solution in each case. We respect the right for Muslim women to choose to wear the niqab as part of their religious beliefs, although the interests of justice remain paramount.
“If a person’s face is almost fully covered a judge may have to consider if any steps are required to ensure effective participation and a fair hearing – both for the woman wearing a niqab and for other parties in the proceedings.
“This is not an issue that lends itself to a prescriptive approach – we have drawn on a wealth of cases that demonstrate that, and we have drawn up guidance for different court personnel and parties.”
The ETAC guidance was already in hand when the Lord Chief Justice, Lord Phillips, requested that the Committee address the issue urgently, following a case at the Asylum and Immigration Tribunal where proceedings were adjourned as the judge said he was unable to hear a veiled advocate clearly.
The new guidance follows detailed consideration of the issues from a Committee that has a standing role in providing advice on religious and cultural issues to the judiciary. Whilst it has been published now to ensure that judicial office holders can draw on guidance immediately, the JSB has stressed that it is very interested in receiving comments on the detail of the guidance – which (as with all such guidance) is subject to review.
Summary of the guidance for various court practitioners/parties
Jurors – If a challenge is presented to a woman wearing a full veil serving on a jury, a judge may wish to consider excusing her, on the proviso that she may serve on another jury where no challenge is made. Much will depend on the views of the parties, but the judge must be satisfied there is a genuine basis for such a challenge.
Victims and complainants – It is clearly important that people are not deterred from seeking justice or not getting a fair hearing by a sense that they are excluded from court. It may be possible for evidence to be given wearing a veil, or for the woman to agree to remove it while giving evidence. Other measures are available to the court, such as screens, video-links, clearing the public gallery. A short adjournment may be provided to enable the woman to seek guidance. What is clear is that a decision on these matters should ideally be reached after discussion at a preliminary hearing.
Witnesses and defendants – Similarly a sensitive request to remove a veil may be appropriate, but should follow careful thought as attending court itself is a daunting prospect for witnesses, and may affect the quality of evidence given. Whilst it may be more difficult in some cases to assess the evidence of a woman wearing a niqab, the experiences of judges in other cases have shown that it is possible to do so. Where identification is an issue, it must be dealt with appropriately and may require the witness to make a choice between showing her face or not giving evidence.
Advocates – The starting point should be that an advocate wearing a full veil should be entitled to appear when wearing it. The interests of justice will be paramount and the judge may need to consider – in the particular circumstances which arise, if the interests of justice are being impeded or not by the fact the advocate’s face cannot be seen, or they cannot be heard clearly.
Notes for Editors
ETAC’s purpose is to assist and support all judges and judicial office holders to fulfil the obligations of the judicial oath by being equipped to recognise the many ways in which social, cultural and other differences may have a bearing on the conduct of cases and the wider judicial role. The Committee will do this by:
- Ensuring the integration of fair treatment and diversity issues into relevant aspects of JSB training.
- Providing and contributing to training and materials, including the Equal Treatment Bench Book, to support all judges and judicial office holders in ensuring fair treatment and increasing their knowledge and understanding of their local communities.
- Acting as a referral point for judiciary inquiries or concerns within its terms of reference.
- Advising the Judicial Studies Board and Committees on all issues within its terms of reference.