Veils in court: proposed consultation on judicial guidance

The new Lord Chief Justice, Lord Thomas of Cwmgiedd, today gave a press conference at which he announced that he intends to launch a consultation on whether or not veils may be worn in court. The Guardian quoted him as telling reporters that:

“The best way for dealing with this matter is to make a practice direction … The basic principle will be that it must be for the judge in any case to make his own or her own decision but we will give clear guidance. We hope to be able to issue a draft for consultation in the very near future … I regard it as the responsibility of the senior judiciary to give guidance and it will be guidance that is not merely, ‘Well, it all depends,’ but starting from a clear starting point giving fairly reasonable guidance as to what should happen. What we intend to do is put that out to public consultation and then finalise it”.

The issue surfaced most recently when a woman defendant, D, appeared veiled in Blackfriars Crown Court and refused to reveal her face on the grounds that, as a Muslim, she could not appear unveiled in the presence of men who were not part of her immediate family. As we reported at the time, after considering the matter HHJ Peter Murphy gave a series of directions in D(R), R v [2013] EW Misc 13 (CC): he decided that the defendant would be free to wear the niqab during her trial but that she might not wear it while giving evidence. He regarded the issue as a matter of law rather than of general guidance; and while he accepted the sincerity of D’s belief about veiling in public (para 14) he regarded it as essential to the proper working of an adversarial trial that the judge, jury, witnesses and defendant should be able to see each other at all times during the proceedings, partly for identification but also to assess the credibility of witnesses (para 30).

We headlined our earlier post Niqabs and burqas: the UK’s pop-up debate, in response to Home Office minister Jeremy Browne’s call for a “national debate” about whether the secular law should prevent young women from having the veil “imposed” on them; and we suggested that a debate on such a sensitive subject for which no-one was prepared was not, perhaps, a sensible way in which to proceed. In the event, the debate seems not to have materialised: perhaps the Lord Chief Justice’s consultation will provide a vehicle for a rational and dispassionate discussion of the issue. Perhaps…