Niqabs in court and tribunal proceedings: the story continues

A 15-year-old Afghan arrived in the United Kingdom in January 2009, claimed asylum and was granted discretionary limited leave to enter. His application for asylum was subsequently refused and his appeal dismissed. In May 2012 he was convicted of assaulting his wife, a British citizen, occasioning actual bodily harm: he was sentenced to 21 months detention and in June 2013, the Secretary of State decided to deport him. He appealed and in August 2013 the First-tier Tribunal dismissed his appeal on all grounds. He appealed further to the Upper Tribunal (Immigration and Asylum Chamber) and the most recent judgment is reported as  AAN (Veil) Afghanistan [2014] UKUT 102 (IAC).

So what has any of this got to do with “law and religion”? Read on…

The cornerstone of AN’s case was that he was at risk should he be returned as a result of the marriage of his older sister in Afghanistan Before the FtT, evidence had been given by two witnesses: AN’s younger sister, “AE”, and her spouse, “JE”. AE appeared in a niqab veil and the FtT expressed doubts about AE’s identity:

“She appeared before us fully veiled, but asserted that she was the person whose photograph appears in [a visa document] …. Her evidence is that she is also the person appearing in the Marriage Certificate….. We did not see the original of either document, but, because the witness was veiled, we cannot make any judgment as to whether either of those photographs bear[sic] any resemblance to the person in front of us” [quoted at para 5]

In paragraph 28 of its determination the FtT concluded that “the appellant has not proved, even to the lower standard, that the witness A is one and the same person as his younger sister” and rejected his asylum, human rights and humanitarian protection claims in their entirety [para 5].

The Upper Tribunal pointed out that though AE’s evidence was, self-evidently, of substantial importance to AN’s case, the FtT made no considered assessment of her evidence:

“While the FtT made clear adverse credibility findings in relation to the appellant, it failed to make any such findings as regards AE and JE, who were important witnesses. Furthermore, the FtT engaged in an exercise of attempting to compare AE’s veiled visage with two photographic images. We consider that there are combined elements of insufficient findings and inadequate reasoning in paragraphs [25] – [28] of the Determination, which contain key passages assembled under the heading “Our Reasons and Decision”. These failings per se vitiate the Determination of the FtT” [para 6].

Moreover:

“(a) At the hearing, the FtT did not express any concern about the veiled attire of the witness. In particular, there was no hint that this presentation might influence the FtT’s assessment of the evidence of this witness and its ensuing findings.

(b) The FtT made no enquiries of the Appellant’s counsel or the witness about the issue of attire.

(c) In particular, no attempt was made to establish whether the witness might testify without her veil. Nor was any consideration given to the adoption of a mechanism such as the witness removing her veil, partially or fully, in appropriate conditions, or permitting her to be screened in some way or receiving her evidence before a limited audience” [para 7].

The Upper Tribunal concluded that those failures “rendered the hearing before the FtT procedurally unfair” [para 8]. Moreover, the UT rejected the argument that, viewing the Determination as a whole, the procedural irregularities were insufficient to give rise to a successful appeal as they made no real difference to the outcome, adopting the view of Bingham LJ in R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] WL 753309 at 16 that the test was whether the first instance decision might have been different had the irregularity concerned been avoided [para 9].

In November 2006 the President of the Asylum and Immigration Tribunal, Hodge J, had given guidance was on the wearing of a veil by a party’s representative as follows:

“Immigration Judges must exercise discretion on a case by case basis where a representative wishes to wear a veil. The representative in the recent case has appeared veiled previously at AIT hearings without difficulties. It is important to be sensitive in such cases. The presumption is that if a representative before an AIT wishes to wear a veil, has the agreement of his or her client and can be heard reasonably clearly by all parties to the proceedings, then the representative should be allowed to do so.”

The UT noted that “the sentiments expressed in this latter passage are clearly capable of extending to veiled parties and witnesses” [para 10].

Similarly, the Equal Treatment Advisory Committee of the Judicial Studies Board had issued guidance in April 2007 which the Chairman of the Committee, Mrs Justice Cox, had summarised as follows:

“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 Niqaab 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 Niqaab 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” [quoted at para 11].

The UT also noted the accommodation made by Macur J for a niqab-wearing petitioner in SL v MJ [2006] EWHC 3743 (Fam), the recent ruling of HHJ Peter Murphy in D(R), R v [2013] EW Misc 13 (CC) and the fact that Article 6 ECHR recognises explicitly the permissibility of some encroachment on a fully public hearing “… to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice”.

In conclusion:

“In an increasingly multi-ethnical [sic] and culturally diverse society, we would emphasise that issues concerning attire and symbols motivated by religious belief and conviction must be handled by all judicial bodies with great tact and sensitivity. This will serve the twin goals of promoting fairness and avoiding insult or offence. The exercise to be carried out will not infrequently involve the striking of delicate balances. Tribunals should be considerate and respectful in their approach. They should also be resourceful and imaginative in their quest to explore and discover solutions. Simple measures such as limited screening or minimising the courtroom audience – which could extend to briefly excluding the Appellant, with consent – should be considered. Evidence by video link, while another possible compromise, should not be adopted as a solution without first considering all relevant practicalities and the factor of delay. Tribunals should be particularly careful to point out, in cases where it is appropriate to do so, that the maintenance of attire of this kind might impair the panel’s ability to evaluate the reliability and credibility of the evidence of the party or witness concerned and could, in consequence, have adverse consequences for the appellant. Where issues of this kind arise, a Tribunal’s experience, expertise, common sense, pragmatism and sense of fairness will be invaluable tools” [para 20].

The UT remitted the case to a differently-constituted FtT for rehearing with no findings of fact preserved.

Comment: In an otherwise fairly straight piece of reporting, the Daily Mail quoted Dr David Green, director of the Civitas think-tank, to the effect that “There seems to be a worrying trend towards allowing people to wear the veil in court, which is not upheld by any human rights law”. His view of Article 9 ECHR is obviously very different from mine.

Frank Cranmer

13 thoughts on “Niqabs in court and tribunal proceedings: the story continues

  1. Pingback: Legal Cheek » Morning round-up: Tuesday 18 February

  2. Yes, it is a worrying trend to claim that women must wear and only be seen covered by a veil, and although (now) seen and used as a cultural shibboleth, there is nothing in any major religion that requires a veil of any particular kind. Let alone human rights law. This shibboleth now has also a major political use. Indeed one reasonably argue that the argument is primarily a political one

    • No: there’s nothing in human rights law that requires a woman to wear a veil: obviously not. There is, however, Article 9 ECHR, which guarantees the right “to manifest one’s religion or beliefs … subject only to such limitations as are prescribed by law and are necessary in a democratic society…”. The freedom to wear a niqab (subject only to such limitations as are prescribed by law and are necessary in a democratic society) is part of that right to manifest.

      Whether or not “there is nothing in any major religion that requires a veil of any particular kind” I do not know: I haven’t studied the dress prescriptions of all the major religions.

  3. It’s pretty obvious that in an adversarial system such as ours allowing people to completely cover their whole body minus their eyes and thus rendering all identification impossible and cross-examination mostly useless, is not sensible. If a person’s religion is so absurd that it doesn’t recognise that in certain cases exceptions must be made for practical and pragmatic reasons in things which aren’t in and of themselves always wrong, that’s their problem.

  4. Why didn’t the FtT adopt the standard approach for identifying this kind of witness and have a female officer of the court examine under the veil and then confirm on oath that it was in fact the witness?

  5. 18 February 2014

    Dear Mr Cranmer

    I am thankful to you for your article and wish to know precisely what is and is not allowed by the Crown Prosecution can be allowed to be worn.

    In effect, this is the old Sumptuary Laws where people were only permitted to wear specific clothing according to their level in society.

    Religious sensibilities are overlain over everything and rightly so. For a person’s beliefs define them.

    The issue of Justice is that Justice is Blind. Look at the statue – the Old Bailey has a blindfolded statue.

    So, maybe what should happen in courts, is for all witnesses to be hidden from view so only their voices can be heard.

    But, then, of course, there could be bias against a person’s dialect or way they speak.

    So, perhaps everything should be done by using a virtual avatar. And to anonymise the voice production so that race, colour, creed cannot come into it.

    This would certainly assist people who are deaf or blind to get a fair level playing field.

    The jurors would be unable to assess public reaction from the gallery and concentrate solely on what the prosecution and defence counsel state – again via avatar and anonymised voice.

    Gender could also be removed so that then there will be total equaiity between all the sexes as there are more than two sexes, including transgender. Then there is transsexual. And mosaicism.

    What we need is total neutrality and irrespective of where the person lives, then they can expect total fairness.

    The judges would also be disallowed from “guiding” the jury as this can specifically prevent justice.

    So, get rid of judges altogether and get juries doing all the decisions, guided by nothing more than the truth.

    This might reduce the number of court cases as it will encourage neighbours helping one another to find solutions for all but the most heinous of crimes just as in Saxon days.

    This is a serious suggestion but you might just think I have come out of Alice in Wonderland … well, maybe I have, but there is a serious position here – Justice needs to be seen to be done.

    Thank you very much.

    Yours sincerely,

    Rosemary Cantwell

  6. I suppose that the principal reason for not allowing juries to go it alone is that questions of law sometimes arise during a trial on which the jury is not competent to take a view – so counsel (or sometimes the jurors themselves) ask the judge for a ruling. But another reason is that someone has to control the proceedings. Given that we have adversarial systems in all three jurisdictions, if we didn’t have judges, advocates would constantly lead their witnesses, for a start, and there would be no-one to protect witnesses from bullying by counsel. The jury couldn’t do it for itself.

    If you want to see a quasi-judicial proceeding without benefit of the rules of evidence, go along to Parliament and watch the proceedings in an Opposed Private Bill Committee. In my previous existence I clerked large chunks of the committee on the Crossrail Bill: counsel kept on leading witnesses, telling us what witnesses were going to say and generally behaving as if they were witnesses themselves. Dreadful, in my view – but there wasn’t much we could do to prevent it.

    One thing I’ve never understood, however, is why counsel in England are allowed to make opening speeches. There’s no such nonsense in Scotland, so advocates don’t get the opportunity to pollute the jury’s judgment before they begin leading the evidence.

  7. 20 February 2014

    Dear Mr Cranmer

    I am grateful to you for your explanation as above.

    Rather like Alice in Wonderland, I am thinking of how the judicial systems across the world are varied and different.

    Why is the English judicial system based on the adversarial system? I ask this as I have always believed that Justice is Blind, and that the truth speaks for itself, and that therefore it should not be “clever” lawyers who can convince a judge, and a jury.

    For whilst a judge may “lead” a jury, the jury might not be led, and come to a decision that goes counter to what the judge has directed and clearly wanted the opposite outcome.

    When a person’s liberty depends on the vagaries of the Judge, then surely it must not be adversarial at all, but to find and establish the truth and the full truth.

    I have just been reading the HMIC Report: Stop the Drift 2 – A Continuing Focus on 21st Century Criminal Justice (a joint review by HMIC and HMCPSI)

    I believe that there are issues where full disclosure of full evidence has not been given or has been blocked by the CPS or Police or Judge.

    To me, this is a real concern and has led to “cracked cases”. I note that in June 2012 HHJudge Price lambasted the Crown Prosecution for just such an issue.

    Now that we have so many different judicial systems including Civil and Crown Codes, Courts Martial, Solicitors Regulation Authority, General Medical Council, Nursing Midwifery Council, First Tier Tribunals [Mental Health] and Canon law, as well as Sharia law, I believe that we need to streamline the entire judicial system and make it just one legal system with one code for everyone.

    And hence my return to Saxon laws. Yes, I would not want trial by fire, but I would want to have a crystal clear system where everyone knows what the laws of the land are and what the penalties are for doing such and such.

    Sir Robert Peel reduced the number of offences that were hanging offences.

    I now feel that we are totally moribund with a plethora of laws that people cannot even comprehend as they are so complex and dense. The Companies Act 2006 took years to be enacted in full and it is still open to interpretation.

    I love the United Kingdom but I feel that the legal and judicial systems are now so complex that someone needs to make a unified system for the entire country and embrace Scotland and England and Wales and Northern Ireland into one simplified legal system for everyone irrespective of mental, civil or criminal – just one set of laws for all, and just one set of courts where juries sit on all cases.

    And led by a Judge who would need to be accountable to the public if he or she did not insist on having the truth.

    Again, I suppose I am like the Mock Turtle….

    or is it the Cheshire Cat?

    In all seriousness I believe that we are sleepwalking into a legal quagmire and the Jackson Reforms have led to potential disaster I aver.

    Beware 7 March 2014.

    Thank you so much

    Rosemary Cantwell

  8. Why is the English judicial system based on the adversarial system? Almost certainly for historical reasons – that’s the way it evolved. I agree that there have been situations in which the prosecution has not made full disclosure; and that is clearly worrying.

    I should say that criminal law and procedure is not my specialism: if there’s anything on which I claim to know more than the average person at the bus-stop it’s human rights law/Article 9 ECHR and charity law. I agree with you on the need for simplification: Canada, for example, has a federal Criminal Code in spite of being largely a common law jurisdiction. However, I don’t see how a unified system for the UK would help matters, even if it were constitutionally possible.

    Article XIX of the Union with Scotland Act 1706 provides inter alia:

    “That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom and with the same authority and privileges as before the Union Subject … And that the Court of Justiciary do also after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom and with the same authority and privileges as before the Union Subject nevertheless to such regulations as shall be made by the Parliament of Great Britain and without prejudice of other rights of Justiciary … And that all other Courts now in being within the Kingdom of Scotland do remain but Subject to alterations by the Parliament of Great Britain And that all inferior Courts within the said limits do remain Subordinate as they are now to the supreme Courts of Justice within the same in all time coming And that no Causes in Scotland be cognoscible by the Courts of Chancery Queen’s Bench Common Pleas or any other Court in Westminster Hall and that the said Courts or any other of the like nature after the Union shall have no Power to cognosce review or alter the Acts or Sentences of the Judicatures within Scotland or stop the Execution of the same”.

    In short, Scots law was to continue in effect after the Union – and any attempt to tamper with that would bring howls of justifiable protest from Scots.

    Moreover, if I were charged with a criminal offence of which I was innocent I’d much rather be tried in Scotland than in England. In Scotland there are no opening speeches at the trial, investigations are supervised by the procurator-fiscal and there is (still) a requirement of corroboration in order to secure a conviction. And as to the inquisitorial procedure, would you really prefer to be tried for an alleged criminal office in Italy?

    Nor do I fancy “one set of courts where juries sit on all cases” – do you really want to reintroduce juries in civil cases? First, it’s tough on potential jurors who, after all, have their own lives to lead and, secondly, the issues adjudicated by the civil courts are often horrendously complicated even for specialist lawyers – which is why decisions get overturned on appeal. Read the Court of Appeal and Supreme Court judgments in President of the Methodist Conference v Preston and you’ll see what I mean.

    Equally, I am very doubtful about judges being “accountable to the public”. They have elected judges in some states of the US and, at the lowest level, the standard of some of the US courts is pretty poor. Ultimately, judicial independence is one of the guarantees that, so far as humanly possible, decisions will be made “without fear or favour, affection or ill-will”.

    I don’t think we are going to agree on this!

    • 16 March 2014

      Dear Mr Cranmer

      I am very thankful to you for explaining the different legislatures and I am open to discussion and broaden my mind.

      What I am saying is that it is very difficult to have so many different types of law. How does the “ordinary man or woman on the Clapham Omnibus” fare if he or she does not know even a fraction of the laws that govern our land?

      I feel that the jury system with all its faults would stop perverse judgments by lawyers and judges who have their own views and impose their own “world view” on people.

      That is why I prefer the “demos” over the autocracy of a judge.

      It is better for 99 guilty people to go free than one innocent person to be convicted, in my opinion.

      I suppose also I am of the view that we need to go back to a more simple time when there was a “code” of conduct like, for example, the Judaeo-Christian “10 Commandments”.

      We live in a multi-cultural society in the UK and we have European legislation over-ruling our national legislature, and I really do wonder if we need to have a complete code of laws based entirely on Human Rights.

      What do you think? I am fascinated by our discussion and thank you sincerely.

      Best wishes

      Rosemary Cantwell

  9. 17 March 2014

    Dear Mr Cranmer

    I think you make some very sensible points and yes, I do agree with you in many respects.

    What I am wondering, however, is if there could be a universal code of laws for all humanity per the UN Convention on Human Rights, as it appears to me that we are a very diverse people – a multicultural one with many different beliefs – but with one common set of principles – that of being human beings and what makes us human. Kindness and compassion above all things.

    Religion and creed comes to the same thing. As does being an atheist or a believer in nothing at all. We all owe a responsibility to our neighbour and to ourselves.

    If our guiding principles are do as to others what you would have them do to you, a lot of the cases that come to court whether it be a Tribunal, Magistrates Court, Crown Court, County Court, Military Court, or whatever else it might be, we could have a revolutionary new way of living with our neighbours in harmony. That is my hope. And prayer.

    Thank you so much for your very informative blog and I really do appreciate learning from you – it is good to learn new ideas and be given new information.

    Best wishes

    Rosemary Cantwell

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