By LSS member Daniel Anderson *
Lord Neuberger, President of the Supreme Court, recently made a speech to the Criminal Justice Alliance on the topic of “Fairness in the courts”. Putting it mildly, this speech attracted widespread media attention: see here, here and here. And such attention resulted in the Supreme Court’s Press Office going into overdrive.
What caused the widespread media attention was that Lord Neuberger appeared to suggest that Muslim women should, in the interests of ‘fairness’, be allowed to wear a full face veil when giving evidence in court.
Here is what Lord Neuberger said in his speech (at paragraph 22):
“Judges have to show, and have to be seen to show, respect to everybody equally, and that requires an understanding of different cultural and social habits. It is necessary to have some understanding as to how people from different cultural, social, religious or other backgrounds think and behave and how they expect others to behave. Well known examples include how some religions consider it inappropriate to take the oath, how some people consider it rude to look other people in the eye, how some women find it inappropriate to appear in public with their face uncovered, and how some people deem it inappropriate to confront others or to be confronted – for instance with an outright denial.”
What led Lord Neuberger to make this speech in the first place? I think it is the understandable concern that fairness demands that all people coming before a court should be equal before it. And it is likely that this concern, at least partly, is being driven by the stark reality that more and more disadvantaged sections of society are coming before the courts without the assistance of a lawyer, due to the widespread cuts to legal aid. The rise in the numbers of litigants in person does raise serious issues which the legal profession and Parliament desperately need to address, but which are obviously beyond the scope of this post.
However, in relation to the specific issue of whether Muslim women should be permitted to wear a full face veil when giving evidence in court, I think that Lord Neuberger appears to have confused the issue of equality with exceptionalism.
In reality, permitting Muslim women to wear the full face veil whilst giving evidence in court has nothing to do with fairness. Or, to put it another way, it has nothing to do with ensuring that Muslim women are equal before the courts like everyone else –which they should be and which they are. Instead, permitting Muslim women to wear a full face veil whilst giving evidence in court has everything to do with carving out a limited exception to the general legal principle that fairness demands all people show their face whilst giving evidence.
Why does fairness demand that everyone show their face when giving evidence in court? Quite simply, because having someone show their face when giving evidence allows the opposing party the opportunity to properly test the evidence against them. And it naturally follows that ensuring all parties show their face when giving evidence enables courts to reach the correct decisions by being able to establish the truth.
Fortunately, not all members of the Supreme Court display the same confusion between equality and exceptionalism as Lord Neuberger appears to. In fact, the issue of whether Muslim women should be permitted to wear the full face veil in court when giving evidence was recently dealt with succinctly by the Deputy President of the Supreme Court, Lady Hale.
At the back end of 2014 Lady Hale said:
“We should devise ways of making it possible and insisting people show their full face when it is necessary. There must come a point where we can insist. We don’t object to allowing people to do things for sincerely held religious reasons if they don’t do any harm. If it does harm, we have to be a bit tougher.”
And, commenting on a case in which she told a woman to show her face when giving evidence, she said:
“In that particular case it really was very obvious both that she loved her children fantastically and that there were occasions when she was lying. I don’t think it would have been as obvious if I’d only been able to see her eyes.”
Permitting Muslim women to wear full face veils when giving evidence in court would actually undermine fairness in our legal system. This is because a category of person – in this case Muslim women (or those deemed as such) – would be considered exempt from the standards expected from everyone else. This is exceptionalism and not equality. And this exceptionalism would invariably harm our legal system because the court would be reaching decisions by treating a category of people differently.
We must insist that everyone show their face when giving evidence in court. Fairness demands it.
This is not to deny that courts, in strictly defined special circumstances, should not protect a person’s anonymity when cases are subsequently reported. This does happen – usually where a party is particularly vulnerable (for example cases involving children or the mentally ill), or where the interests of national security demand it. But anonymity is given by the court granting an order that it be strictly preserved and that failure to comply be dealt with by contempt of court (i.e. possible imprisonment). And questions of anonymity are obviously very different to refusing to show your face when giving evidence in court.
* Daniel Anderson was an LSS member from Oct 2014 to Jul 2015
Views expressed are not necessarily those of the LSS
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