Niqab-wearing in court is a small step too far
From Brother Ivo:
Today a judge ruled on an individual's request to give her evidence in court fully veiled, in accordance with her reading of Islamic requirements to dress modestly. Whatever his decision and reasoning, it was always unlikely to be the last word on the subject: a variety of politicians and commentators have already begun to grapple with a problem that will simply not go away.
What is the proper balance to be struck between religious rights and the requirements to comply with secular values and institutions?
Many approach such questions, especially when they touch on legal matters, as black and white issues. It is easy for outsiders to think that law turns upon what is legislated, written or defined. Yet these matters are usually more subtle than that.
Law can be binary. Do you have a certificate of insurance for the car you are driving? That admits no equivocation, though plainly the degree of culpability may need to be judged when the sentence comes to be assessed. If you had been told your cheque had been cashed and a clerical error by your insurer prevented the certificate being issued, you may expect greater leniency.
Other matters are far less clear. A killing may be murder, self defence, accidental, or lack criminal culpability through automatism.
Legal principles are often best considered less as black-and-white 'where's-the-line?'-type questions but rather as those having 'weight'. In some circumstances, a principle may be weightier, but a group of other considerations may well outweigh it in another context. Thus it is perfectly lawful to throw a javelin in a sports field - but not in a shopping centre.
In all cases where context is critical, we balance a range of considerations, and our old Common Law had regular recourse to a fictional hero of English Jurisprudence - 'The Reasonable Man'.
For the avoidance of doubt, Brother Ivo happily confirms that 'The Reasonable Woman' is no less sagacious, but the language derives from a particular time and culture, and rather than clutter the narrative, he asks readers' indulgence for his using the term throughout.
The Reasonable Man is a thoroughly decent fellow: he is not extreme in his opinions; he is neither technically specialised nor adept in any particular field, but is also no fool. If you explain even complex things to him he can make a pretty sound judgement on all aspects of life, including complex matters of science, accountancy, culture and religion. He is probably a cultural Anglican, though nobody has thought to ask him. He and his values may well be looked down upon by the self-appointed intelligentsia but, being sensible, he bears this with a degree of equanimity.
It is the innate decency of the Reasonable Man that has made this country the first port of call for many immigrants. Brother Ivo therefore tentatively asserts that this paragon of civic virtue is an Englishman (or, in this jurisdictional context, sometimes Welsh). Other Reasonable Men are to be found in Scotland and Northern Ireland, but we need not digress.
There are many black, brown and white Reasonable Men, for to be one is cultural, not racial. And he may also be of various religions or none.
Our imaginary hero brings common sense to the law and usually makes a very good job of it. It is when he is excluded, and his judgement supplanted by 'Human Rights' interpreted by over-intellectualised lawyers and judges that the cock-ups occur. Unlike them, the Reasonable Man of the Common Law is never absurd.
HH Judge Peter Murphy of the Blackfriars Crown Court has attempted to act in the spirit of the Reasonable Man in the case of the Muslim woman who sought to veil herself during proceedings. In both of the two reported appearances of the defendant, concerning a serious charge of of witness intimidation, the Judge has shown considerable, perhaps excessive, forbearance as this lady's declared beliefs came into conflict with the long-standing value historically attached to open justice.
As a preliminary issue, he allowed the defendant's identification before the Court to be made by a female police custody sergeant. He has now ruled that she may remain veiled, save for when she gives evidence and is cross examined.
That, to Brother Ivo's mind, is a small step too far. It is not only when giving her own evidence that a defendant's demeanour is under observation and judgement. Many a person in civil or criminal cases has revealed their attitudes to be other than they protest when they have been seen by judge or jury to respond to the evidence of others.
If the victim is distressed or fearful, how does the accused respond? Amusement or callousness - and it happens - tells you a lot. By the Judge's last ruling, the jury is being deprived of this wider evidence of demeanour, and the Judge, though doubtless well meaning and trying to be balanced, may have called that wrong. He could have screened the defendant from all save those who need to know. That would have been a better balance.
Psychology and, more importantly, common sense and experience tell us that much communication is non verbal. Is the speaker composed and confident as they speak? Are they blushing, frowning or tense? What do these cues mean in context? We constantly bring such factors into play when asking whether a person is trustworthy and truthful. They are no less important as we see how they respond to their accusers. This evidence is now being denied for a group of persons, and the Reasonable Man might suspiciously wonder who else will call for special treatment.
The debate needs to take place beyond this case, for the ruling is not of binding status.Much of that debate has been predictable, but there are two aspects which Brother Ivo finds compelling.
First, a woman commits no sin within Islam by complying with the laws of the community within which she resides. By asking to remain veiled, she will have registered her faith-compliant view and then acceded to the lawful request of the court to unveil (see Islam Today).
Second, those who take the strictest interpretation of Islamic culture might care to talk to us about the dress code mandated for women when undertaking the holiest of pilgrimages, the Hajj. The website Islamic Insights helpfully offers 'Clothing tips for sisters'. Our Christian nuns will feel some affinity.
Strikingly absent is the full face veil.
The faces of Islamic sisters on the Hajj will be seen by tens of thousands of strange men - some good, some bad, some indifferent. For a serious sober purpose, the veil is put aside. It cannot be regarded as shameful, demeaning or disrespectful for the courts of England and Wales to say that their business of offering justice with integrity is also a serious and sober purpose; indeed, one might think its practicality and need are more pressing.
What need of any man on the Hajj to see the women he cannot see in another context? That is a serious question. Many Muslims have come to this country precisely because of the benefits developed by the common sense and human decency of that much maligned 'Middle Englander', who is also the Reasonable Man.
Here you will not be whipped, stoned or beheaded. If threatened by your own community or outsiders, the Reasonable Man will stand up for you. He may not agree with you, but he cannot abide a bully. His values are honest and well motivated.
He wants the guilty punished, but places a high value on justice being done. He has embodied that idea of Justice above the Central Criminal Court in a statue of Blind Justice, but that symbolises impartiality, not blindness to the evidence. If you really want that, then you may have to seek it elsewhere.
Brother Ivo is the Patron Saint of lawyers