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The Queen -v- D (R) [2013]

The Queen -v- D (R) [2013]

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Published by Fuzzy_Wood_Person
Law report concerning the wearing of a veil covering the face in court during proceedings, in the Blackfriars Crown Court in London
Law report concerning the wearing of a veil covering the face in court during proceedings, in the Blackfriars Crown Court in London

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Categories:Types, Business/Law
Published by: Fuzzy_Wood_Person on Oct 14, 2013
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04/28/2014

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THE CROWN COURT AT BLACKFRIARSTHE QUEENv.D (R)JUDGMENT OF H.H. JUDGE PETER MURPHY IN RELATION TO WEARINGOF NIQAAB BY DEFENDANT DURING PROCEEDINGS IN CROWN COURTCounsel for the Prosecution: Ms. Kate WilkinsonCounsel for the Defence: Ms. Susan Meek Introduction1. The defendant, to whom I shall refer in this judgment as D, is a woman who has been charged on indictment at this court with a single count of witness intimidation.The facts alleged are not relevant for the purposes of this judgment, except for the factthat the defendant is alleged to have committed the offence while wearing the burq’aand niqaab,
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and no issue of visual identification will arise at trial.2. The question now before me was initially raised by the Court of its own motion,and not by the prosecution or the defence. The case was listed before me for a pleaand case management hearing on 22 August 2013. A person, who both the prosecution and the defence agreed was D, appeared and surrendered to the dock. Dwas wearing a burq’a and niqaab. (I understand that burq’a is the term applied to the black loose shroud which covers the head and body, and that niqaab is the termapplied to the black veil which covers the entire face, except for the eyes. In case myunderstanding is wrong, and so that there is no doubt, my concern is with the coveringof the face, by whatever means that may be achieved. I am not concerned with any
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As frequently happens with words of foreign origin, various spellings are found in different sources.For simplicity, I have adopted uniform spellings of niqaab and burq’a.
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other aspect of D’s dress or appearance.) When I refer to the niqaab in this judgement,I refer to a covering of the face.3. Through her counsel, I conveyed to D the court’s request that she reveal her face(but no other part of her body) for the purpose of identification. After conferring withD, counsel said that D declined to comply with my request because her Muslim faithrequires that she may not reveal her face in the presence of men. It may be that thisrefers to men who are not members of her immediate family.4. I decided to take time to consider the matter. I adjourned the hearing until 12September 2013, to be listed before me for further proceedings including legalargument, and extended the defendant’s bail until that date. It became clear to methat, because the issue of the niqaab was bound to recur during the proceedings, itwould be desirable to deal with it on a broader basis during the plea and casemanagement hearing. I asked counsel to submit skeleton arguments dealing with theway in which the Court should approach the matter. I received skeleton argumentsfrom both parties, and heard oral argument on the adjourned date. I am extremelygrateful to both counsel for their clear, well-judged, and helpful submissions. I alsoreceived an expert report from Professor Susan Edwards, an expert witness on Gender and Islamic Dress, which was prepared on behalf of D.5. At the hearing on 12 September 2013, I allowed the defendant to be identified bymeans of evidence from P.C. Hughes, a female police officer who knows D, and whoobserved D in private without her niqaab during a short adjournment for that purpose,and was able to say that she was certain that the person before the Court was in factD. D was arraigned and pleaded not guilty to the sole count of the indictment. Iconducted a general plea and case management hearing and heard argument aboutwhat further directions, if any, should be given about the wearing of the niqaab duringthe proceedings. Having heard argument, I adjourned the case further until 16September 2013, to prepare this judgment.2
 
 
Question to be Decided 6. The question is to what extent D is entitled to wear the niqaab during proceedingsagainst her in the Crown Court. The plea and case management hearing is theoccasion on which the judge should give directions for the proper management of thecase, and this is, therefore, the proper occasion to consider the question of the niqaabgenerally in relation to the proceedings. No purpose would be served by re-openingthe question every time the defendant comes before the Court for another appearanceor hearing. Moreover, it is right that D should be aware of the directions given as soonas possible, so that she has ample time to consider her position further and take adviceas needed. Thus, the purpose of this judgment is essentially to give further directionsfor the conduct of the proceedings.7. I make clear at the outset that I address only the case of a defendant before theCrown Court. I do not intend to address the practice of Courts other than the CrownCourt, especially that of civil or family Courts, in which other considerations maycome into play. The practice of these courts differs greatly from that of the CrownCourt. Cases are almost always heard by a judge sitting without a jury. In some proceedings in family courts, the procedure may be less adversarial and may leanmore towards an inquisitorial approach. Ms. Wilkinson referred me to a decision of Macur J in the Family Division (
SL v. MJ 
[2006] EWHC 3743 (Fam)) in which aninformal compromise was arrived at. I will refer to it again later. The rules of evidence applicable to criminal trials are not applied, or are not applied as strictly, incivil and family cases and are subject to an ultimate judicial discretion. Mostimportantly, the panoply of procedural and evidential structures which are necessarywhen a person is accused of a criminal offence can be dispensed with.8. Nor do I address the situation in which a woman wearing a niqaab attends theCrown Court solely as a witness, or as a juror, or appears as an advocate. I accept thatthere are different considerations in these instances. For example, the public has astrong interest in encouraging women who may be the victims of crime from comingforward, without the fear that the court process may compromise their religious beliefs and practices. On the other hand, the rights of the defendant in any resultingcriminal proceedings must also be protected. So there is a potential for a challenging3

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