Last Thursday Rizlaine Boular, Mina Dich and Khawla Barghouthi appeared before Westminster magistrates’ court in London in connection with charges of conspiracy and preparing terrorist acts.
Ms Boular appeared in court wearing a niqab (a face covering with eyes uncovered), Ms Dich, a veil with an area of mesh completely covering the eyes, and Ms Barghouthi, a hijab. Tomorrow, they appear at a hearing in the Old Bailey.
Jonathan Raban, writing in 1979, saw such “strange sights” only up the Edgware Road.
Not so today! Niqabs are a feature of city life and courtroom drama, presenting challenges to magistrates and jurors who rely on orality and the visibility of witnesses’ nonverbal cues, facial gestures and bodily demeanour in finding and inferring truth.
Demeanour can, of course, contradict or confirm the evidence, and cast doubt upon or compound guilt. Defence counsel advise clients to appeal to jurors by satisfying the appearance of innocence. The famous advocate Edward Marshall Hall used not only his passion and gift for oratory when defending Marie Hermann, a prostitute charged with murdering a client, but also used her pitiful demeanour when he said: “Look at her, members of the jury. God never gave her a chance, won’t you?” He secured her acquittal. Victor Durand, QC, once told a client from the East End charged with theft-related offences to remove his gold rings before the trial.
Facial expression is an important indicator and signifier for all the passions: lies, deceit, shame, guilt. Saint Jerome said that the face is the mirror of the mind. Of course, the face as an accurate barometer is not conclusive, since defendants can “smile, and smile, and be a villain”. Lie to Me, the American crime drama, derived its storylines from the well-established psychological theory that microfacial gestures can help to reveal the truth nonverbally.
And so in a forum where truth is on trial, whether US senate hearings on Russian interference in the 2016 US election or criminal proceedings in the UK courts, the face is the barometer and bears the burden. The right to cover the face is contested. Human rights and religious freedoms are engaged, where Articles 10 (freedom of expression), 9 (right to religious belief), 8 (right to family and personal life), and 14 (right to be free from discrimination) are pitched against Article 6, the right to a fair trial. Which rights trump?
In France the wearing of the niqab in public, from streets to courtrooms, is a criminal offence (unsuccessfully challenged in the case of SAS v France 2015).
In the UK, it is in the case of The Queen v DR 2013 that the definitive ruling is found. Judge Peter Murphy, presented with a defendant who wished to cover her face throughout the whole of the proceedings, weighed up the competing rights and ruled that during examination-in-chief and cross examination her face should be uncovered.
Beverley McLachlin, the Chief Justice of Canada, in a landmark ruling in the case of R v NS 2012 said: “Where evidence is uncontested, credibility assessment and cross-examination are not in issue . . . being unable to see the witness’s face will not impinge on trial fairness” and: “A niqab-wearing witness’s eyes, tone of voice and cadence of speech remain available to the cross-examiner and trier of fact.”
Both judges ruled that the matter should be left to the trial judge in accordance with the particular circumstances of the case.
In the present case against Ms Boular, Ms Dich and Ms Barghouthi, Judge Emma Arbuthnot asked Ms Boular and Ms Dich: “Would you mind removing at least part of your veils so I can see part of your eyes?”
Seeing part of the eyes is not really going to be good enough to allow for testing truth in a trial. It will be for the trial judge, after hearing submissions, to decide on how open justice must be served and how truth can best be uncovered.