Lord Neuberger says veils in criminal trials should be banned. Is he right?
Law student favourite Lord Neuberger has waded into the controversial debate on veils in criminal trials, calling for them to be banned when credibility is at stake.
The President of the Supreme Court told The Times that the jury trial system hinges on jurors being able to weigh up a witness’s evidence. Being able to see a woman’s face is a key factor in this. As his Lordship puts it:
I can see serious difficulties with the idea that a witness should have her head covered where evidence is contested. If there is any question of credibility, it should be uncovered.
Controversy about veils in the courtroom is not new. It has prompted strong — and often very polarising — comments from all sides of the debate over the past few years.
In 2013, top legal commentator Joshua Rozenberg wrote that a defendant should, by law, have to show her face during her trial, and that failure to do so “should be treated as contempt of court.” Author Ian Leslie, writing in the New Statesman, took an opposing view, suggesting that all witnesses should be made to wear a veil or, at least, that we should stop pretending “that banning the veil in court will lead to better justice.”
Seemingly making a bid for the middle ground between Rozenberg and Leslie, Neuberger’s latest remarks contradict previous reports that he had given the thumbs up to defendants, victims and witnesses wearing veils, because it is important for the judiciary to understand the “different cultural and social habits” of those appearing in court.
Quick to explain this apparent confusion, Britain’s most senior judge explained:
What I was saying that — and I don’t think many would disagree — was that witnesses and parties in court may have beliefs, convictions, which are not those that most people have or the judge is familiar with and the judge should be sympathetic and understanding of those factors, such as a woman not used to appearing with her face uncovered.
Accordingly — and somewhat at odds with the way The Times (£) covered the story — Neuberger says there might be occasions where the judge allows a woman to keep her veil. For example, because her evidence was uncontested and wouldn’t influence the jury’s view.
But his headline sentiment is that veils ought not to be worn in court. It’s a view that will no doubt be met with both intense support and extreme opposition.
From an advocate’s perspective, at least, there is force behind the top judge’s comments. Max Hardy — 9 Bedford Row barrister – echoed Neuberger when he told us:
A veiled face is a hidden face and as part of the credibility assessment involves interpretation of facial reaction then obviously a veiled witness can defeat that purpose of the trial process. To that extent I feel, although this is only my opinion, that the interests of justice dictate that a witness’ face must be visible.
Anonymous criminal practitioner and blogger the Secret Barrister agrees. Speaking to Legal Cheek, he said:
A jury should be entitled to not only hear the evidence but observe the manner of the witness who gives it, which is obviously not possible if the witness is wearing a face covering. The number of witnesses whose facial expressions under cross-examination give them away as lying cads and bounders of the highest order is too great to specify. A witness shouldn’t be able to escape scrutiny by hiding behind appeals to scripture.
On the other side of the fence sits legal commentator Carl Gardner, who took to Twitter last week to blast the Oxford-educated judge:
I think Neuberger's got this veil thing completely wrong. Here's what I wrote about this two years ago: https://t.co/jbfXuzTAkt
— Carl Gardner (@carlgardner) January 30, 2016
When Legal Cheek got in touch with Gardner to hear more, he explained:
I think Lord Neuberger’s approach to this is completely wrong, because he’s looking at it the wrong way round.
It’s the defendant who has the right to a fair hearing in a criminal trial. I agree that prosecution witnesses should not cover their faces in court. Jurors must be able to assess credibility. But the defendant herself has a right to be heard, regardless. If jurors feel unable to assess her credibility, that’s unlikely to end up favouring her. It’s a risk she should be entitled to take.
The debate goes beyond the courtroom. Already this year, Prime Minister David Cameron has called to ban the veil in public areas such as schools, border checkpoints and courts.
And with a government review of Sharia courts around the corner, to veil or not to veil is fast becoming a debate that goes far beyond a bride’s pre-wedding nerves.