A Muslim woman from East London, Rebekah Dawson, has been charged with intimidating a witness. Should she be allowed to wear the full-face niqab in Court?
Personally I don't support the outright ban the French brought in a couple of years ago. It seems unnecessarily restrictive. But self-evidently it's harder to communicate with someone whose face you can't see, and it's not hard to think of contexts where this might prevent proper functioning of civil society or commerce.
It's also not hard to think of contexts in which a young girl might be forced to wear a niqab. By her parents, for example.
If Ms Dawson wears the niqab in the witness box, she will effectively be giving evidence from behind a screen. We allow witnesses to do this where national security is apparently at stake, but not defendants (It's curious how Ms Dawson has had the support of Liberty, the civil rights pressure group, who are not on the whole well disposed to secret agents giving evidence in private). Of course, a Defendant can decline to give evidence at all, and if so the Judge can invite the jury to draw inferences from that failure. A Defendant could also (in my day - it's a long time since I was a criminal lawyer), draft a statement with his brief in a police station, give no interview and subsequently no evidence in Court. Again, inferences could be drawn.
If you were starting from scratch you might say that a Defendant should be allowed to wear the niqab, but that inferences could be drawn from her desire to keep her face out of the jury's sight. Because undoubtedly we communicate with our faces as well as our words. It doesn't seem unreasonable to say that the jury should be entitled to see how the evidence is given as well as hear the words themselves; after all, being in the grasp of the criminal process already puts constraints on so many aspects of a person's liberty. So removal of the niqab is not a qualitative shift in the Defendant's position vis a vis the state.
The Judge in Ms Dawson's case has ruled that she can wear it in court, but not when she gives evidence. A very British compromise. But while our willingness to meet other people half way is one of the most characteristic and attractive things about our culture, it can also be a weakness. Some of the people we are compromising with have a very much sharper and less forgiving attitude.
