Court ruling fires British debate on Muslim veils

[garbon]

http://news.yahoo.com/court-ruling-fires-british-debate-muslim-veils-165454393.html

A British judge ruled on Monday that a Muslim woman could not give evidence at her trial wearing a full-face veil, sparking debate about whether Britain should follow other European countries and ban Islamic veils in schools and public places.

Senior politicians played down the likelihood of a ban after one minister said the coalition government should consider forbidding full-face veils, or niqabs, in schools, a measure that is gaining support from some members of parliament.

"My own view, very strongly held, is that we shouldn't end up like other countries issuing edicts or laws from parliament telling people what they should or should not wear," said Deputy Prime Minister Nick Clegg, leader of the coalition's junior centrist party, the Liberal Democrats.

"This is a free country and people going about their own business should be free to wear what they wish."

The case comes as the government considers how to better integrate Britain's 2.7 million Muslims without restricting the right to freedom of religious expression.

The conundrum took on added significance after four British Islamists carried out deadly suicide bombings in London in 2005.

Prime Minister David Cameron has previously said state multiculturalism has failed, but Britain has steered clear of following the examples of France and Belgium, where it is illegal for women to wear full-face veils in public.

But in a significant ruling on Monday, a Muslim woman, who argued that removing her veil in court breached her human rights, was told she could not wear it when giving evidence.

"ELEPHANT IN THE COURTROOM"

"The niqab has become the elephant in the courtroom," said Judge Peter Murphy, who also made the compromise that she could wear her veil at all other times during a trial later this year over accusations she had intimidated a witness in another case.

The woman, who cannot be named for legal reasons and who only started wearing a niqab in May 2012, had argued it was against her beliefs to uncover her face in front of men who were not members of her close family.

But Murphy said it would "drive a coach and horses through the way in which justice has been administered in the courts of England and Wales for centuries" if jurors could not observe her reactions.

"No tradition or practice, whether religious or otherwise, can claim to occupy such a privileged position that the rule of law, open justice and the adversarial trial process are sacrificed to accommodate it," he said.

"That is not a discrimination against religion. It is a matter of upholding the rule of law in a democratic society."

Murphy, whose ruling will serve as a precedent, said he hoped parliament or a higher court would provide a definitive verdict "sooner rather than later", while the woman's lawyer said it was too early to say whether she would appeal.

There have been growing calls from some British lawmakers for a ban on veils in schools.

Last week, Birmingham Metropolitan College, a higher education institution in central England, said it would ban staff and students wearing veils, but days later reversed the decision after criticism and protests.

Home Office (interior ministry) minister Jeremy Browne said the government should contemplate a ban to protect some young Muslims who he said might be compelled to wear a veil.

"I think this is a good topic for national debate," Browne, a Liberal Democrat, told the Daily Telegraph newspaper.

However, women wearing headscarves and veils on the streets of east London, home to a large Muslim community, said the government should not get involved in religious matters.

"It didn't get in the way of my education at all. People's mindset needs to change. I don't see why I should have to change, I can't accept that," said student Nasreen Jabber, 19.

Sarah Daniela, 29, self-employed sales trader and a recent convert to Islam, said it was her choice to wear a veil.

"It's 2013, we want to go forward, not backwards. To ban it (the niqab) is very stupid, there's no reason," said Daniela, who was wearing a headscarf.

I know it is wrong, but I can't help having my opinion colored by the recency of her conversion/donning of the niqab.

The bit in bold struck me as an odd sentence.

[derspiess]

Well it's bad enough they won't let her testify.  But calling her an elephant in the courtroom??

[Barrister]

I know it is wrong, but I can't help having my opinion colored by the recency of her conversion/donning of the niqab.

I don't think it's wrong at all.  It's difficult as all hell to do, but judges have some responsibility to determine just how honestly the subject believes in.

[Sheilbh]

This isn't the first time a court's done this. It's odd that it's kicked off now but I think that's largely due to politicians going wild.

My view is that this is Britain, wear what you want

[crazy canuck]

I know it is wrong, but I can't help having my opinion colored by the recency of her conversion/donning of the niqab.

I don't think it's wrong at all.  It's difficult as all hell to do, but judges have some responsibility to determine just how honestly the subject believes in.

Hey Beeb, is the importance of judging the credibility of the witness and the degree to which wearing a face covering might interfere with that ability a factor to be considered?

[Barrister]

I know it is wrong, but I can't help having my opinion colored by the recency of her conversion/donning of the niqab.

I don't think it's wrong at all.  It's difficult as all hell to do, but judges have some responsibility to determine just how honestly the subject believes in.

Hey Beeb, is the importance of judging the credibility of the witness and the degree to which wearing a face covering might interfere with that ability a factor to be considered?

Well according to the SCC, all sorts of things are supposed to be considered, including the factor you mentioned.

http://canlii.ca/en/ca/scc/doc/2012/2012scc72/2012scc72.html

[Sheilbh]

Incidentally here's the ruling:
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/The%20Queen%20-v-%20D%20(R).pdf

[Zanza]

The argument in the article sounds reasonable. Due process > religious freedom.

[Barrister]

The argument in the article sounds reasonable. Due process > religious freedom.

First of all there is no hierarchy of rights.  Due process is not more, or less, important that religious freedom.

Second, when this issue came up last year in Canada, I was quite taken by Justice Abella's analysis (admittedly the minority) which said - wait a second, what's the big deal about seeing someone's face anyways?'.

[97]                          This brings us to the extent to which N.S., by exercising her freedom of religion in wearing a niqab, harms the accused's fair trial rights.  The right to a fair trial is crucial to the presumption of innocence and maintaining confidence in the criminal justice system.  While I agree that witnesses generally and ideally testify with their faces uncovered in open court, abridgements of this "ideal" often occur in practice yet are almost always tolerated.

[98]                          "Demeanour" has been broadly described as "every visible or audible form of self-expression manifested by a witness whether fixed or variable, voluntary or involuntary, simple or complex": Barry R. Morrison, Laura L. Porter and Ian H. Fraser, "The Role of Demeanour in Assessing the Credibility of Witnesses" (2007), 33 Advocates' Q. 170, at p. 179.  Trial judges often rely on many indicators other than facial cues in finding a witness credible, including

                    certitude in speaking, dignity while on the stand, exhibition of disability, exhibition of anger, exhibition of frustration, articulate speaking, thoughtful presentation, enthusiastic language, direct non-evasive answering, non-glib answering, exhibition of modesty, exhibition of flexibility, normal (as in as expected) body movement, cheerful attitude, kind manner, normal exhalation, normal inhalation. . . .

(Morrison, at p. 189)

[99]                          Moreover, while the ability to assess a witness' demeanour is an important component of trial fairness, many courts have noted its limitations for drawing accurate inferences about credibility.  In Faryna v. Chorny, [1952] 2 D.L.R. 354, for example, the British Columbia Court of Appeal held that relying on the "appearance of sincerity [would lead to] a purely arbitrary finding and justice would then depend upon the best actors in the witness box" (p. 356).  According to the court, demeanour "is but one of the elements that enter into the credibility . . . of a witness", with other factors including the witness' opportunity for knowledge, powers of observation, judgment, memory and ability to describe clearly what he or she has seen and heard (pp. 356-57).

[100]                     The Court of Appeal for Alberta similarly urged caution in relying on demeanour in R. v. Pelletier 1995 ABCA 128 (CanLII), (1995), 165 A.R. 138:

I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth.  He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.

. . . I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour.  [para. 18]

(Citing a 1973 paper by Justice MacKenna and approvingly quoted in P. Devlin, The Judge (1979), at p. 63.)

See also R. v. Levert 2001 CanLII 8606 (ON CA), (2001), 159 C.C.C. (3d) 71, at p. 81.

[101]                     The Canadian Judicial Council's model jury instructions also acknowledge the inherent limitations in relying on demeanour:

What was the witness's manner when he or she testified? Do not jump to conclusions, however, based entirely on the witness's manner. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different intellects, abilities, values, and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or the most important factor in your decision.

(Model Jury Instructions, Part I, Preliminary Instructions, 4.11 Assessing Testimony (online))

[102]                     And courts regularly accept the testimony of witnesses whose demeanour can only be partially observed.  Section 14 of the Charter, for example, states that a witness who cannot hear, or who does not understand or speak the language used in the proceedings, has the right to the assistance of an interpreter.  In such cases, "the trial judge has to make credibility findings through the filters of the interpreters": R. v. A.F. 2005 ABCA 447 (CanLII), (2005), 376 A.R. 124 (C.A.), at para. 3; see also R. v. R.S.M., 1999 BCCA 218 (CanLII), 1999 BCCA 218 (CanLII), at paras. 12-14.  The use of an interpreter may well have an impact on how the witness' demeanour is understood, but it is beyond dispute that interpreters render the assessment of demeanour neither impossible nor impracticable.  As stated by the Alberta Court of Appeal in R. v. Davis 1995 ABCA 188 (CanLII), (1995), 165 A.R. 243:

     The interpreter is usually calm and professional and so the English interpretation heard by the judge is done in a calm, non-contentious manner. There is a brief time delay allowing the witness, who [might] understand English, more time to provide her answer. An interpreter no doubt communicates in appropriate language when possible, and may well improve upon the explanation of the witness. I do not suggest for a moment that is done dishonestly, but rather because there may often be no more appropriate translation.

     This is not to say that witnesses who testify through interpreters can never demonstrate demeanour. They can and do, and the assessment of that demeanour may help a fact-finder determine truth. [Emphasis added; paras. 18-19.]

[103]                     A witness may also have physical or medical limitations that affect a judge's or lawyer's ability to assess demeanour.  A stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking.  All of these are departures from the demeanour ideal, yet none has ever been held to disqualify the witness from giving his or her evidence on the grounds that the accused's fair trial rights are thereby impaired.

[104]                     There are other situations where we accept a witness' evidence without being able to assess demeanour at all.  The Criminal Code, R.S.C. 1985, c. C-46, permits a judge to order and admit a transcript of evidence by a witness who is unable to attend the trial because of a disability, even when the accused's counsel is not present for the taking of the evidence: ss. 709 and 713.  Courts also allow witnesses, including material witnesses, to give evidence and be cross-examined by telephone: Criminal Code, s. 714.3; see also R. v. Chapdelaine, 2004 ABQB 39 (CanLII), 2004 ABQB 39 (CanLII); R. v. Butt 2008 CanLII 50489 (NL PC), (2008), 280 Nfld. & P.E.I.R. 129 (N.L. Prov. Ct.).

[105]                     Exceptions to hearsay evidence are another example where the trier of fact is completely unable to assess the demeanour of the person whose statement is being admitted as evidence.  In R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, McLachlin J. developed a principled exception to the hearsay rule where the statement met the requirements of necessity and reliability (p. 542), with the result that the Court in a sexual assault case admitted the statement of a three-year-old child to her mother because it was unrealistic to require the child to testify and undergo cross-examination.  The Court noted that "in most cases the concerns of the accused as to credibility [can] be addressed by submissions as to the weight to be accorded to the evidence" (p. 547).

[106]                     Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness'verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand.

[107]                     It is clear from all of this that trial fairness cannot reasonably expect ideal testimony from an ideal witness in every case, and that demeanour itself represents only one factor in the assessment of a witness' credibility.  As Morden A.C.J.O. noted in R. v. Levogiannis reflex, (1990), 1 O.R. (3d) 351 (C.A.), the ideal is subject to several exceptions and qualifications in the interests of justice:

                         Accepting that [face-to-face confrontation] is a right, of a kind, I do not think that it can be said to be an absolute right, in itself, which reflects a basic tenet of our legal system. It is a right which is subject to qualification in the interests of justice.

                         The reason underlying the right is said to be that it is more difficult not to tell the truth about a person when looking at that person eye to eye. . . . But . . . it is difficult to dogmatize about this — and in some cases . . . eye to eye contact may frustrate the obtaining of as true an account from the witness as is possible.  This is why I think the right is more accurately considered to be one that is subject to exceptions or qualifications rather than a fundamental or absolute one. [p. 367]

[108]                     And since, realistically, not being able to see a witness' whole face is only a partial interference with what is, in any event, only one part of an imprecise measuring tool of credibility, we are left to wonder why we demand full "demeanour access" where religious belief prevents it.

[109]                     In my view, therefore, the harmful effects of requiring a witness to remove her niqab, with the result that she will likely not testify, bring charges in the first place, or, if she is the accused, be unable to testify in her own defence, is a significantly more harmful consequence than not being able to see a witness' whole face. 

[Admiral Yi]

Does Yookay have the right to not self-incriminate?  If so this judgement seems pretty moot.

[frunk]

Would it be ok for someone to speakerphone in their testimony?

[Barrister]

Would it be ok for someone to speakerphone in their testimony?

In certain circumstances, yes.  I've done it before.

[Grey Fox]

 

[Crazy_Ivan80]

Sarah Daniela, 29, self-employed sales trader and a recent convert to Islam, said it was her choice to wear a veil.

"It's 2013, we want to go forward, not backwards. To ban it (the niqab) is very stupid, there's no reason," said Daniela, who was wearing a headscarf.

->going forward is not done by converting to islam, especially not as a woman.

[garbon]

Sarah Daniela, 29, self-employed sales trader and a recent convert to Islam, said it was her choice to wear a veil.

"It's 2013, we want to go forward, not backwards. To ban it (the niqab) is very stupid, there's no reason," said Daniela, who was wearing a headscarf.

->going forward is not done by converting to islam, especially not as a woman.

Oh how lovely to have caught you. I think I'll throw you back.