Written 5th November 2013 by Olliers Solicitors

The former Justice Secretary Ken Clarke has reignited the debate on whether defendants and witnesses should be allowed to wear a veil in court when giving evidence. He has said that a jury are not able to adequately evaluate evidence given by those wearing veils in court by claiming that a proper trial is impossible if a defendant is “in a kind of bag”.

Assessing Credibility

Clarke, who is now minister without portfolio, said that in order to establish whether someone was speaking truthfully, they needed to be able to see a defendant’s full face. Clarke and the coalition’s justice secretary until last 2012 and a barrister by profession, said body language and facial expression were crucial in assessing the credibility of witnesses and defendants.

“I don’t think a witness should be allowed to give evidence from behind a veil,

“I can’t see how on earth a judge and a jury can really appraise evidence when you are facing somebody who is cloaked and is completely invisible to you … It’s almost impossible to have a proper trial if one of the persons [involved] is in a kind of bag.”

“I think the judge and jury have got to see the face of the witness [to] judge their demeanour and decide for themselves whether they are going to rely on this evidence,” he said. “It may be you have to make some special arrangements, it may be they’ll have to be some screening from the general public, but I actually think it undermines a trial.”

Full Face Veil

The issue has come to public attention on a number of occasions this year. Earlier in the year, a Judge ruled that a Muslim woman should be allowed to wear a full face veil during the currency of her trial but she must remove it whilst giving her evidence. Following that case the Home Secretary Teresa May stated it was for Judges to make rulings on the matter during the currency of the trial as to whether witnesses and defendants should be asked to move any veil whilst giving evidence.

The Prime Minister David Cameron said he would consider guidance being offered to Judges on the issue as well as to teachers and immigration officers. Clarke, however, went further and said a clear rule should be in place banning any witnesses from giving evidence behind a veil.

Nazmin Akthar, vice-chair of the Muslim Women’s Network UK and a non-practicing barrister, said judges should have discretion to allow veils in some circumstances.

“Ideally you do need to see the face, but you can’t just have an outright ban,” she said. “Wearing a veil is a personal choice and removing it might cause discomfort. It might be that the person shows discomfort from the answering questions [under cross examination] but it might be discomfort from their face being shown. It should be decided on a case by case basis.”

Ruth Peters

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