Not Saussure

November 10, 2006

Blind justice II — Express and MPs bemused

Filed under: civil liberties, Islam, Law — notsaussure @ 9:12 pm

As noted by Five Chinese Crackers, Mr Justice Hodge has issued an interim direction about wearing of Islamic veils in court, in response to the enquiry from Judge Glossop, who objected to Shabnam Mughal wearing one in his court earlier in the week, as she apparently has done for the past two years at tribunals in Birmingham and Stoke (where Judge Glossop sits) without causing any complaints until now.

Mr Justice Hodge’s direction seems quite straightforward:

“Immigration judges must exercise discretion on a case-by-case basis where a representative wishes to wear a veil.

“The presumption is that if a representative before an AIT tribunal wishes to wear a veil, has the agreement of his or her client and can be heard reasonably clearly by all parties to the proceedings, then the representative should be allowed to do so.

“If a judge or other party to the proceedings is unable to hear the representative clearly then the interests of justice are not served and other arrangements will need to be made.

“Such arrangements will vary from case to case, subject to judicial discretion and the interests of all parties.”

So that should settle the matter until Lord Phillips, the Lord Chief Justice, issues guidance for the whole of the court system;

“I have asked the committee to address this issue urgently, and the senior judiciary will also consult with relevant bodies in developing such guidance,” [Lord Phillips] said.

“The president of the AIT has provided some helpful interim advice within his jurisdiction to meet the immediate needs in one particular case.

“But this should not necessarily be seen as a blueprint of more general guidance, as that process needs to reflect a wide range of judicial proceedings and scenarios.”

Needless to say, The Express and various rent-a-gob MPs aren’t happy, not least because they seem to only to have the vaguest idea of what goes on in courts.

FiveCC, quoting Islamophobia Watch, informs us

The Express editorial, headed “Allowing veils in court is a deeply disturbing move”, condemns the decision as “yet another act of multicultural surrender” which has allowed “Islamic pressures to undermine yet another foundation of our society”. It adds: “The very idea of a disembodied voice, steeped in a defiantly alien culture and covered entirely in black, being able to take away the liberty of any Briton is quite disgusting.”

Indeed; personally I find the idea of any one, whether they’re covered in a naqib, a suit or (in David Blunkett’s case) pajamas, being able to take away anyone’s liberty without a trial disgusting, too. Fortunately, though, not even John Reid has yet got round to suggesting that advocates at Immigration Appeals Tribunals should have the power to issue Control Orders or to authorise the prolonged detention of terrorist suspects, so we needn’t worry too much about that one.

However, it’s a bit depressing, though perhaps not surprising, to find that MPs are as clueless as tabloid editors about courts and what goes on there — honestly, I sometimes think all MPs and newspaper editors should be made to take citizenship courses; apparently the Express phoned up

David Davies, Conservative MP for Monmouth, [and he] said the decision caved in to Islamic pressure.

He added: “British courts are there to determine whether the truth is being told. How can they do that if they cannot hear? Allowing people to hide their faces in a court where all should be laid bare in the search for truth and justice is not good enough.

“If we were in a Muslim court we would be expected to abide by their rules on dress. So why is it that this lady can work in a British court and wear whatever she likes?”

Mr Davies’ concerns about courts determining whether the truth is told or not apply to witnesses, not to advocates — they don’t give evidence (and, if they try to, in their closing speeches, they tend to get ticked off for so doing by the judge). The lawyers are there to ask questions of the witnesses and to submit legal arguments, so that’s a non-starter.

His point about ‘If we were in a Muslim court…’ is nonsensical; apart from the fact that the only court procedure we’re interested in here is our own, Judge Hodges has just made clear that, for the past two years, Miss Mughal has been complying with our rules — it’s just that Mr Davies and the Express don’t like what these rules turn out to be.

Working down the list alphabetically, the Express next turned to

Philip Davies, Tory MP for Shipley, [who] said: “It is outrageous that Mr Justice Hodge has not defended his judge in this case. British justice has always been based on the principle of being completely open. How can it be open if a lawyer will not show her face?”

Again, this I do not understand at all. Judge Glossop asked for guidance on procedure in Immigration Tribunals and was given it; ‘it is outrageous that Mr Justice Hodge didn’t tell him he’d got it wrong and his brother judges before whom Miss Mughal had appeared had got it right, because he’s a sensitive chap and being so told might hurt his feelings’? Come off it.

And quite what the lawyer showing or not showing her face has got to do with the principle that justice should be done in open court (rather than, for example, closed hearings relying on secret evidence denied to the accused) is completely beyond me.

We’ll have to wait for Lord Phillips’ directions for the rest of the courts, but I think there are three practical points that need consideration. The idea that a veil is inappropriate is a non-starter unless the courts say it’s inappropriate; wearing one couldn’t be taken as a deliberate expression of defiance or contempt, since we know they’re worn out of religious conviction rather than disrespect for the proceedings.

Presumably we wouldn’t want to deny women with these particular religious views access to the courts as plaintiffs — you can only ask the court to uphold your legal claim to something if you agree to take off your veil — and it would, I think, be very difficult to sustain the case that a woman defendant in a criminal matter was refusing to participate in her trial (so it had to be conducted in her absence) if she insisted on wearing a veil.

Would we want to insist civilian witnesses could only be heard if they took off their veils? There you’ve got the argument that the jury (in a criminal matter) need to see the witnesses to judge their demeanour, but that founders on the fact we’re perfectly happy to have blind people sit on juries and serve on the judiciary; if they can do their job without being able to see anyone’s face, then there’s no reason I can see why it should be an issue that they can’t see the face of individual witnesses. And, at least in my experience, it’s how witnesses answer questions, and how they sound, that matters rather than the expression on their face while they’re so doing.

I can see that we could have problems where it’s important to identify someone, though I’d think, in practice, that would be a very rare problem and I can think of several ways round it. But generally, I don’t see why someone wearing a veil should be an issue.

The point to hold onto in all this, I think, is that the courts are there to administer justice; the question is, or should be, does an advocate or anyone else wearing a veil hinder them in this, or is making a fuss about it going to hinder the administration of justice? Whether the Daily Express likes veils or not isn’t really a consideration for them.

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