D(R), R. v [2013] EW Misc 13 (CC) (16 September 2013)

D(R), R. v [2013] EW Misc 13 (CC) (16 September 2013)

A defendant is not entitled to wear the niqaab during the giving of evidence before a jury or judge, as the interests of justice, open justice, and the adversarial trial process require that the jury, judge, and witnesses be able to see the defendant's face to assess credibility and ensure a fair trial. The right to manifest religion under Article 9 ECHR is qualified and may be restricted where necessary and proportionate to achieve these aims. However, the defendant may wear the niqaab at other stages of the proceedings, except for identification purposes and when giving evidence.

Citation
[2013] EW Misc 13 (CC)
Parties
Defendant: D; Prosecution: Crown
Jurisdiction
England and Wales
Judgment Date
16 September 2013
Procedural Posture
Criminal / Plea and Case Management Hearing; Directions on Conduct of Proceedings
Outcome
Directions given: Defendant must remove niqaab for identification and when giving evidence; may wear niqaab at other times during proceedings.
Legal Topics
Religious Expression in Court, Right to Fair Trial, Manifestation of Religion, Courtroom Procedure, Open Justice, Adversarial Trial, Article 9 ECHR
Criminal Law Human Rights Law Constitutional Law Religious Expression in Court Right to Fair Trial Manifestation of Religion Courtroom Procedure Open Justice +2 more

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Parties

D

Defendant

Crown

Prosecution

Procedural Posture

Criminal / Plea and Case Management Hearing; Directions on Conduct of Proceedings

Legal Issues

  1. 1 To what extent is a defendant entitled to wear the niqaab during Crown Court proceedings?
  2. 2 How should the court balance the defendant's right to manifest her religion under Article 9 ECHR against the interests of justice, open justice, and adversarial trial?
  3. 3 What legal principles govern restrictions on religious dress in criminal proceedings?

Ratio Decidendi

A defendant is not entitled to wear the niqaab during the giving of evidence before a jury or judge, as the interests of justice, open justice, and the adversarial trial process require that the jury, judge, and witnesses be able to see the defendant's face to assess credibility and ensure a fair trial. The right to manifest religion under Article 9 ECHR is qualified and may be restricted where necessary and proportionate to achieve these aims. However, the defendant may wear the niqaab at other stages of the proceedings, except for identification purposes and when giving evidence.

Court Disposition

Directions given: Defendant must remove niqaab for identification and when giving evidence; may wear niqaab at other times during proceedings.

Orders

  • Defendant to remove niqaab for identification by a female police officer in private.
  • Defendant to remove niqaab when giving evidence before the jury or judge.