A Study on Religious Rights in the Legal System

In the case of R v D(R)aMuslim woman has been charged on single count of witness intimidation, where she refused to remove her niqab (religious piece of cloth which worn by the Muslim women to cover body) on religious grounds while providing evidence at court. It was held by Judge Murphy that:-

“Everyone has the right to manifest their religion – but the courts have a separate duty to run effective and open trials”.

In case the issues have been drawn are whether there is a balance between religious freedom and the Court duty for an effective legal system. Does the justice system of this country have any importance and adversarial trial? How does the credibility of the witness affects when she is allowed to wear niqab, does that affect the due process rights of the defendant while on trial. The case also highlights the importance of how does ECHR outlines the religion in Article 9, how it compatible and proportionate to the case of the Muslim women. And also points out conflicts between the religious pluralism and law.

Issue

Everyone has the right to practice and manifest their religion, which lay under Article 9 of the European Convection of Human Rights. Therefore, the individual has the right to express their religious beliefs through dress codes. However, the law requires them to respect its institutions, including the court and have an obligation to obey what they law says, also to involve fully in the court proceedings. The rules and practices of the Courts are laid through the governing principles which the Court has to abide their decisions based on the law of the land and everyone is seen equally before eyes of the law. This means whoever come to court have followed what Court directs them to do. Other point is that all criminal justices proceedings are open to public and they are open to reporting by the press and the court cannot deviate from these principles for lesser purpose. In England and Wales, the adversarial system is central administration of the criminal justice system. Therefore, an adversarial trial which involved judges, juries, witness and defendants needs communication and able to identify each other at all times of the proceedings. The main point lies in open fair trial is to provide the jury to assess the credibility of witness, which will allows the jury to judge the reactions of witness while giving evidenceThe Equal Treatment Bench Book provides general guidelines about wearing of religious dress in the court room. But, the Court must balance any competing interest: but it concludes that ‘the interest of justice remains paramount’ which means interest of the public weighs up rather than individual rights because of public safety.

Judge Murphy state in the ruling:

“In my judgement, the adversarial trial demands full openness and communication, and, like LeBel and RosthsteinJJ, I am firmly convinced that the wearing of niqaab necessarily hinders that openness and communication. A criminal trial in Crown Court is, by definition, a serious matter. It has the potential to change lives – not only that defendant, but also that of victims, witness even jurors. The rights of participants in the trial must be considered.”

Basically, Judge Murphy highlights the fact that veil acts as barrier of communication between the public and witness. Importantly, the prosecution have found evidence that niqab is being abused as a disguise, to facilitate impersonation or some other improper purpose.This can be huge problem in the eyes of the justice because the public doesn't know who is inside in the veil while providing the evidence. The person in the veil can provide an anonymous decision which can change the direction of the court proceedings. This cannot be encouraged because the defendant liberty at stake, wrong witness evidence can convict an innocent victim, so the court would be justified in taking intimidate steps to protect the integrity of its proceedings.

Judge Murphy also stated that it unfair to ask a witness to give evidence against a defendant whom he cannot see.

“It is unfair to ask a juror to pass judgement on a person whom she cannot see. It unfair to expect that juror to try to evaluate the evidence given by a person who she cannot see, deprived of an essential tool for doing so: namely, being able to observe the demeanour of the witness: her reaction to being questioned: her reaction to other evidence as it given."

Judges emphasise the importance of open trial is to deliver an effective court system which following from years. Wearing of the niqaab can be lessening the creditability because it doesn't allow the judges and juries to assess the outlook of the defendant and their response while cross examination by the advocates. The physical presence of witness is seen as an important element in adversarial trial. In an article “Credibility Testimony in and out of the court” indicates the body language where people tend to rely on stereotypic cues to decide whether others are lying. For example certain body movements (e.g. shifting positions, gaze aversion) increase beliefs that someone is being dishonest”. (e.g., Zuckerman, Koestner, & Driver, 1981).Therefore, it important that niqab should not be worn would consistent with the principle of openness of the trial process. This rule should apply at all stages of the criminal trial, at preliminary inquiry as well as at the trial itself.

Moreover, the other principle rises from notion of due process rights, which means that no defendant shall be convicted of crime unless that burden of proving the guilt falls upon the defendant falls upon the prosecution; and that standard of proof beyond a reasonable doubt The defendant also have right to watch how does the witness deliver the evidence and also have the right identify the witness. Failure to such right, the court have the power to refuse the evidence as stated in the Section 78(1) of the of the PACE Act 1984 “

The European Convection of Human Rights, Article 9, (1) provides a positive right to both freedom of thought, conscience and religion (known as forum internum) and manifestation of one religion or belief (the forum externum).The term manifestation contributes of elements such as worship, teaching, practice and observance. The court emphasis that it is not a definitive list which as interpreted in the Article 9. However, it is necessary for the applicants to show that there was a hindrance placed in their ability to practice one of these activities in order to claim their freedom to manifest their religion or beliefs has been broken.

Interference means a person’s inability to manifest their religion or belief is something for which the state is responsible, or whether it is largely attributable to choice which those individuals have freely made themselves. This can be test by applying the doctrine of proportionality which police the justification of state interference with human rights, ensuring the state places no greater right than necessary, as in the case of Dahlab v Switzerland, it proper to the state to interfere not to wear the headscarf to protect the religious neutrality, and in Leyla v Sahin v Turkey in order to protect the ideology secularism in higher education.

So in the case ofR v D(R) were unable to manifest her religion or to engage in form of observance, but the court can interfere as it stated in Article 9(2) “ as long as any limitation is prescribed by the law , necessary democratic society” Judge Murphy points out in the ruling that :

“..In my judgement, the rights and freedoms of person who come before the court as complainants, witness and jurors and of public insofar as the public has an interest in fair administration criminal justice by the Crown Court”

This means Court has a duty to ensure that trial is visible to the public so that they can judges the evidence given by the witness, which reflects the doctrine of adversarial trial in criminal justice system.

In application to the case of Kokkinakis v Greece , the claimant succeeded because there was a violation of the article 9. The general principles are laid in the case where that religious freedom was primarily matter of individual conscience; it also implied inter-alia, freedom to manifest one religion. The Article 9 has also reflected in Greek constitution, in as far as article 13 which latter declared that freedom of conscience in religious matters are inviolable, there should be freedom to practice any known religion. Therefore, in case if R v D(R), the witness had the right to practice her religion as it has recognition. InRafah Partisi (The Welfare Party) vTurkey the Grand chamber of said:

“ The obligation of a teacher to observe normal working hours which he asserts, clash with attendance at prayers, may be compatible with the freedom of religion …as may be obligation requiring a motorcyclist to wear crash helmet , which his view it is incompatible with his religious duties.”

Considering a article found in 2008 The Economist and New York Times published a article about Faiza Silmi, a young Moroccan woman whose application for French was rejected for her application for French nationality due to “lack of assimilation”. The Council of the State denied because “she adopted a radical practice of her religion which incompatible with the essential values of the French community, particularly with the principle of sexual equality.

If we also assess the doctrine of margin of appreciation is one of the important safeguards introduced by the European commission and the court to provide the freedom to apply the convection in accordance with their own unique legal and culture traditions, without changing the aims and purpose of the convection.In the case of McFarlane v Relate Avon Ltd, the ECHR found that UK is entitled to a margin of appreciation to uphold its laws which made by a democratically elected parliament and that no violation of article 9 had occurred. The principles of compatibility and margin of appreciation highlights the fact that individual religious freedom cannot override the legal system or the state culture. In the case of RvD(R) we can identify that there are incompatibility because there are clash between her religious freedom and criminal justice system which had been laid it found from Magna Carta.Also from of McFarlane v Relate Avon Ltd, public interest and other rights of other groups in the society are also important in the Convection, therefore we can understand there is no violation Article 9.

On the other hand, UK is a successful multicultural society that has embraces different cultural diversity through a policy of equal opportunities in an atmosphere of mutual tolerance and anti-racism.Religion is one of the fundamental bases of society which hold everyone through practice of faith. As the law incorporates new regulations on matters can dress, safety, education and security, there is conflict with religious prescriptions. These prescriptions can lead to religious pluralism, which an attitude regarding to religious beliefs existed in the society. The niqab issue can question the right of the Muslims who live in democratic, where they can practice their cultural beliefs but restricted by certain aspects of political and legal issues of the country. One side is that for some Muslim women is t wearing Islamic religious symbol such the veil is an important symbol of their identity, preventing such freedom to express the identity in public is disrespected both their cultural and religious identity. Also other Muslim women view the veil as a protection from the sexual abuse from men and also as religious modesty, commitment of their religion which has to be respected by the society. The conflict arises as whether the law provides equal recognition to other religious minorities such as Hinduism, Sikhs or recognised religions. In 1972, British parliament had passed that all motorcyclist should wear crash helmets, but the Sikh minority campaigned against. However, the Sikh turban has meet standards; it was accepted as an adequate substitute for the helmet which has successfully implied inRoad Traffic Act 1988 s16 (2). However, in case of the niqab it different, Muslim women can freely wear their religious symbols, but in the platform of justice system demands openness and visibility, which cannot be changed due to the rule of law.

Overall, the issues draw the fact that law can restraint the religious freedom of the witness while on the trial if it interferes with public safety and change in fair adversarial system. Covering up the face using religious symbols can limit credibilityprovided by the veiled witness and prevents the rights of defendant for a fair trial where he can identify the witness while cross examination. Other important point is that UK cannot put in favour for one religious minority, because UK has a diverse society, which is obliged to respect other religious-cultural aspects. On side of the argument that Judge Murphy stated inR v D(R)‘public has a strong interest in encouraging women… forward without fear that court process may compromise their religious beliefs’. Society wants the women irrespective of their religious ideologies to take part in justice system, restricting the religious symbols such as niqab. The UK parliament or higher court have to find a system where they can compromise religious freedom such as where the defendant is free to wear the niqab during the trial, but the judge can advise when she will be not be free do while giving evidence or can provide a screen which shielding her from public view but not to the jury or the judge. Applying these methods may not violate the Article 9 of the ECHR and provide a balance for the fair trial process.