Wednesday 18 September 2013

Veils, Jurors and Justice: The Law in Summer 2013

LawScape has now returned from its summer break. The summer months are traditionally quieter in the legal world as Parliament, many of the courts, and much of the Government have a well deserved break. Some of the higher courts continue to enjoy that deserved break. However, the legal world has been anything but quiet this summertime.

Whether it is the continuing fiasco concerning legal aid, decisions about human rights, or the trial of television celebrities for sexual offences, it has been a very busy legal summer. Two of the most interesting developments for me have been the announcement that individuals up to the age of 75 will in future be able to serve on juries, and the decision that a Muslim woman on trial for witness intimidation must remove her niqab (veil) if and when she gives evidence.

Older Jurors

The announcement that those aged up to 75 will now be able to sit on juries is a welcome one. The right to be tried by our peers is one that has its foundations in the 1215 Magna Carta (the ‘Great Charter’). We are very defensive of our right to be judged by a random selection of people that represent our society. In recent years however, juries have not be able to represent the oldest members of our society: the over 70s. In the past, this group did not make up a significant proportion of the population. But we are now all living a great deal longer, so the over 70s represent a significant proportion of the population. If our jury system is to continue to produce juries that represent our society, then it must be possible to have the over 70s selected. Not only will this ensure that juries reflect modern society, but it will make use of the very great and important life experience that the over 70s have acquired. The announced change is to be commended.

The change will be effected by an amendment to the Juries Act 1974. Currently this provides that only those aged 18 to 70 may sit on a jury.

Veils in Court

This week His Honour Judge Peter Murphy decided that a female Muslim defendant charged with witness intimidation must remove her veil if and when she gives evidence. At other times, however, she may continue to be veiled.

The judge had to balance the woman’s right to express her religious beliefs (under Article 9 of the European Convention on Human Rights) and the public interest that criminal trials are conducted in accordance with the rule of law, open justice and the adversarial nature of our trial system.

In essence, the judge held that the jury’s ability (and, to a lesser extent, the judge’s and lawyers’ abilities) to observe the defendant’s facial reactions to the questions they are asked is crucial and not to be compromised. The defendant’s evidence is crucial and when it is given the defendant must submit fully to the scrutiny of the jury. On the other hand, while a jury may observe the defendant’s reaction at other times (when they are in the dock not giving evidence) this is not sufficiently important to trump the defendant’s right to express their religion by wearing a veil. Accordingly, at other times the defendant may remain veiled.

Unsurprisingly, the decision has been controversial, with various individuals saying that the court went too far or did not go far enough. For my own part I remain undecided. In my opinion the court certainly did not go too far, it was right to order that a veil cannot be worn when a defendant gives evidence. The question is if it went far enough?

What are your thoughts?

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