B e f o r e :
Counsel for the Defence: Ms. Susan Meek
Crown Copyright ©
'What does the word Hijab mean?'
Hijab is the Arabic term used to describe the attire worn by Muslim women. The literal meaning of Hijab is 'covering', but this term also carries a more general connotation of 'modesty'. Hijab as a social practise thus embraces not only clothing but also values and behaviour.
The word Hijab is often mistranslated as the 'veil', which implies covering of the face and this is misleading. Although Hijab can involve the covering of a woman's face, most Muslims do not regard this to be essential.
'Does a Muslim woman have to wear Hijab?'
A central principle of the Holy Qur'an is that 'there is no compulsion in religion', as it is reiterated often in the Qur'an that truth stands out for itself. It is thus up to us as autonomous beings to contemplate and evaluate the merits of these teachings. Hence, although Hijab is certainly an integral part of the overall Islamic dress code, it is not for anyone to force it upon another human being.
'So how should a Muslim woman dress?'
In Islam, the basic rule is that women should cover their body with loose fitting clothes. This is a generic requirement and so the actual style of clothing is adaptable to suit personal preferences, cultural norms and practical requirements. There are therefore different styles of Hijab worn by women throughout the world. Some Muslim women, particularly those in the Arab world, also interpret Hijab to include an outer covering (Burka).
[www.mcb.org.uk/features, accessed on 4 September 2013.]
It is permissible for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is permissible for the qaadi (judge) to look at her in order to know who she is and to protect the rights of all concerned.
Shaykh al-Dardeer said: "It is not permitted to give testimony against a woman in niqaab until she uncovers her face so that it may be known who she is and what she looks like."
(Al-Sharh al-Kabeer li'l- Shaykh al-Dardeer, 4/194)
Ibn Qudaamah said: "The witness may look at the face of the woman against whom he is testifying so that his testimony will speak about her in specific terms."
Ahmad said: 'He cannot testify against a woman unless he knows who she is.'"
(Al-Mughni, 7/459; al-Sharh al-Kabeer 'ala Matan al-Muqni', 7/348, bi haamish al-Mughni; al-Hidaayah ma'a Takmilat Fath al-Qadeer, 10/26).
V In court cases
It is permissible for a woman to uncover her face in front of a qaadi (judge) who is to rule either in her favour or against her, and in this situation he may look at her face in order to know who she is and for the sake of protecting people's rights.
The same rules that apply to giving testimony or bearing witness also apply in court cases, because they serve the same purpose.
(See Al-Durar al-Mukhtaar, 5/237; Al-Hadiyah al-'Alaa'iyah, p. 244; Al-Hadiyah ma'a Takmilat Fath al-Qadeer, 10/26).
- the prosecution and defence are free to present their conflicting cases;
- to an impartial jury;
- in accordance with law and the rules of evidence and procedure;
- enforced by an impartial judge; and
- in open court in a public forum.
 Covering a witness's face may also impede credibility assessment by the trier of fact, be it judge or jury. It is a settled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges (and juries) have the "overwhelming advantage" of seeing and hearing the witness - an advantage that a written transcript cannot replicate: Housen v. Nikolaisen, 2002 SCC 33,  2 S.C.R. 235, at para. 24; see also White v. The King,  S.C.R. 268, at p. 272; R. v. W. (R.),  2 S.C.R. 122, at p. 131. This advantage is described as stemming from the ability to assess the demeanour of the witness, that is, to see how the witness gives her evidence and responds to cross-examination.
 Changes in a witness's demeanour can be highly instructive; in Police v. Razamjoo,  D.C.R. 408, a New Zealand judge asked to decide whether witnesses could testify wearing burkas commented:
". . . there are types of situations . . . in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence. The look which says "I hoped not to be asked that question", sometimes even a look of downright hatred at counsel by a witness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or body language. The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, a message touching credibility." [para. 78]
 On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only or indeed perhaps the most important factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence. [id. at .
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic
The Court's established case law confirms this function of the State [to ensure tolerance between religious groups]. It was held that in a democratic society the State may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety
While freedom of religion is in the first place a matter of individual conscience, it also implies a freedom to manifest one's religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms and manifestations which manifestation of a religious belief may take, namely worship, teaching, practice and observance. Nevertheless, it does not protect every act motivated or influenced by a religion or belief The obligation for a teacher to observe normal working hours which, he asserts, clash with his attendance at prayers, may be compatible with the freedom of religion as may be the obligation requiring a motorcyclist to wear a crash helmet, which in his view is incompatible with his religious duties.
In applying the Convention rights which have been reproduced as part of domestic law by the Human Rights Act 1998, the concept of the margin of appreciation has, as such, no application. It is for the courts of the United Kingdom to decide how the area of judgment allowed by that margin should be distributed between the legislative, executive and judicial branches of government. As Lord Hope of Craighead said in R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 380-381:
The doctrine of the 'margin of appreciation' is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
The issue is when, if ever, a witness who wears a niqaab for religious reasons can be required to remove it while testifying. Two sets of Charter rights are potentially engaged the witness's freedom of religion and the accused's fair trial rights, including the right to make full answer and defence. An extreme approach that would always require the witness to remove her niqaab while testifying, or one that would never do so, is untenable. The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court. A witness who for sincere religious reasons wishes to wear the niqaab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqaab outweigh the deleterious effects of doing so.
Applying this framework involves answering four questions. First, would requiring the witness to remove the niqaab while testifying interfere with her religious freedom?
The second question is: would permitting the witness to wear the niqaab while testifying create a serious risk to trial fairness? There is a deeply rooted presumption in our legal system that seeing a witness's face is important to a fair trial, by enabling effective cross-examination and credibility assessment. The record before us has not shown this presumption to be unfounded or erroneous. However, whether being unable to see the witness's face threatens trial fairness in any particular case will depend on the evidence that the witness is to provide. Where evidence is uncontested, credibility assessment and cross-examination are not in issue. Therefore, being unable to see the witness's face will not impinge on trial fairness. If wearing the niqaab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religious reasons may do so.
If both freedom of religion and trial fairness are engaged on the facts, a third question must be answered: is there a way to accommodate both rights and avoid the conflict between them? The judge must consider whether there are reasonably available alternative measures that would conform to the witness's religious convictions while still preventing a serious risk to trial fairness.
If no accommodation is possible, then a fourth question must be answered: do the salutary effects of requiring the witness to remove the niqaab outweigh the deleterious effects of doing so? Deleterious effects include the harm done by limiting the witness's sincerely held religious practice. The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom such as the people present and any measures to limit facial exposure. The judge should also consider broader societal harms, such as discouraging niqaab-wearing women from reporting offences and participating in the justice system. These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqaab. Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.
This appeal illustrates the tension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of new cultures, religions, traditions and social practices. This case is not purely one of conflict and reconciliation between a religious right and the protection of the right of the accused to make full answer and defence, but engages basic values of the Canadian criminal justice system. The Charter protects freedom of religion in express words at s. 2(a). But fundamental too are the rights of the accused to a fair trial, to make full answer and defence to the charges brought against him, to benefit from the constitutional presumption of innocence and to avert wrongful convictions. Since cross-examination is a necessary tool for the exercise of the right to make full answer and defence, the consequences of restrictions on that right weigh more heavily on the accused, and the balancing process must work in his or her favour. A defence that is unduly and improperly constrained might impact on the determination of the guilt or innocence of the accused.
The Constitution requires an openness to new differences that appear within Canada, but also an acceptance of the principle that it remains connected with the roots of our contemporary democratic society. A system of open and independent courts is a core component of a democratic state, ruled by law and a fundamental Canadian value. From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. Wearing a niqaab in the courtroom does not facilitate acts of communication. Rather, it shields the witness from interacting fully with the parties, their counsel, the judge and the jurors. Wearing the niqaab is also incompatible with the rights of the accused, the nature of the Canadian public adversarial trials, and with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada. Nor should wearing a niqaab be dependent on the nature or importance of the evidence, as this would only add a new layer of complexity to the trial process. A clear rule that niqaabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.
 From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. The principle of openness ensures that the courts and the trial process belong to all regardless of religion, gender or origin.
 In the courts themselves the trial is a process of communication. To facilitate this process, the justice system uses rules and methods that try to assist parties that struggle with handicaps to overcome them in order to gain access to justice and take part effectively in a trial. Blind or deaf litigants, and parties with limited mobility, take part in judicial proceedings. Communication may sometimes be more difficult. But the efforts to overcome these obstacles and the rules crafted to address them tend to improve the quality of the communication process. Wearing a niqaab, on the other hand, does not facilitate acts of communication. Rather, it restricts them. It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question. The niqaab shields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors.
 A clear rule that niqaabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society. This rule should apply at all stages of the criminal trial, at the preliminary inquiry as well as at the trial itself. Indeed, evidentiary issues arise and evolve at the different stages of the criminal process, and they affect the conduct of the communication process taking place during the trial.
As the Strasbourg court put it in Kalaη v Turkey (1999) 27 EHRR 552, para 27:
"Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account."
The Grand Chamber endorsed this paragraph in Sahin v Turkey, (Application No 44774/98, 10 November 2005, unreported, BAILII:  ECHR 819 ), para 105.
The Commission ruled to similar effect in Ahmad v United Kingdom (1981) 4 EHRR 126, para 11:
". . . the freedom of religion, as guaranteed by Article 9, is not absolute, but subject to the limitations set out in Article 9(2). Moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom."
If a Sikh man wears a turban or a Jewish man a yamoulka, we can readily assume that it was his free choice to adopt the dress dictated by the teachings of his religion. I would make the same assumption about an adult Muslim woman who chooses to wear the Islamic headscarf. There are many reasons why she might wish to do this. As Yasmin Alibhai-Brown (WHO do WE THINK we ARE?, (2000), p 246) explains:
"What critics of Islam fail to understand is that when they see a young woman in a hijab she may have chosen the garment as a mark of her defiant political identity and also as a way of regaining control over her body."
Bhikhu Parekh makes the same point (in "A Varied Moral World, A Response to Susan Okin's 'Is Multiculturalism Bad for Women'", Boston Review, October/November 1997):
"In France and the Netherlands several Muslim girls freely wore the hijab (headscarf), partly to reassure their conservative parents that they would not be corrupted by the public culture of the school, and partly to reshape the latter by indicating to white boys how they wished to be treated. The hijab in their case was a highly complex autonomous act intended to use the resources of the tradition both to change and to preserve it."
But it must be the woman's choice, not something imposed upon her by others. It is quite clear from the evidence in this case that there are different views in different communities about what is required of a Muslim woman who leaves the privacy of her home and family and goes out into the public world
(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings.
(2) The defendant is free to wear the niqaab during trial, except while giving evidence.
(3) The defendant may not give evidence wearing the niqaab.
(4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.
(5) Photographs and filming are never permitted in court. But in this case, I also order that no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court.
(6) I reserve the case to myself until further order.
Dated 16 September, 2013.