The veiled Muslim witness and the accused’s right to a fair trial in adversarial legal systems

Abstract

In a number of recent cases across common-law jurisdictions, female Muslim witnesses have been denied their right to wear the niqab while testifying in court. Ultimately, in each of these cases, the right to a fair trial—and the perceived threat to that right—overrode the witness’s express desire to veil. However, a fundamental fact not recognised in any of these judgments is that a Muslim woman’s refusal to remove her veil has drastic implications for her access to courts in both the criminal and civil contexts, thereby implicating her ability to participate as a citizen. It raises the critical question whether such a state of affairs should be tolerated in a pluralistic society. This contribution investigates this question by analysing the right to confrontation from historical, epistemological and comparative perspectives, including its limitations. It then evaluates the rationales that the courts have advanced for holding that the veiled Muslim witness violates the accused’s right to a fair trial, namely it deprives the court of the ability to observe the witness’s demeanour, it infringes on the right to cross-examine the witness, and it defies the ‘symbolic’ value of confrontation.