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Iniquity in equity and the niqab

11 December 2013

AutomatonLike many liberal thinkers, I am wrong footed by the niqab debate. On the one hand we campaign for the freedom of the individual; on the other, we are suspicious of a religion that imposes such isolation on half its members. And though it is tempting to escape from this contradiction by arguing that the women who claim to be happy to wear it have not consented freely, that in itself is a kind of cultural arrogance. Perhaps it doesn’t matter in most contexts (unless we are on some crusade to protect the oppressed), but plainly the issue takes on a different dimension in court. Should defendants’ faces be visible throughout, not at all, or only when giving evidence?

So I turned with hunger to a new book by Gary Watt entitled Dress, law and naked truth. Starting from the polar cases of the Islamic veil and the naked rambler, he aims to persuade us that Dress is Law, and Law is Dress. And because the author is highly articulate, intelligent and erudite, he very nearly succeeds. His tour-de-force of etymology alone would put Brichot in his place. I won’t attempt to summarise a book you should read for yourselves, nor to add to the multitude of examples that support his proposition (although it is inviting to say rather more about a social class that is termed the noblesse de robe, so many of whose members fill the pages of my work on eighteenth-century pastellists). But there is room for a few words on some stones inevitably left unturned – hardly a surprise in view of the enormous quantity of literature on costume with so much of which Professor Watt is evidently familiar.

The crux of the courtroom debate is whether the face of the defendant, witness or juror needs, in the interests of justice, to be visible to judge, counsel and other jurors. It touches on a number of previous posts on this blog: most obviously The mind’s construction, which I shan’t repeat.

Plainly we can’t solve this by arranging all-female courts, any more than we can find enough Urdu speakers at the bar and on the bench to offer native-language justice. But are we now to say that no blind person can judge, serve as juror or give evidence, or indeed appear as a party? In my post Jurors and asses, I argued that jurors should not be asked to do silly things, as the rules of evidence so often seem to require; and donning the blindfold that Justice is supposed to wear (but has been forgotten in the present debate) seems to be one of these.

Let’s turn it round. How should we react when a particularly comely witness gives evidence? I make no comment on current proceedings, and don’t suggest that a witness whom a judge of an earlier generation might have termed “fragrant” could, through appearance alone, influence the outcome of a trial: but recent press coverage suggests that could be a material risk. No doubt the judge will ensure that that is not the case (and I stress that this blog takes no side in any particular proceedings). But it seems at least as real a possibility that perceived pulchritude could prejudice proceedings as that a jury might mistake mendacity in a Muslim.

Is the answer then that all evidence should be given from behind a screen? With distorting microphones (as some accents are distinctly dodgy)? Or simply in writing? The difficulty of course (particularly for my common-sense-burdened asses of a jury) is how slow everything then becomes. When Alan Turing devised a test for artificial intelligence (based on whether the computer could successfully pretend to be a human in responding to a series of questions), just such an interface was required. But the weak link in his idea was how long the conversation needed to last to get to the answer: looking into the box would be so much easier. I am reminded of the passage (cited by Professor Watt) in Twelfth Night where Feste proves his mistress a fool: in a similar passage he later questions Malvolio, who claims to be no more mad than Feste, inviting him to “make trial of it in any constant question”. The courts may, as Professor Watt notes, be pure theatre, but scripts of Shakespearean length are apt to get cut in today’s climate of austerity.

How one wonders would a computer behave in a fine art auction? Could a skilled auctioneer coax an extra bid out of one? And if you gave the computer the hammer, could it do any better than one which merely opened sealed bids? In the real world there is an obvious importance in face-to-face interaction: human beings are not driven by strictly logical decision making; and neither are courts.

I was reminded by Professor Watt’s book of my own appearance in the High Court earlier this year. Having long since cast off the uniform of the City banker I used to be, I struggled with reluctance into my suit and tie. But it was not the judge’s clothing that made me uncomfortable, nor the points we were to discuss: rather the simple mechanics of having to remember to address him in the third person.

The real point about clothing in court is that it is relatively easy to make adjustments. We are mostly intelligent enough to be aware of obvious prejudices, and few of us are going to convict someone because we don’t like his shoes. And these days most of us are sufficiently conscious of cultural differences that we will make the pragmatic adjustments that justice requires. What I find far more troubling is our failure to make the adjustments that are just as necessary for invisible differences: people who look like us, dress like us, speak like us: but don’t quite think as we do. They may be the Neinsager I discussed in The heroism of no. It is the Peter Grimeses, not the Othellos, who have most to fear from a jury of their “peers”.

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