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Archives for : article 9

Religious Dress in Court: Religion v Justice

     One case that has been in the headlines recently is the case of Dawson.[1] In this case, a female defendant on trial at Blackfriars Crown Court for witness intimidation, Rebekah Dawson, asked to be able to wear a niqab, which included a veil covering her face, during her trial. There was no issue of identification in the case and Ms Dawson’s held the religious belief that she was required not to reveal her face to men who were not family members.

The Judge held that Ms Dawson was entitled to manifest her religion under Article 9, and the court would assume that this was a sincere request unless there was evidence otherwise, and that was not affected by differences of views within the Muslim community as to whether this was a religious requirement. However, this had to be balanced against the public interest in open justice and the trial process, which usually required witnesses to be seen so that their demeanour can be taken into account as part of the assessment of the credibility of their evidence. Thus the Judge ruled that Ms Dawson could wear her niqab in court but that she should remove it if there was any issue about identification and when giving evidence (when she could be shielded from the public but not from the Judge, jury or barristers).

The sequel to this ruling was that in the end, Ms Dawson decided not to give evidence.[2] The jury then failed to give a verdict. Before there could be a retrial, Ms Dawson admitted the charge, so the issue did not arise at a further trial.[3]

A balancing exercise of this sort is a good demonstration of the way the Act allows the courts to consider head-on the different interests at stake and take a view as to how they should be addressed. It is very much a cultural norm with UK courts that the focus is on oral evidence, and that the attitude of witnesses can be as much a  part of the assessment of their truthfulness as what they are saying. Thus, wearing a full veil interferes with that basic premise of a fair trial. In this case, the Judge went as far as he could to ensure that there was no unnecessary exposure on the part of Ms Dawson, up until the points where her religious rights conflicted with the interests of justice.

 

HR blog: Religion at Work – Eweida and others

The European Court has now considered a number of cases about the manifestation of religious beliefs at work: Eweida, Chaplin, Ladele and McFarlane[1].

The cases of Eweida[2] and Chaplin concerned the issue of wearing jewellery of religious significance, in both cases a cross. Ms Eweida worked for British Airways and Ms Chaplin  was a geriatric nurse. In both cases the English courts had held that there was no breach of Article 9 because the bans were justified.

In the case of Ladele,[3]  and  McFarlane, [4] employees complained that they were being discriminated against because they were required to provide services to same-sex couples which inconsistent with their own religious beliefs. Ms Ladele was a civil registrar, Mr McFarlane was a counsellor. In both cases, they lost before the English courts because the courts had to balance the employer’s own obligation to provide a service which did not discriminate against people on grounds of sexuality.

The European Court considered these cases together. The Court  held that there was no breach of Article 9 in the cases of Ms Ladele or Mr McFarlane: the employers were entitled to seek not to discriminate against same-sex couples, as this was itself an important interest protected by the Convention. However, a different balance applied in the cases of wearing a cross at work. There was a breach of Article 9 in the case of Ms Eweida: her right to manifest her religion was more important than the employer’s wish to project a corporate image, especially as the employer had allowed other religious clothing such as turbans and hijabs. But there was no breach in the case of Ms Chaplin: the importance of being allowed to manifest her religion was outweighed by the need for health and safety on a hospital ward, which was the basis for not allowing jewellery.

The Equality Act 2010 now provides more  of a one-stop shop for anti-discrimination legislation. However, here as well the balance will have to be struck between the rights of those affected and the need to prevent discrimination. The Convention rights will have to be taken into account, so the balancing exercise to be struck in respect of them will remain extremely relevant – and these cases suggest that the courts will have to be slightly more accommodating.



[1] Eweida and others v United Kingdom (2013) ECHR 012

[2] Eweida v British Airways plc [2010] EWCA Civ 80 [2010] IRLR 322

[3] Ladele v Islington LBC [2009] EWCA Civ 1357 [2010] IRLR 211

[4] McFarlane v Relate Avon [2010] EWCA Civ 880, [2010] IRLR 872