The decision in R v D (R) attempts to balance the right to manifest a religious belief, the discomfort its removal might cause and the steps the court may be able to take to mitigate that discomfort against the principles of open justice and the requirements of a fair trial. The judge’s conclusion was that in general “the defendant is free to wear the niqaab during trial. The judge should nonetheless, in the absence of the jury advise the defendant of the possible consequences of doing so, and make it clear that she will not be free to do so while giving evidence”. [82] In Judge Murphy’s view:

“It is unfair to expect the juror to try to evaluate the evidence given by the person whom she cannot see, deprived of an essential tool for doing so: namely, being able to observe the demeanour of the witness; her reaction to being questioned; her reaction to other evidence as it is given. They are not trivial or superficial invasions of the procedure of the adversarial trial. At best they require a compromise of the quality of the criminal justice delivered by the trial process. At worst, they go to its very essence, and they may render it altogether impotent to deliver a fair or just outcome”. [59]

Is it necessary for fact finders to observe the demeanour of witnesses and defendants in court? Is there a principle of visibility?

Going back

Clarke v Edinburgh and District Tramways Co Ltd 1919 SC (HL) 35 is often cited as authority for the importance of observing witness demeanour and the appellate court’s deference to trial courts’ evaluation of witness testimony, the court having heard and seen the witnesses give evidence. In Clarke Lord Shaw spoke of the advantages of seeing manner, hesitation, nuance of expression and “even the turns of the eyelid” when assessing witness credibility. In Simmons v British Steel Plc (Scotland) [2004] UKHL 20 Lord Hope said “As everyone knows, the personality and demeanour of witnesses which printed words alone cannot capture plays a large part in an assessment of their credibility.”[9]

It is interesting to note that being blind is no bar to being a ‘fact-finder’. Famously Sir John Fielding (1721-1780) was known as the ‘Blind Beak of Bow Street’. Former Home Secretary David Blunkett said of his experience as a juror at Sheffield Crown Court, “Initially, I was concerned that my blindness might be a problem when it came to seeing the evidence, but the only difficulty I had — one experienced by fellow jurors, too — was how hard it was to hear the evidence given by the witnesses and the accused. With no microphones available, they were constantly asked to speak up.” (Daily Mail, 20 May 2011).

Questions of science

The science of reading faces and other body language is relatively new. Albert Mehrabian (now an Emeritus Professor of Psychology) and colleagues undertook research in 1967 which has been mistakenly taken as meaning communication is 7% words, 38% tone of voice and 55% body language. Mehrabian said in 2002, “From the very beginning I have tried to give people the correct limitations of my findings. Unfortunately the field of self-styled ‘corporate image consultants’ or ‘leadership consultants’ has numerous practitioners with very little psychological expertise”. The interpretation of non-verbal communication is not as simple as a 7:38:55 rule but the attraction of such a formula is obvious. Human beings want to find keys to unlock the complex code that is verbal and non-verbal communication. In addition we want to believe we can spot the liars and the truth tellers. It would be comforting to think there are certain give away signs but if there are, science hasn’t found them yet. Some judges and lawyers may believe that they have developed expertise in this area and we all place faith in the fact that twelve jurors will be able to spot deceit. The scientific evidence suggests we should be cautious. Liars and truth tellers may well exhibit signs that they are under stress, the former because they do not want to get caught and the latter because they want to be believed, but it is very easy to confuse the two.

People have a “tendency to be overconfident in their ability to detect lies” (see generally Aldert Vrij’s excellent Detecting Lies and Deceit, 2008). Specific training on detecting deceit can help a little; however the way cross-examination is taught (telling not asking, and not letting the witness explain) contrasts starkly with the research which suggests that lies are easier to detect if the questioner does not reveal suspicion and uses an information gathering style which elicits longer answers from the witness.

The science of understanding decision making bias is also giving us new insights. “Over the years, research has identified a number of confirmation biases by which people tend to seek, perceive, interpret, and create new evidence in ways that verify their pre-existing beliefs” (Saul M. Kassin, Itiel E. Dror, Jeff Kukucka: ‘The forensic confirmation bias: Problems, perspectives, and proposed solutions’, 2013). Experiments with expert finger print analysts have shown that even their findings can be biased as a result of perceptions created by contextual information. In 2006 Dror and Charlton presented “six latent fingerprint experts with eight pairs of prints from a crime scene and suspect in an actual case in which they had previously made a match or exclusion judgment. The participants did not know they were taking part in a study, believing instead that they were conducting routine casework. The prints were accompanied either by no extraneous information, information that the suspect had confessed, suggesting a match; or information that the suspect was in custody at the time, suggesting exclusion. The results showed that contextual information in the custody condition produced an overall change in 17% of the originally correct match decisions.”

Could the context of assessing demeanour create bias in the observer? Probably. If a person is seen biting their lip, looking down and avoiding eye contact as they shift on their seat what does that indicate? Is our interpretation biased depending on whether we are seeing a witness for the prosecution or the defendant in the dock? Would we change our attitude if we understood that they had an autism spectrum disorder (ASD)? The Court of Appeal was correct to strike a note of caution in R v Dixon [2013] EWCA Crim 465. The trial judge said that when deciding that the defendant who suffered from learning difficulties and attention deficit hyperactivity disorder (ADHD) was well aware of what he was doing at the time of committing the offence, he relied on his observations of the appellant’s demeanour in court during the trial. The Court of Appeal thought ‘it may not have been appropriate to read anything into the Appellant’s behaviour in court, although we are not entirely clear what particular behaviour the judge had in mind.’ [107].

In another case ‘a 19 year-old with ASD, a much younger developmental age and behavioural problems was allowed to give most of her evidence with her back to the video link camera. She whispered her replies to the Registered Intermediary who relayed them to the court’ ( Clearly this was a special arrangement but in a typical courtroom set up there can be obstacles to observing demeanour. The courtroom induces fear and anxiety in many which in turn can affect facial expressions and body language. Some witnesses will have undergone witness familiarisation which can increase confidence and thus affect demeanour. The physical surroundings have an impact; the witness box/dock shields more or less of the witness depending on how tall the person is. Some witnesses will give evidence over live-link and the quality of audio and video varies greatly. Some witness’s faces are partially obscured by hair styles/ beards/ glasses and the opportunity to observe body language can be affected by the way they stand, where they place their hands and even how they hold their heads. Sometimes testimony is given through interpreters and unless you happen to know the first language of the speaker it is impossible to analyse the verbal and non-verbal communication simultaneously.

Judge Murphy made clear at the outset that he was only addressing the case of a defendant before the Crown Court. [7] He was not addressing the situation when a woman wearing a niqaab attends as a witness, or as a juror, or as an advocate. [8] Nor was he addressing generally the wider questions of visibility and assessment of demeanour.

Science and progress?

Whilst many of us will feel instinctively that we want to be able to see witnesses and defendants, this may be because we overestimate our objectivity and expertise in interpreting ‘demeanour’. Science continues to explore body language, face reading and bias in courtroom decision making and further research with mock juries would be welcome. Does seeing/not seeing the witness and defendant affect the fairness of the trial? Research findings may shape legal procedures, the layout and the use of technology in courtrooms of tomorrow. Perhaps hearings do not need to be so ‘face-to-face’.

The ruling in R v D (R) is not binding and the judge himself hoped that ‘Parliament or a higher court will review this question [regarding face veils in court] sooner rather than later and provide a definitive statement of the law to trial judges’ [12]. Parliament would do well to consider the importance (or not) of visibility and assessment of demeanour.

HHJ Murphy’s decision is available at:

Penny Cooper Professor of Law at Kingston University and Chair of the Management Committee of The Advocate’s Gateway