The veil and the courts: Who says facial expressions never lie?

Fidgeting may indicate mendacity. Or it may just reveal a person terrified of being thought dishonest

(Getty Images)

A lot of non-Muslims have trouble with the terminology attached to the different forms of Islamic dress worn by some women. Niqab, hijab, chador, burka: it’s a lot to keep straight in your head, and one can only feel sympathy for those who struggle. It is, perhaps, with those people in mind that Ken Clarke has settled upon his latest cut-the-crap wheeze: sod the differences, just refer to the thing as a bag.

That, at any rate, is the conclusion that you might draw from his weekend appearance on the radio, which he used to add his two penn’orth to the endless debate about the suitability of such sartorial choices to the courtroom. As so often, he sounded like a confused but genial explorer who believes himself to be in foreign climes before realising with a start that he is, in fact, at home. “I do think it’s a most peculiar costume for people to adopt in the 21st century,” he said. And if we raise an eyebrow at the loaded word “costume”, it is as nothing compared with the later observation that “it’s almost impossible to have a proper trial if one person’s in a kind of bag”.

Much of the attention that Clarke has drawn has dwelled on the belittling implications of his particular choice of word. Cristina Odone, for example, wondered whether he would refer to a nun’s habit as a bin liner. In fact, though, the complexity of the debate on the veil in general obscures a narrower, but much more significant, point for the courtroom in particular. Ken Clarke, like many others, suggests that a defendant with a covered face makes it impossible properly to assess the evidence. The only problem is that this doesn’t seem to be true.

We shouldn’t be too harsh on the former Chancellor. After all, he is only mimicking the judge who ruled that a defendant should be obliged to remove her niqab when giving evidence back in September. “If a fair trial is to take place,” Judge Peter Murphy wrote, “the jury… must be able to assess the credibility of the witnesses – to judge how they react to being questioned.” He, in turn, approvingly quoted a New Zealand judge who listed some of the situations in which a witness’s demeanour might be a giveaway. “The witness who moves from expressing himself calmly to an excited gabble,” for example; “the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet.”

This all sounds sensible enough. All the same, considering that the basis of the decision against the veil was that it would make it harder to assess the defendant’s truthfulness, you would think that Judge Murphy would cite some evidence to support his case. Instead, he takes it as a given. And he makes the telling observation that the importance of the facial expression “is too deeply rooted in our criminal justice system to be set aside absent compelling evidence”.

As it turns out, though, the evidence is pretty compelling. According to a paper by Hazel Genn, a professor of Socio-Legal Studies at University College London, research tends to find that people correctly spot lies only between 45 and 60 per cent of the time. Likewise, a meta-analysis of jury research (cited in a post by another UCL professor, Richard Moorhead, on his blog Lawyer Watch) reported that not only did seeing a face not help assess a person’s truthfulness, it could actually be misleading.

One is reminded of that New Zealand judge who suggests that gabbling and hesitating can suggest mendacity; the problem, the study said, is that assessing a face can distract “people into looking at cues they think are associated with lying, and overlooking cues that actually are”. Fidgeting may indicate a lie. But it may very well indicate a truthful person who is terrified of being thought dishonest. I will never forget the greatest injustice I have faced personally: the time, aged nine, that I was fingered for stealing biscuits from the break-time box. I had done no such thing. But as our teacher confronted each of us, my mind whirred at the horrible possibility of being wrongly accused, and I turned a deep and incriminating shade of red.

These points were made, by Moorhead and others, shortly after the original ruling was published. But they didn’t cut through at the time, and I don’t suppose they will now either. This idea isn’t, after all, only disconcerting in a legal setting. We are accustomed to thinking of faces as indexes of personality, of the eyes as the windows to the soul; stripped of these convictions, we are left with a troubling reminder of how difficult true intimacy, true knowledge of another, really is. This is why the word “bag” is so telling. It suggests that it is not a Muslim woman’s face that is being covered, but her essence that is being contained.

There may be another reason that the canard of the liar’s tell is so persistent in this case. On such fraught territory, it is a great relief to be able to fall back on an argument so entirely divorced from controversial concerns of multiculturalism, misogyny and freedom of choice. It made it possible for the judge to issue a ruling that could be greeted warmly by those on both sides as a sensible compromise. Take that away, and we are left with a far more difficult question. Perhaps we still won’t want women wearing the niqab when giving evidence. But if that’s the case, we should at least be honest about the rationale: this is not about justice. It is about culture.

Twitter: @archiebland