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


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

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Recruitment Genius: Business Manager

£32000 - £40000 per annum: Recruitment Genius: A Business Manager is required ...

Recruitment Genius: Operations Manager

£45000 - £55000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: Panel & Cabinet Wireman

£20000 per annum: Recruitment Genius: Panel Wireman required for small electro...

Recruitment Genius: Electronics Test Engineer

£25000 - £27000 per annum: Recruitment Genius: An SME based in East Cheshire, ...

Day In a Page

Read Next
Newspaper stands have been criticised by the Child Eyes campaign  

There were more reader complaints this year – but, then again, there were more readers

Will Gore

People drink to shut out pain and stress. Arresting them won’t help

Deborah Coughlin
A timely reminder of the bloody anniversary we all forgot

A timely reminder of the bloody anniversary we all forgot

Who remembers that this week we enter the 150th anniversary year of the end of the American Civil War, asks Robert Fisk
Homeless Veterans appeal: Former soldiers pay their respects to a friend who also served

Homeless Veterans appeal

Former soldiers pay their respects to a friend who also served
Downfall of Dustin 'Screech' Diamond, the 'Saved By The Bell' star charged with bar stabbing

Scarred by the bell

The downfall of the TV star charged with bar stabbing
Why 2014 was a year of technological let-downs

Why 2014 was a year of technological let-downs

Security breaches and overhyped start-ups dominated a year in which very little changed (save the size of your phone)
Cuba's golf revolution: But will the revolutionary nation take 'bourgeois' game to its heart?

Will revolutionary Cuba take 'bourgeois' golf to its heart?

Fidel Castro ridiculed the game – but now investment in leisure resort projects is welcome
The Locked Room Mysteries: As a new collection of the genre’s best is published, its editor Otto Penzler explains the rules of engagement

The Locked Room Mysteries

As a new collection of the genre’s best is published, its editor explains the rules of engagement
Amy Adams on playing painter Margaret Keane in Tim Burton's Big Eyes

How I made myself Keane

Amy Adams hadn’t wanted to take the role of artist Margaret Keane, because she’d had enough of playing victims. But then she had a daughter, and saw the painter in a new light
Ed Richards: Parting view of Ofcom chief. . . we hate jokes on the disabled

Parting view of Ofcom chief... we hate jokes on the disabled

Bad language once got TV viewers irate, inciting calls to broadcasting switchboards. But now there is a worse offender, says retiring head of the media watchdog, Ed Richards
A look back at fashion in 2014: Wear in review

Wear in review

A look back at fashion in 2014
Ian Herbert: My 10 hopes for sport in 2015. Might just one of them happen?

Ian Herbert: My 10 hopes for sport in 2015

Might just one of them happen?
War with Isis: The West needs more than a White Knight

The West needs more than a White Knight

Despite billions spent on weapons, the US has not been able to counter Isis's gruesome tactics, says Patrick Cockburn
Return to Helmand: Private Davey Graham recalls the day he was shot by the Taliban

'The day I was shot by the Taliban'

Private Davey Graham was shot five times during an ambush in 2007 - it was the first, controversial photograph to show the dangers our soldiers faced in Helmand province
Revealed: the best and worst airlines for delays

Revealed: the best and worst airlines for delays

Many flyers are failing to claim compensation to which they are entitled, a new survey has found
The stories that defined 2014: From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions

The stories that defined 2014

From the Scottish independence referendum to the Ice Bucket Challenge, our writers voice their opinions
Stoke-on-Trent becomes first British city to be classified as 'disaster resilient' by the United Nations

Disaster looming? Now you know where to head...

Which British city has become the first to be awarded special 'resilience' status by the UN?