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LEGAL ADVICE FOR ACTIVISTS

10. Face Masks

Contents

10.1 Introduction
10.2 The Legislation
10.3 Notes

10.1 Introduction

The police power to remove face masks was conferred by Section 60 of the Criminal Justice and Public Order Act 1994 (CJA). This was originally only available where a Section 60 CJA ‘stop and search’ authorization was in force, whereby a Superintendent had to fear acts of serious violence in a locality. So if there was no Section 60 – as on many demos - then the police could not demand that you remove your facemask. The police complained to the Home Office about this, who announced they would be changing the law as part of the much-vaunted “package of measures” against animal rights extremists.

10.2 The Legislation

Under the Anti-Terrorism, Crime and Security Act 2001, Section 60AA was added to the CJA. This states that where an officer of the rank Inspector or above reasonably believes

(a) that activities in any locality in his area may involve the commission of offences, and
(b) that it is expedient, in order to prevent or control those activities to give an authorization under this section,

then he may make a Section 60AA authorisation.

A Section 60AA authorisation confers power on an officer in uniform:

(a) to remove any item which the officer reasonably believes is used wholly or mainly for the purpose of concealing his identity and
(b) to seize any item which the officer reasonably believes any person intends to wear wholly or mainly for that purpose.

Failure to comply with a request to move a mask is an offence. It is triable summarily and is punishable by up to 1 month’s imprisonment or a fine.

Although this would normally means that it was a non-arrestable offence, it was added to the list of “arrestable offences” under Section 24 of PACE. This means that you could be arrested for failing to comply with a requirement to remove a mask some time after you allegedly committed the offence.

10.3 Notes

It is not in itself an offence to wear a mask or other means of concealing your identity. The offence is committed by refusing to hand such a mask over when required to do so by an officer in uniform.

This power is clearly a far wider power than under the previous law. It can potentially be applied on any protest, given the wide range of minor public order offences that could be committed.

Note that the power can also be used to seize any item of clothing that the officer reasonably believes you intend to wear. So the police could use the section to seize balaclavas or scarves before you have even put them on.
In bad weather, it will be hard for the police to argue that you are wearing a hooded top or hat “wholly or mainly” for the purpose of concealing your identity. Whether or not a hat or a hood conceals your identity will be a question of fact for the magistrates to decide.

The power is still exercisable, as before, whenever a Section 60 is in force as well.

If a disguise has been seized, you can get it back by writing to the Chief Constable of the relevant police force along with evidence of ownership. If further retention is not necessary for criminal proceedings then the item must be returned. The police must retain such items for 2 months before they may dispose of them.

The section cannot be used to prevent you from disguising your identity by other methods, eg face painting.

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