I have talked in my first two articles in this series about Police powers to stop and search members of the public under Section 1 of PACE 1984 (power to stop and search when there is reasonable suspicion that a person is carrying stolen/ prohibited articles or knives/blades), Section 23 of the Misuse of Drugs Act (when a person is reasonably suspected by the officer of being in possession of controlled drugs) and Section 60 CJPO 1994 (Powers to stop and search in anticipation of, or after violence, but without any targeted suspicion about the actual individual being searched)
A closely related power is also granted to Police officers under S60AA of the Criminal Justice and Public Order Act 1994, which allows a constable in uniform to require the removal of (and subsequently confiscate) ‘any item which the constable reasonably believes that person is wearing wholly or mainly for the purposes of concealing his identity’.
The power is only exercisable if authorisation has been given to the constable by a senior officer of Inspector rank or above. Similar to the stop/search power granted by Section 60 this is a power which enables an officer to interfere with a private citizen going about his or her business in an entirely lawful manner – it is certainly not against the law to wear a mask, hood, or other concealing headgear in public per se, and does not require the officer to have a reasonable suspicion that the person targeted is committing a criminal offence.
Sections 60 and 60AA of CJPO are generally powers used when officers are policing a large public gathering, march or demonstration, and fear that criminality might be about to occur by individuals disguising their identity. In this sense, they are pre-emptive rather than reactive powers, and can be used to target individuals on the basis purely of where they are, rather than what they are doing.
And once again it is a quite draconian power, interfering with normal civil liberties without any evidence of criminal intent at all on the person being required to submit to the power, and as such its use must be carefully monitored and controlled by the Police; there is plenty of opportunity for such a power to be misused either deliberately or accidentally by officers who either do not know, or do not care about the lawful extent of their powers in the ‘heat of the moment’.
The right of citizens to lawfully assemble and peacefully protest is enshrined in the UK’s unwritten constitution, the Common Law, as long as there is no threat of violence or any complete obstruction of a public highway, as it is in the USA’s written version and the European Convention on Human rights; and this right can come into conflict with the rights Police officers have, or believe that they have, under the CJPO and other Acts of Parliament.
Several years ago I acted on behalf of Mrs White (then aged 67) who was involved in a ‘Stop the War’ protest Manchester against the British and American invasion of Iraq.
During the lawful procession through Manchester Mrs White wanted to highlight the financial and human cost of the war. To this end she had had made a banner-sized Bank of England ‘cheque’ payable to ‘Oil Companies and Arms Industry’ which bore as the sum paid to text ‘Twelve billion pounds, the blood of one million Iraqis and the deaths of 300 British soldiers’. To make the political point that responsibility for the war in Iraq lay with the then Prime Minister the ‘cheque’ was signed ‘Gordon Brown’; In addition, Mrs White had also purchased a fitted rubber mask of Gordon Brown (‘the mask’) for theatrical effect and to emphasise her political point. In the many years of campaigning against the war on Iraq (and on Afghanistan) Mrs White had noted an ever greater need for creativity and innovation in order to attract the attention of the press and public. By wearing the mask and having the large ‘cheque’ on display she hoped that the aims of the Stop the War Coalition would be more readily reported by the press who, she hoped, would photograph her using such props for visual and political effect.
In full view of numerous police officers Mrs White had photographs taken of the cheque and of herself and others wear the mask. Not one officer made a comment, still less any complaint, to Mrs White or anyone else regarding the wearing of the mask. No officer suggested that the mask should not be worn at the procession.
Mrs White was a steward for most of the procession which passed peacefully along Oxford Road towards the Manchester Central Exhibition Centre (then ‘G-Mex’) in the city centre. While Mrs White was acting as a steward she wore a fluorescent yellow printed vest identifying her as such and other protestors wore the mask which still attracted no comment or complaint from any officer to anyone who wore it.
The procession was permitted to approach and stop outside the said Exhibition Centre where the Labour Party was holding its annual party conference.
In front of Mrs White at the head of the procession was a line of members of the group ‘Military Families Against the War’, mainly mothers whose sons had been killed in the war on Iraq or on Afghanistan. Rose Gentle, the well-known peace campaigner was part of the group.
Facing the military families and other protestors was a line of police officers who had in effect halted the procession, which was at the time quiet and orderly.
Mrs White (now wearing the Gordon Brown mask) went forward to include Rose Gentle’s husband in an invitation given earlier that day to stay at Mrs White’s home when she was next in Liverpool. Mrs White then moved to return to her original position. She walked away from her friend and was stopped by a female police officer who told her without giving any reason or explanation to take the mask off.
Mrs White asked why and stated that she did not think that it was against the law to wear a mask.
Mrs White was fortified in that view by the fact that at an earlier stage of the procession a police officer had asked her to remove the mask. She had asked why. The officer had replied “I’m not going to make a song and dance about it” and had walked away. Plainly, that officer had seen no reason to believe that he was entitled to remove the mask or that it would have been reasonable or proportionate for him to do so. In this earlier encounter, this officer had apparently accepted that she wished to continue wearing the mask and had made no attempt to dissuade her from doing so.
Now when Mrs White stated outside the Exhibition Centre that she did not think it was against the law to wear a mask, the Officer confronting her replied “It is today” despite the fact that Mrs White had worn the mask in full view of police officers on several occasions throughout the day.
Mrs White, thinking lightly of the matter, politely asked if she could see that in writing and explained that she had bought the mask on E-bay. Mrs White also observed that “It’s a free country and if I want to wear a mask I will”. During this very short conversation, Mrs White was not in the least agitated, angry or confrontational.
Without warning or explanation the officer then grabbed the mask and began to pull it with a firm grip of Mrs White’s hair underneath it. Mrs White was plunged into darkness and became disorientated. She was dragged a number of yards away from the body of the demonstration where she was pushed and pulled very roughly to the ground by this police officer and others. Mrs White felt a number of hands on her body. The mask was a tight fit and as such could not be easily removed. Police officers continued to pull at the mask and tear it from her head.
Mrs White held onto the mask in an instinctive reaction to the unexpected attack and the pain she was experiencing while the mask was being pulled from her head and her hair was being pulled with the mask.
Mrs White felt pain to her neck and to the base of her spine while this force was applied to her and again when she landed on the ground.
While Mrs White was sat on the ground at least two female officers were shouting at her in a very aggressive manner.
Mrs White, still on the ground, did not submit to the unlawful order to “Let go of the mask” which was shouted at her by one of the officers. That officer or one of the others called her a “Stupid woman”.
Officers then succeeded in forcibly removing the mask from Mrs White’s head.
No officer helped Mrs White get up from the ground or showed any thought for her wellbeing. Mrs White, shaking, angry and humiliated, immediately began to try to discover the identity of the officers who had pulled her to the ground so that she could make a formal complaint. She approached the line of officers ahead and asked for the names of those who had used force upon her. Police officers laughed at her and ignored her requests for information. Quite an act of hypocrisy by the guardians of the law who had in effect assaulted her to get her to reveal her identity.
Mrs White addressed the line of police officers stating in terms that they should be ashamed of themselves “To throw an old woman to the ground for wearing a bloody mask for God’s sake”. Mrs White could not believe that the police could treat anyone as they had treated her for wearing a comedic mask.
Mrs White avers that if she had been told or forewarned that if she did not comply with the request to remove the mask it would be ripped from her head then she would have voluntarily removed it.
At no time did any officer mention to Mrs White that the police had a power to forcibly remove masks or face covering or explain to Mrs White the authority to exercise such power and the officer’s note book entry suggested a misunderstanding as to the nature and extent of her powers. The officer recorded that ‘the Section 60 was in place and all facial coverings had to be removed’. (my emphasis) This therefore suggested that the officer believed that the mere wearing of a mask , absent any other reason, would be sufficient to give her the power to remove it.
I therefore argued that removal of the mask was unlawful because Mrs White was not acting in a manner which could activate the power under Section 60 CJPO 1994 –
Mrs White was not wearing the mask in order to conceal her identity.
No reasonable officer could have believed that Mrs White was wearing the mask for that purpose.
No officer claimed in any document to have believed that the intention or purpose of Mrs White in wearing the mask was to conceal her identity.
At numerous stages of the demonstration before its arrival outside the Labour Party Conference Mrs White had been seen wearing the mask for obvious theatrical and political effect.
Throughout most of the demonstration no officer objected to the wearing of the mask.
Throughout most of the demonstration no officer attempted to remove the mask.
Throughout most of the demonstration no officer suggested that at any future point in the demonstration the mask would have to be removed.
Given the circumstances, I advised Mrs White to pursue a claim for assault and battery. Following the issue of Court proceedings and only a short time before trial, I am pleased to report that Greater Manchester Police conceded that the officers had been wrong to remove the mask. They provided a detailed apology, substantial damages and paid Mrs White’s legal costs.
Here once again is a classic example of the Police breaking the law by not understanding, and in fact abusing, the extent of their powers to interfere with a citizen’s public business.