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That incomplete list of events is not confined to any one group or political outlook. Each of these demonstrations generating different degrees of violence featured some participants whose faces were hidden. In some cases, the apparent ringleaders could be seen speaking into walkie-talkies or on mobile phones, presumably giving instructions to their

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troops. Quite often, the organisers of the event would complain that their peaceful protest had been hijacked by outsiders bent on trouble—the usual suspects from rent-a-mob and agit-prop. I have newspaper photographs of masked rioters who broke into the Foreign Office in 1997. On 14 April 1997, the Daily Telegraph reported that the organisers complained that:

On 15 December 1997, the Daily Mail captioned a photograph:

Not only is any violence in any circumstances in a public protest totally unacceptable, it is improper that the police should be unable to identify the perpetrators to enable them to be arrested there and then or, perhaps, at a later time when tempers have cooled. A rather futile attempt to solve the problem of masked rioters was made in the Criminal Justice and Public Order Act 1994, which gave the police power to require a person to remove any item which the officer was satisfied was being worn wholly or mainly to conceal the wearer’s identity. I say that that attempt was rather futile because in the riot in the City of London on 18 June 1999, damage worth some£2 million was done, some by persons who had been given £30 each, free transport and packed lunches. According the written replies given to my noble friend Lady Miller by the late-lamented Lord Williams of Mostyn, despite the huge amount of criminality at that event, a mere seven items were seized by the police from individuals, none of whom was arrested. In fact, no arrests were made under the provisions of that Act at that event.

I turn to the details of the amendment. Subsection (1) makes it an offence to wear or carry a mask or other form of disguise at any public assembly of various sorts. The mere carrying of a mask is an offence, because otherwise someone could simply whip it off and put it in his pocket as the police approached him. The wording of the subsection, including the penalties and the onus of proof, follows the wording of the Prevention of Crime Act 1953 and various subsequent offensive weapons Acts that have been on the statute book for more than 50 years, which the police regard as an effective tool not only for charging wrongdoers but for heading off crimes before they happen.

Subsection (2) provides for what may be regarded as necessary exceptions to the strict rule: the practice of sports fans painting their faces with their team colours; masks worn at carnivals or fancy dress events; and veils and similar garments worn by women for religious reasons. Subsection (1) also provides for a person to establish that he or she has a reasonable excuse. Perhaps a person has some facial disfigurement or is shielding him or herself from the weather. Those are all possibilities, but those issues could be decided by the courts. Whether sunglasses are a disguise is also a fact to be decided by the court. That may not be too difficult if the alleged offence

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occurred on a dull winter day, but I am aware that the fashionistas believe that shades, as they are called, are hugely attractive and appealing and wear them even on the darkest nights.

At the risk of incurring the wrath of my friends, I believe that the same applies to hoodies. That gave the Government some difficulty when Earl Carnarvon—again, late and lamented—raised an amendment to the Crime and Disorder Bill in 1998 with similar intent. The new clause provides that balaclava helmets, ski masks and motor cycle helmets worn by pedestrians, which are the disguises of choice of rioters, shall be regarded as disguises if the court or jury concludes that that is why they were being worn or carried. The police and security forces are exempted from the operation of the new clause in the same way as they are exempted in the various offensive weapons Acts.

Subsection (5) defines public processions, public assemblies and public meetings in the terms of the established definitions in the Public Order Act 1986. In accordance with the precedents of similar Acts, the amendment does not apply to Northern Ireland, which already has its own legislation on the subject. In the debate on Lord Carnarvon’s amendment in Committee on 31 March 1998, Lord Williams of Mostyn said that the government were “warming” to the idea. Eight years on, the time has come to do something practical about it. If he was warming to the idea then, I am sure that he would have been fully supportive now.

The amendment does not in any way inhibit the right to hold a peaceful—I stress the word peaceful—protest, rally or procession. That is a right that we all support, even when we fundamentally do not support its objectives. The amendment places an effective weapon in the hands of the police that will severely discourage ill-disposed persons from mischief. If it does not, it will enable the police to arrest them on the spot and charge them with a substantive offence. I beg to move.

Baroness Anelay of St Johns: My Lords, I am very grateful to my noble friend Lady O'Cathain for taking up the amendment on behalf of my noble friend Lady Miller. As my noble friend said, this debate has its roots long ago in previous discussions. It will be interesting to see just how government thinking has developed on these matters. I begin by making it absolutely clear that I believe that it is wrong for people to wear masks or other disguises at public protests with the specific intention of preventing the police from properly identifying them when they intentionally break the law by damaging property, committing an assault, engaging in public disorder or otherwise breaking laws that are already on the statute book.

However, my noble friend will not be surprised when I say that the problem lies in finding the best way to ensure that the police have the powers that will enable them to prosecute those who engage in public disorder or other criminal offences.

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9 pm

I note that the police already have the power, under Section 60AA of the Criminal Justice and Public Order Act 1994, to require a person to remove a mask if they go on a protest or engage in public assembly. My noble friend seeks to go further and make it a criminal offence strictly to wear or carry masks in certain circumstances. One of the difficulties flowing immediately from the point made by my noble friend is that she in no way wants to inhibit peaceful protest, which we all hold dear in this country. We have led the world in ensuring that people can protest peacefully, whereas the offence that is created here could be applied to people who are acting peacefully, even though they are wearing a mask. That is one of the difficulties of the amendment. I know that the amendment was tabled with the very best of intentions. It is very difficult to draft legislation. I certainly found it so, and I did not move my own happy-slapping amendment a moment ago, if I can call it that so familiarly, because I appreciate just how difficult it is to ensure that one has a penalty that does not catch the innocent along with those who have anything but innocent intentions.

I am sure that my noble friend will also understand that we have always been very reluctant to support government proposals in the years since 1997, when offences have been created with a reverse burden of proof. We prefer not to approach matters in that way where at all possible, and we are on record as attacking the Government for their attempts to introduce offences that rely on the use of a reverse burden of proof. Unfortunately, of course, that is the route taken by the amendment in its Subsection (1), so I am afraid that I have difficulty with the principle of the amendment.

The amendment would also have practical and apparently unfortunate consequences. For example, anti-war protesters have been known to wear George Bush masks, and Countryside Alliance protesters have been known to wear Tony Blair masks. Let us say that they behave within the current law and protest peacefully. I wonder whether in future they would automatically be guilty of an offence and have to prove in court that they had lawful authority or reasonable excuse to wear those masks. The courts would certainly be full. And what of those who wear masks because of a perfectly innocent fear of repercussions from family members or employers if they are identified as taking part in a protest, albeit a peaceful one in which they behave perfectly well? Should they automatically be guilty of an offence and have to prove in court that they had good reason to behave as they did? It could have unintended consequences.

My noble friend makes very sensitive measures to avoid some of the adverse consequences of proposed new Subsection (1), and I commend those measures, particularly those in her proposed Subsection (2), which would ensure that women who wear veils for religious reasons should not be caught by this proposed new offence. I certainly hope that Parliament will not take action to prevent the wearing of the veil. As my right honourable friend,

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David Davis—the shadow Home Secretary—made clear yesterday in a newspaper article, he for one would vote against any such law if it were ever brought before the House, as I would. That is a sensitive debate for another day.

The exemption does, however, highlight some of the many problems in achieving proportionality in this new offence. The exemption is for women only. In all seriousness—I am not being at all flippant—I wonder whether there might be a reason for also omitting to protect monks. I live in an area where there are monks on the street; certainly that is not an unusual sight in some parts of the country. They may protest on occasion—I am not sure whether they do—but I would not want them to be covered by the provision. I notice that those in the Box are looking a little puzzled, but perhaps I should not refer to them because they are not in the Chamber. I should say, rather, that there may be those who are puzzled that such an adverse consequence should arise. A monk’s cowl covers as much of the face as the hijab, which is on the list. Indeed, Subsection (1)(a) would specifically criminalise monks, because it refers to a cowl. I realise that that is not intentional.

Subsection (2)(a) lists veils, which puzzles me. The hijab does not cover the face but is included in the list, whereas the chador, which does cover the face, is omitted. It just goes to show that, despite all our efforts, there are different words around the world for items of clothing. Those words might change, and it is very difficult to list the proper definitions satisfactorily in primary legislation.

The added difficulty is that an exemption which refers to the wearing of a veil for religious purposes would put the onus on wearers to prove that they wear them for religious purposes, thus perhaps causing offence which might be justified. I also know that the exemptions in subsection (2) do not mention those who wear masks for medical purposes; for example, those who have been horribly burnt in terrorist outrages and train disasters. They sometimes have to wear masks for months in order to assist the healing process. I am sure that my noble friend has no intention that they should find themselves in court simply to give the reason why they were wearing a mask.

Those are just a few of my random thoughts that came to mind as I read the text of the amendment when it was published last week. I certainly have not sought to consult the police or the CPS on their views about the need for the new offence. I always leave the Government to do that and to inform us. I have, of course, tried to consult those organisations which commonly give us advice. Their approach is very much that the criminal activity that my noble friend is trying to address needs to be stopped; that is, people should not be able to get away with criminal activity merely by covering their faces. My noble friend is right to target that.

However, we do not think that, because of the way in which this new offence is drafted, we could support it: I do not think that it would achieve what my noble friend is trying to do. But it is right that the matter was raised at this stage and I hope that we will be able

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to talk about it on another occasion in a way that might achieve what my noble friend hopes to do.

Lord Thomas of Gresford: My Lords, the creation of an offence of this sort also carries with it the power to arrest. I do not think that it is practical or feasible to call on the police to arrest masked demonstrators in a large demonstration. As the noble Baroness said, we should just think of the number of people wearing Blair or Bush masks in an anti-war demonstration. To put on the police the task of arresting every person wearing a mask is impossible. However, the position is that anyone committing a public order offence or an offence of violence wearing a mask is in for it: it is a very seriously aggravating feature. A far better approach to this problem is to indicate its severity through the sentence passed on a person convicted of a serious public order offence while wearing a mask. That is a far better protection than bringing in a new offence of this sort. As the noble Baroness, Lady Anelay of St Johns, said, the reverse burden of proof would require the person concerned to prove their innocence. I do not think that that is a feasible way to proceed.

Lord Bassam of Brighton: My Lords, I share the concern expressed by the noble Baroness, Lady O’Cathain, in supporting the amendment originally put down by the noble Baroness, Lady Miller, to whom we on this side of the House send our condolences for her sad loss. We certainly appreciate that the police should have powers to deal with those who use face coverings to conceal their identity during public demonstrations. Demonstrators involved in intimidatory or violent protests often wear masks or balaclavas, as the noble Baroness said, which hide most of the face. As has been said, that can serve the double purpose of disguising identity and adding to a sense of heightened intimidation.

However, as has already been referenced, there are powers in place to deal with this issue in Section 60AA of the Criminal Justice and Public Order Act 1994, although the noble Baroness, Lady O’Cathain, said that she thought that they were insufficient. They were amended most recently in the Anti-terrorism, Crime and Security Act 2001. So, the current situation is that if the police believe that activities may take place in an area that may involve the commission of offences, an officer of or above the rank of inspector may give an authorisation for police officers within a given area for a period of up to 24 hours. Within the area and for the period, the police officer has the power to require the removal of face coverings worn for the purpose of concealing identity and to seize any such items. The officer must be satisfied in each case that the face covering is being worn wholly or mainly to conceal identity.

These powers are not restricted to public assemblies or processions, although the police are most likely to use them in those situations. For example, earlier this year the police issued warnings under Section 60AA for the removal of face coverings during a confrontation between hunt stewards and anti-hunt protestors. The new clause is limited to

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situations involving large gatherings of people, so it would be of little use where, for example, individuals wearing balaclavas are congregating and the police anticipate that they may be planning a fight. It is defective in that sense.

There are a number of other defects with the proposed new clause. By making it a substantive offence for a person to wear a mask, cowl, disguise or even carry or possess a mask, the new clause treads on the difficult territory of definitions, which I think was the main focus of the concerns of the noble Baroness, Lady Anelay. What is actually meant by a “mask”, a “cowl”, a “disguise” or to “otherwise conceal” one’s features? A person could easily conceal their features by placing a wet towel on their face during a rally on a hot summer’s day. Their intention might be quite lawful—to cool down rather than to conceal their identity—but the new clause does not make this distinction and puts the onus on the individual to show that they had reasonable excuse to put a towel over their face or head. I have my own example of this. Thinking back, I recall going on a demonstration wearing a Groucho Marx mask with a flashing red nose and whirling bow tie. My intention was to add to the levity of the event, not to cause distress or intimidation. It certainly made the police officers laugh. Questions of definition and appropriateness come to mind. Another example might be someone attending a sporting event on a cold day. They might put a scarf around their nose and mouth to keep warm. Arguably they have concealed their features, but not necessarily with the intention of hiding their identity.

To our thinking, and supported by the noble Lord, Lord Thomas of Gresford, the wording of the current legislation is clearer in that the police can require a person to remove any item which the constable reasonably believes they are wearing wholly or mainly for the purposes of concealing their identity; that is, it is the constable’s judgment that the person is intending to conceal his identity.

Subsection (2) cites a number of exceptions to the offence, but in doing so makes the offence confusing and difficult to enforce. Subsection (2)(b) excludes the wearing of masks,

from the offence. While I can see the sense in ensuring that participants in a carnival, most of whom will be wearing decorative costumes and headgear, are not caught, the same cannot be said of onlookers or a general crowd, some of whom might be minded to cause trouble. They might find the wearing of masks very useful indeed.

Subsection (2)(c) provides a defence for,

That is an understandable exemption, but there could be significant issues with it. The Government recognise that requiring Muslim women to remove their veil is sensitive. The Police and Criminal Evidence Act 1984 Code of Practice A draws attention to the need for caution in respect of face coverings which are worn for legitimate reasons, such as the wearing of veils by Muslim women. The officer must be satisfied in each case that the face covering is

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being worn wholly or mainly to conceal identity before he requires a person to remove the item. The code also advises that where there may be religious sensitivities about the removal of such items, the officer should permit the item to be removed out of public view. The code goes on to advise that, where practicable, the item should be removed in the presence of an officer of the same sex as the person and out of sight of anyone of the opposite sex.

9.15 pm

The noble Baroness, Lady Anelay, very trustingly said that she left it to the Government to seek the views of police officers on law enforcement. That is quite proper. We have sought the informal view of the Association of Chief Police Officers, which points out that, operationally, there is little pressure for such a provision from officers responsible for policing such incidents. The existing legislation is regularly utilised and appears to be effective in dealing with individuals wearing masks or other items used to frustrate means of identification.

The Government believe that police powers should be targeted at events where crimes are likely to take place. We also believe that it should not be a criminal offence per se to wear a mask or other face covering. Rather, a police officer should have the power to require a person whom he reasonably believes is using a mask or other face covering to conceal his identity to remove it and to seize the item. If the person refuses, that person is then committing a criminal offence. The policing of public events is a delicate balance between protecting the rights of those going about their lawful business and permitting lawful protest. The police at the scene of any protest or public rally are best placed to anticipate whether offences are likely to be committed and whether demonstrators are using facial coverings to conceal their identity.

I have already covered the points on legislation and I do not wish to rehearse the arguments again. I am grateful to the noble Baroness, Lady Anelay, for the sensitive way in which she raised, and put on one side, the issue of veils. In broad measure I agree with what she said on the subject. I accept that the debate about the veil and the terms in which it has been conducted is entirely legitimate and I am sure we all have our own views on it. But that should not have a bearing on the outcome of the amendment. There is scope for confusion and the noble Baroness dealt with that very wisely when referring to its potential impact on different holy orders.

With those comments, I trust that the noble Baroness, Lady O’Cathain, will feel content to withdraw her amendment.

Baroness O'Cathain: My Lords, I am not so sure that I am that trusting. I thank all noble Lords who have taken part in the debate—my noble friend, the noble Lord, Lord Thomas of Gresford, and the Minister.

None of the three responses to the amendment takes enough cognisance of the fact that intimidation

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in peaceful protesting is quite a feature. I know, as I guard jealously the right to protest, that I would not take part in a protest march if there were people all around me wearing masks—because I would be intimidated for the very reason which forms the basis of this amendment. It would be obvious that some of the people wearing masks were intent on hiding their identity. Why should one want to hide one’s identity in a free country where we are allowed—encouraged in fact—to protest in freedom? It is a point worth making.

I absolutely agree with my noble friend Lady Anelay that the drafting is weak. I do not think for one moment that the amendment was drafted correctly, but I do think it was wise to try to establish the feelings of the House. There have been many occasions when the House has suddenly come to the conclusion that the drafting of amendments and clauses in Bills is weak, and they have been taken away and drafted again. I am not going into chapter and verse because we have all been here long enough to know that.

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