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Failure to Remove Face Covering Without Special Justification

Failure to remove a face covering is an offence under section 19B of the Law Enforcement (Powers and Responsibilities) Act 2002 which carries a maximum penalty of:

  • 12 months in prison if the requirement falls under section 14 of the Act, which relates to drivers, passengers and owners of vehicles providing identity information, or
  • A fine equivalent to two penalty units in all other cases.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were required by section 19A of the Act to remove a face covering,
  2. You failed or refused to do so, and
  3. You did not have special justification for your failure or refusal.

A ‘face covering’ is defined as an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen, whether wholly or partly.

Section 19A of the Act empowers a police officer to require the removal of a face covering to enable the officer to see a person’s face if the person has:

  1. Been lawfully required to remove the covering to provide photographic identification, or
  2. Otherwise been lawfully required to remove the covering to identify themselves or provide identification particulars.

An officer may require the removal of a face covering whether or not the person has already provided photographic identification and/or identification particulars.

‘Photographic identification’ includes a driver licence, photo card or other form of photo identity card, any other licence, permit or authority and any other prescribed identity requirement.

An officer who requires the removal of a face covering must, as far as reasonably practicable, ask for the person’s cooperation and conduct the viewing in a way that provides reasonable privacy if the person requests it, and undertake the process as quickly as reasonably practicable.

A person is considered to have complied with the request for removal if the person removes only so much of the covering as to enable his or her face to be seen.

A ‘special justification for not removing a face covering applies if a person has:

  1. A legitimate medical reason for not removing it, or
  2. Any other excuse of a kind prescribed by the regulations.

A person bears the onus of establishing a special justification ‘on the balance of probabilities’; meaning it is more likely than not the justification applies in the circumstances.

General legal defences to the offence of failing to remove a facial covering include duress, necessity and self-defence.

If you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.

You are entitled to an acquittal if the prosecution is unable to do this.

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