THIS ARTICLE HAS BEEN REWRITTEN TO CORRECT ERRORS OF FACT.
The 2008 Counter Terrorism Bill has seldom been out of the headlines in recent months for its controversial proposal to detain suspects for up to 42 days without charge.
There is another provision buried within this bill that seems to have attracted little attention and even less comment. The new Bill will allow police performing a S43 search under the Terrorism Act 2000, to seize and retain for examination any 'document' found. A document is defined at S9 of the new bill as "any record and, in particular, includes information stored in electronic form'.
That means memory cards, cameras and mobile phones, PDA's, laptops - anything containing digital information, as well as letters, notebooks etc. will be able to be removed and kept by police for up to 4 days even though no offence has been committed.
Power to remove documents for examination
This section applies to a search under any of the following provisions—
(a) section 43(1) of the Terrorism Act 2000 (c. 11) (search of suspected terrorist);
(b) section 43(2) of that Act (search of person arrested under section 41 on suspicion of being a terrorist);
(c) paragraph 1, 3, 11, 15, 28 or 31 of Schedule 5 to that Act (terrorist
Section 43 referred to above reads:
43 Search of persons
(1) A constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.
Under existing law PACE1984 has restricted the objective of S43/S44 searches to "Articles which could be used for a purpose connected with the commission, preparation or instigation of acts of terrorism" (although offensive weapons, drugs, theft tools or stolen property are far more usually found). Discovery of these would normally result in arrest, and the items would be retained as evidence.
Under the proposed Bill the 'reasonable suspicion that the person is a terrorist' that empowers the search is sufficient to justify seizure 'for the purpose of ascertaining whether a document is one that may be seized', a bizarrely recursive concept. The officer 'may remove the document to another place for examination and retain it there until the examination is completed'.
As with S43 search itself, no arrest will be necessary to retain 'documents', and the policeman is empowered to demand you make them available in a form in which they can be viewed and taken away. Obstruction of seizure will be an offence punishable by up to 51 weeks prison and a fine, so tucking your Compact Flash card down your sock may not be the best idea.
S43 and S44 stop and search
Most police searches of photographers are carried out under s44 of the 2000 Terrorism Act. This permits the blanket stop and search of anyone present within a designated area with no requirement for suspicion. For example all of London is at present a designated area and some 12-13,000 S44 searches are being carried out each month in London alone.
The arbitrary targeting of photographers especially within the restricted area around Westminster and the more prejudicial use of s44 at demonstrations has helped to create a groundswell of alarm among amateurs and professionals alike. The perception is that police view s44 as a useful tool of harassment of behaviours that they dislike or find inconvenient but are perfectly legal. This is assisted by widespread confusion regarding the authority of PCSO's, who in some areas have delegated authority to stop but not to search, in others none. Both police and CSO's frequently exceed lawful authority by demanding that photography cease and/or images be deleted.
s43 stop and search is different in that it requires reasonable suspicion and is not restricted to any designated area. There do not appear to be any figures published about the use of s43, as it gets lumped in with stop and search under various other statutes such as searches for drugs, weapons, stolen property, crossbows and dead badgers etc. Needless to say, the criteria for 'reasonable suspicion' are usefully flexible. A combination of loitering and a heavy bag might well be enough.
This new bill provides police with the authority to seize photographs at the same time.
Once seized, cards may be retained for up to 48hrs and for up to 96hrs with the authority of a Chief Inspector. Copies may be made only 'for the purpose of producing it in a visible and legible form'. In theory the owner is entitled to ask for a copy but there are a whole set of reasons available to the police which will often mean this is refused.
Signifcantly, PACE special procedures do not apply to retained material. At present PACE special procedure rules protect bona-fide newsgatherer material by requiring a court order before police may gain access. Section 3 of the new Bill prohibits police removal and retention of 'legally privlieged' material but does not protect special procedure material, a distinct classification within PACE1984. Professional photographers already feel that they are sometimes subjected to s44 search to distract and deter them from covering events,. If stopped and searched under s43 instead, their photographs may be retained by police until deadlines have passed, and also used to assist police in the identification of offenders they may have photographed.
War on Photos part deux
The question is : will this prospect prove so tempting to the police that they begin to misuse s43 and this new power of seizure against photographers, in the same way they have misused s44, and laws against obstruction to curtail photography? They already arrest photographers for no good reason in order to get access to their material and copy it, according to solicitor Mike Schwartz of Bindman and Partners or simply put them in hospital, so deploying a little creativity over reasonable suspicion of terrorism in order to grab memory cards doesn't look too onerous or implausible.
It is worth remembering that in 2000 nobody had the slightest idea how s44 would be used, and there was no hint that legislation introduced to deter and apprehend murderous fanatics would be deployed against an 82 year-old heckler at the Labour party conference, demonstrators against an arms fair, a woman walking along a towpath or an 11 year old girl, let alone people taking photographs.
And the other question is : will police and PCSO's, let alone photographers and members of the public, have any clear idea of where the boundaries are and what is and is not allowed? Police, PCSO's and public are already quite capable of forcibly and wrongly insisting that cameras require a licence or that photos of people in the street require permission or that photographing children is illegal. The addition of a hazy certainty that cards and photos may lawfully be confiscated on demand seems sure to significantly worsen this already toxic mess.
This article has been rewritten 4 July 2008 to correct serious errors arising from a fundamentally dumb misunderstanding of the 2000 Terrorism Act (and being in too much of a hurry). Thanks to Jeff Parks for pointing out the errors and apologies for any FUD added by the original. It seems quite bad enough anyhow, even without.