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
(1)
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.
Right attitude
Do not hand over your cards, and if you've got nothing to hide you shouldn't want to be intruded on, or be interfered with when you're taking your pictures. See a film on this subject, Freedom to Film, http://www.worldbytes.org/programmes/013/013_003.html
I think that the law must be
I think that the law must be interpreted based on the intentions of the powers that wrote it. Context is key in applying the law accurately, as laws were written to convey meaning.
Pepper vs Hart
I had to look this case up last week to understand Neiljohn's posting, and it seems I am not alone, so here's an explanation. Pepper vs. Hart overturned the general principle that the law must be interpreted strictly according to what it actually says, without reference to the intentions of Parliament when the law was constructed or any other external authoritative reference such as letters or memos written by the legislators.
In this particular case, that limited view was overturned and statements by ministers concerning what they had wanted the law to achieve were ruled admissable and allowed to influence interpretation of statute, leading to a successful defence.
So I think Neiljohn meant some of the apparent harassment of photographers could perhaps be challenged by reference to what Parliament has passed various terrorism laws for and what it wanted to achieve - which wasn't persecuting photographers but suppressing terrorism.
Photorights admin
Maybe eye-fi can help
No, iPhones use SIM cards and eye-fi cards are SD cards. However, an iPhone can e-mail photographs taken on its 2M-pixel camera.
@ Jeff Parks
I can see why it might seem a reasonable power as it allows police more time and facilities to examine 'documents' without having to arrest a suspect. No doubt that is the intention of the bill. Initially I thought this didn't leave much to say about this.
On closer inspection it seems to contain a non-sequitur. The context of this power of seizure appears to be a search that turns up no evidence and that in all respects satisfies the officer that his suspicions were unfounded, else he would arrest and gain PACE powers of seizure. But under this Bill he can retain the documents for up to 96hrs anyway, just to make sure. That appears to undermine 'reasonable suspicion' and turns the seizure into a fishing trip. It also allows the putative terrorist free to walk away.
I base my comments on observation and experience of PACE searches, where reasonable suspicion seems to be tenuous in practice. EG searches for drugs have quite often been applied to almost anyone attending a music festival or on the basis of bad hair or walking past the wrong house, searches for weapons can be applied to anyone attending a football match, or for that matter any teenage male. I've personally been searched for drugs on the grounds of haircut (the policeman found a promising wrap of silver paper that contained a Polo mint). On another occasion I called to see a friend and yelled through his letterbox but he'd already left to go to the library without me. This was reported by a neighbour and I was searched (for presumably stolen goods or burglary tools - I wasn't told). Reasonable suspicion? Probably, but wrong. Rules get broken.
And we have the context here of the Met's campaign to encourage the public to report photographers who seem 'odd' as possible terrorists. Are not s.43 searches a a probable outcome?
I recognise that s44's tactical value (harassing the sheep in order to frighten away the wolves) has been deemed legal, but it's a bad idea nonetheless in PR terms and in use of resources. I know of people who have been searched and affably informed they have been targeted purely to create an acceptably balanced racial demographic in the reporting. Legal or not, it's an unwarranted interference, and that is the basis on which many photographers are objecting, especially around Westminster where anyone with a vaguely pro look seems to be targeted repeatedly. It feels like harassment to many press photographers, even if proving it is impossible.
As for s.43 potentially being misused, and along with it the ability to seize flash cards etc, obviously I'm speculating. I can imagine certain events, such as G8 meetings, or major public order events, where blurring of boundaries would be expedient. The police already fail to discriminate between demonstrators and press on occasion (notablly within the SOCPA restricted zone around Parliament), and a great deal of FIT monitoring effort is deployed against press photographers and video crews. For some years the Met has been complaining about the numbers of people carrying the National Press Card and critical of the vetting. Whether they accept the NPC as proof of identity is, as far as I can see, a matter of what they find most convenient at the time.
I've seen this claim reported in the press, so was surprised to see current Met figures are running at around 12,000 s.44 searches per month in 2008 (see link in OP), around 5-6x as many as in 2005 and 2006 (then around 23,000/year). The 'reduced' claim appears to originate with Carlile's 2006 report, and is now obsolete.
With the frequent revision of detention powers, this time around to 42 days, we seem to be recreating NI internment bit by bit. Replicating powers created to deal with a suppressed civil war to the mainland does rather indicate the terrorists have won.
I think you are rather missing the practical point, that law on the street is whatever the policeman says it is. Imaginary obstruction (either of the footway, or of an officer's performance of his duty) have been very widely deployed against journalists and photographers, and the threat of arrest used to curtail coverage. I have personal experience of this, have been at events where police primary objective has been to remove everyone with a camera within "3 minutes or you will all be arrested for obstruction and spend the next few hours in the back of a van". I've also been threatened with arrest for photographing from well behind a police cordon. Seldom are charges brought, and even less often does a court case result. Where they do, the natural inclination is to believe the police.
Let me spell out how this bill might play out in what will usually be a public order or protest situation where police do not want photographers around. Any resistance to cooperation - either by leaving a scene when ordered, by photographing when told not to, or by failing to produce convincing ID (and press cards are often not accepted as such), any of those things could plausibly arouse a 'reasonable suspicion' that the photographer is a terrorist and merits a s.43 search. Any objection to displaying their photos for inspection could then result in seizure of the memory card or camera or laptop. Most of this will not culminate in arrest or charges, just as obstruction seldom does now. To imagine they will, and will end up in court where a reasoned debate can hold police to account, is to misunderstand how things work.
Dissent and terrorism are usefully fuzzy overlapping concepts. A policeman making a snap judgement (sic) in the midst of a confused and possibly violent situation will get a lot of latitude from the courts : how can he tell whether someone is exercising their legal right to peaceful protest or has more sinister ulterior motives? Clearly their photos will be informative about their presence and motives. s.43 search will be useful and easy to justify, as far as I can see.
No doubt that is why the power of seizure is provided. But this is potentially such a useful workaround to PACE special procedures that I find it hard to believe it will not be misused. We know that police often wish to view or acquire material. If they have to go to court to gain access the judge will balance public interest in the prevention or detection of crime against the press's freedom to report stories. The police are entirely focussed on the former, and it's simply unrealistic to expect them to restrain their use of a power of seizure out of regard for press freedoms that they often consider inconvenient or hostile.
That is surely nonsense. I am asking questions, speculating what may happen if this new bill is enacted as written. How can we have any sort of debate about possible outcomes if merely mentioning them sets expectations?
Since 2000 there have been many incremental additions to anti-terrorist law and it seems - empirically and anecdotally - that there has been a substantial negative effect on photographic freedoms. There appears to be very little basis for this shift in fact : terrorism and photography are related, if at all, in much the same way that terrorism and telephones are related, and probably sibstantially less. We do not yet have police on the streets asking who you're talking to and why, yet we do have routine interrogation of people taking photos. Though it wouldn't surprise me if s43 and these seizure powers will also be deployed to trawl SIM's in mobile phones...
As for 'lawful resistance with reasonable force' I would suggest this is a risky and unwise response in the circumstance of being mistaken for a terrorist. Most people will prefer to hand over their flash cards and argue later, if at all.
Photorights admin
Pepper V Hart?
Perhaps a challenge using the Pepper V Hart approach is required to decide what was the true intent of Parliarment?
You can't polish a turd, you can roll it in glitter and even dress it up as something else, but in the end it still stinks to high heaven!
"Power" v ineptitude
No matter how clear the definition of "reasonable suspicion" may be, the law will still be abused when it hits the street.
Re: Legitimate photographic restrictions.
"What constitutes "reasonable" suspicion of being a terrorist?"
Quite a lot more than just being a Muslim. The lead case on this is now that of Mohammed Raissi, brother of exonerated pilot Lotfi, the first person to be arrested in connection with the 11th September hijackings.
From that judgment:
In my judgment, the case of Mr. Mohamed is quite different. He was simply thought to be the close brother of a major suspect and the two lived geographically fairly close to each other; each had access to the home of the other in this country. Mr. Bredo knew that his superiors thought that he was a suspect, but he knew no more about what that view was based upon than the material which I have mentioned. Mr. Bredo says that he was influenced by an opinion that family links played a part in terrorist activity, but he was unable to give any reasons of substance for this opinion. On analysis, Mr. Mohamed was arrested because Mr. Bredo knew he was the brother of a suspect and that their relationship was close. In my judgment, those grounds were not sufficient to justify the arrest. (Again, for the reasons given above, I do not accept that Mr. Bredo was entitled to act on surmise as to additional information that senior officers might have but which was not passed on to him.) I have not the slightest doubt, however, that Mr. Bredo acted in entire good faith and in a professional manner in compliance with his instructions, but that does not provide the Commissioner with a defence to Mr. Mohamed's claim.
Raissi v Commissioner of Police of the Metropolis
http://www.bailii.org/ew/cases/EWHC/QB/2007/2842.html
Section 43 usage statistics
These seem to be the only published stats:
Metropolitan Police Service
(October 2005 – September 2006)
114 Section 43 Terrorism Act 2000 stops conducted
(this power requires reasonable suspicion).
These resulted in 13 arrests, none of which were for terrorism-related offences.
And in the same period for s44:
Metropolitan Police Service
(October 2005 – September 2006)
22,672 Section 44 Terrorism Act 2000 stops conducted (accounting for 8% of all stops).
These resulted in 27 arrests for terrorism related offences and 242 arrests for other offences.
None of these arrests resulted in terrorism related charges.
http://www.mpa.gov.uk/downloads/issues/counterterrorism/ctld-22feb07.pdf
hand over your cards
10 years ago and I thought anyone suggesting this would be utterly mad.
I used to think David Icke was mad too, but im totally back tracking and it makes sense.
After watching Doctor Who.... I can see it now... Aliens land in the middle of London. A professional and well published photographer gets exclusive pictures of the first aliens to land on this planet. However, the authorities want the event 'not to exist' - if the photographers hand over the cards under this law then surely the greatest ever picture taken will never be seen.
WHAT GETS ME IS THAT I HAVE HAD ARGUMENTS WITH PEOPLE WHO SIMPLY SAY IF YOU HAVE GOT NOTHING TO HIDE THEN WHY WORRY... sorry but I thought I lived in a civil country and not a communist member state in the 1900s.
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