It is fascinating that the police themselves appear not to have read the legislation they are relying upon for hassling photographers in the name of freedom. Not for the first time the 'operational requirements' of the police (as supported and approved by Home. Sec. Jacqui Smith) are relying on powers that do not exist under s44 of the Terrorism Act 2000.
A Cleveland Police spokeswoman explained that 'if seen in suspicious circumstances, members of the public may well be approached by police officers and asked about their activities. Photography of buildings and areas from a public place is not an offence and is certainly not something the police wish to discourage. Nevertheless, in order to verify a person’s actions as being entirely innocent, police officers are expected to engage and seek clarification where appropriate.
In the same piece:
Any officer that suspect an offence has been committed has the right to detain you,' a Metropolitan press officer told BJP at the time. 'Because you are a press photographer does not preclude you from being stopped under section 44 of the Terrorism Act. If the officer thought the photographer acted suspiciously and especially if it was in a sensitive place, he had a right to detain and question the photographer.
Now I am not a lawyer, but you only have to read the CTA2000 to know that this wrong.. SUSPICION IS NOT GROUNDS FOR A S44 SEARCH. s44 empowers police only to conduct searches in designated areas where authorisation has been granted.
Here is what the law says:
1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search—
a) the vehicle;
b) the driver of the vehicle;
c) a passenger in the vehicle;
d) anything in or on the vehicle or carried by the driver or a passenger.
2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search—
a) the pedestrian;
b) anything carried by him.
3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.
4) An authorisation may be given—
a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;
b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;
c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;
d) where the specified area or place is the whole or part of Northern Ireland, by a member of the Royal Ulster Constabulary who is of at least the rank of assistant chief constable.
5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.
That's the whole of s44, and it doesn't mention 'suspicion' at all. The intention of Parliament with s44. is simply to deter terrorism by alowing random stop and search of anyone in a designated area.
If police suspect terrorist activity that is what s43 exists to deal with. s43 allows police anywhere to search anyone whom they 'reasonably suspect' of anything terrorist related. Importantly and unlike s44, s43 is open to legal challenge over the reasonableness of the suspicion.
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.
2) A constable may search a person arrested under section 41 to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.
3) A search of a person under this section must be carried out by someone of the same sex.
4) A constable may seize and retain anything which he discovers in the course of a search of a person under subsection (1) or (2) and which he reasonably suspects may constitute evidence that the person is a terrorist.
5) A person who has the powers of a constable in one Part of the United Kingdom may exercise a power under this section in any Part of the United Kingdom.
In summary s44 is being mis-used, according to this and similar police statements, as a means to circumvent legal accountability for their stated suspicions, and to stop and search with impunity.
Government and the Home Secretary must be pressed, challenged and if necessary taken to court to prevent this police abuse of law.
Meanwhile, anyone stopped under s44 needs to ask why they have been stopped. The correct and lawful answer is 'because I have authority to randomly search anyone in this area'.
If the policeman replies 'because I suspect you of terrorist-related activity' they need to be told that comprises a s43 search and asked to explain their suspicions (they likely won't). If you want to press the point, refuse a s44 search once suspicion has been stated and insist on s43 being used. The 'reasonableness' of their suspicion has to be acceptable to the courts. Arrest on some pretext is likely of course.
The NUJ and other representative organisations need to talk to the barristers at Liberty and challenge this creeping extinction of legal rights in the name of imaginary laws