Unless you have been in a coma or detained without charge somewhere this week, you have probably already read that several hundred professional and amateur photographers descended on New Scotland Yard on Monday to take photographs as a protest against the Counter Terrorism Act 2008 which came into force on that day.
Organised by the NUJ, BJP and BPPA and featuring a guest appearance by comedian Mark Thomas, the event was focussed upon s.76 of the Act which potentially fines or imprisons for up to 10 years anyone eliciting, publishing or communicating information on members of the armed forces, intelligence services and police officers which is "likely to be useful to a person committing or preparing an act of terrorism". This could easily be interpreted to mean any photograph of a policeman comprises a criminal offence.
If achieving press coverage was the aim, the photocall was a considerable success, with coverage in the national press and broadcast channels as well as photographic magazines and blogs. There's a good collection of links to coverage at Marc Vallée's blog.
It's unfortunate that all parties seem completely focussed on the egregious S.76 whilst ignoring the equally invidious powers of seizure of memory cards, cameras and laptops enabled by Part 1 of the same Act. It seems likely that the latter will actually be abused far more often - routinely - than throwing photographers in gaol for photographing policemen, but it's good to know HM Government have all bases covered for our protection.
Police were of course predictably affable during the event, despite the SOCPA restrictions that apply to much of the area, and nobody was mistaken for a terrorist despite the array of beards and dodgy bags.
Less predictable but extremely welcome was the support of the Metropolitan Police Federation, whose Chairman chairman, Peter Smyth, reportedly said he “shares the concerns of press and other professional photographers that poorly-drafted anti-terrorist legislation could be used to justify unwarranted interference in their lawful activities.” He joined MP Austin Mitchell's call for a Photography Code which would spell out legal rights.
The question remains whether Government is listening to any of the escalating debate. So far there is no reason to think so. Vernon Coaker, the minister for policing, crime and security, told the NUJ last year that photography could be limited "on the grounds of national security", in "situations in which the taking of photographs may cause or lead to public order situations or inflame an already tense situation or raise security considerations", or "to prevent a breach of the peace". Home Secretary Jacqui Smith later followed this up with a letter to Jeremy Dear, General Secretary of the NUJ, wherein she agreed that there were no legal restrictions on photography but nevertheless police could prevent or restrict it if they wished.
A spokeswoman for the Home Office told The Guardian that "the law was not specifically intended for photographers and concerns about how it would be used were speculative. It would be the job of the police and the courts to interpret the law."
That is, of course, precisely the problem. As Alex Singleton railed at Jacqui Smith in his Telegraph blog "It is a pig's breakfast of a law, and shows the complete disregard in Whitehall both for civil liberties and also for high-quality law making." The Counter Terrorism Act like so much other recent legislation enacted with the intent of protecting against terrorism is open to misinterpretation, misdirection and ultimately abuse of civil liberties. When establishment figures such as Dame Stella Rimington, ex-MI5 chief, warn publically that "the fear of terrorism is being exploited by the Government to erode civil liberties and risks creating a police state" we are right to be not only concerned but determined to defend what remains of our freedoms from destruction by our elected representatives.
You are correct in that s.43 says:
There are a number of problems with this. What is a terrorist and what is terrorism in this context? The meaning (Part 1 Terrorism Act 2000) is vastly wider than Al Quaida jihadists bent on mass murder, or even anarchist looters or animal rights activists threatening vivisectionists:
All of which is sufficiently wide that almost any public order situation that involves serious violence, serious damage to property or threat of either can be called terrorism. Government's own statements increasingly blur dissent and terrorism together as threats to order and the state. The use of anti-terror law against demonstrators has already become part of the legal toolkit on several occasions.
Other definitions include incitement or support for proscribed organisations (s.12) and at Section 58, which deals with the collection of information:
Our concern is that, whilst covering a demonstration or riot or other public order 'threat' to the state, life or property, the 'collection of information' is itelf sufficient 'reasonable suspicion' for a s.43 stop, search and seizure of cameras or memory cards. S.76 of CTA2008 adds further to this by defining photography of police themselves as potentially an offence.
In such situations police are already often dismissive or mistrustful of press credentials as well as motives. Besides the very nature of unstable public order situations compels 'act first, investigate later' policing that sometimes involves unlawfully aggressive actions by police themselves. They never have been pleased to be photographed in flagrante and have often used other laws such as arrest or threat of arrest for obstruction to try and stay off the front pages. s.43 seizure has to be a temptation, especially as they don't have to arrest anyone.
Of course, any journalist or bona-fide bystander will have a reasonable excuse and no arrest or charges will result, but that doesn't mean that in the heat of the moment they will not get their collar felt and materials temporarily seized for up to 96hrs, until inquiries can establish their innocent motives, and coincidentally deadlines have passed and the story is old news. It remains unclear whether even PACE 'special procedure' protections apply to cards seized from journalists as the CTA2008 only excludes 'legally privileged' material.
The catch-all nature of these laws is designed for broad application. As nobody knows what or who terrorists are there is lots of wriggle room. Jacqui Smith has made it clear that she is content to allow interpretation of these laws to be entrusted to the police and courts. Since nobody is likely to be arrested, charged or put on trial, that means the police alone, at least until someone sues them.
We think there is plenty here to worry about as we head into a period of social tension and probable disorder that will be onerous for the police and politically difficult for Government. Neither is actually going to want this stuff photographed. Perhaps this is all paranoid speculation and it will never happen, which would be the best outcome. But the complete lack of safeguards for legitimate and necessary coverage allow at least the possibility of misuse and suppression of reporting which has no place in a democracy.
Photorights admin
Good article. It is important to flag up these things.
Although the police say that they would rarely use the s76 power to arrest someone photographing an officer, the point is that the act gives them the power to do this, without a reason, same as the s44 stop and search power.
The part 1 power to seize a memory card (defined as a document), only applies where they have reason to believe you are a terrorist.
That's my reading of it, but I am prepared to stand corrected!
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