Counter-terrorist Powers

Hi All

Can I wish you all a happy eostre and don’t forget you can get some exciting (and dark)  photos in the rain.

I expect you all have heard rumours about the new powers that police have been given to stop and search under the recently introduced amendment to the Terrorism Act 2000.

It would also appear that some police and PCSOs are also listening to the same rumours rather than the law. I don’t want to repeat the scare stories here but rather try to clarify as far as I understand it (bearing in mind I am only a photographer not a legal expert).

Here is a link to the act in question: Terrorism Act 2000 (c. 11). The section that is causing the problems is section 44 where (under subsections 1 and 2) constables in uniform have the right to stop and search any vehicle or person… That in itself is a terrifying power but, and this is what gets conveniently forgotten, in an authorised area and

“… only for the purpose of searching for articles of a kind which could be used in connection with terrorism…”

The authorisation must be given by someone with a rank of at least assistant chief constable and must be ratified by the Home Secretary within 48 hours. So if you are in a area that is unlikely to be a terrorist target it is unlikely that s44 will apply.

Notice also it is a power to stop and search there is no right to question – although it may be prudent to answer sensible questions.

Suspicion is not a requirement so if an officer suggests you have been acting suspiciously taking photographs then s43 applies not s44 where they have to show they have reasonable suspicion of (you) being a terrorist.

Under s44 or s43 the police do not have any power to delete any photos, in fact the powers are to find evidence of terrorism so deleting any photos would be destroying any evidence!

There is a very interesting Hansard Debate raised by Mr John Randle on the 1st April this year where it quite clearly states

“…section 44 does not prohibit the taking of photographs…”

“…the ability to take photographs in a public place is not subject to any set of rules or to statute. There are no legal restrictions on photography in a public place except where the picture is taken with the intent of committing a crime or terrorist act.”

Reference is also made to Google Street View which by its very existence invalidates almost any consideration that photographers are collecting information for terrorism when out with their cameras as this information is already in the public domain and readily available on the internet. It also illustrates the public’s right to photograph almost anything from a public place.

One other aspect of the new legislation is section 58A (which came into effect in February this year) on the collection of information which makes it an offence to elicit, attempt to elicit, publish or communicate information about an individual who is or has been a constable, or a member of the armed forces or intelligences services. This is often interpreted to mean that it is now illegal to photograph police and members of the armed forces.

Clarification has come from The Parliamentary Under-Secretary of State for the Home Department (Mr. Shahid Malik) and I quote

“…The important thing is that the photographs would have to be of a kind likely to provide practical assistance to terrorists, and the person taking or providing the photograph would have to have no reasonable excuse, such as responsible journalism, for taking it.

I want to be clear about this: the offence does not capture an innocent tourist taking a photograph of a police officer, or a journalist photographing police officers as part of his or her job. It does not criminalise the normal taking of photographs of the police. Police officers have the discretion to ask people not to take photographs for public safety or security reasons, but the taking of photographs in a public place is not subject to any rule or statute. There are no legal restrictions on photography in a public place, and there is no presumption of privacy for individuals in a public place.”

So get out there and photograph what you will, just be aware that until (and probably after) new guidelines are issued and cascaded to the constable on the beat you are likely to get occasionally harassed for having and using this terrible device know as a camera. As long as you know where you stand with regard to the law, even if certain others don’t, you have a chance of surviving the un-warranted (pun intended) intrusions with all but a little dignity still intact.



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