The hostile environment created by this law should be the end of it.

Unfortunately there are still a swathe of laws that police can and will still use to harass photographers, most notably Section 43, which is similar to Section 44 but requires an officer to suspect that you are a terrorist and Section 76 which makes it illegal to ‘elicit information about a police officer’ which includes photographing them.

We will also monitor other stop and search powers to see if these are now used against photographers.

The following statement was made by the Home Secretary Theresa May on the 8th July 2010 to the House of Commons

Mr. Speaker, I would like to make a statement on stop and search powers under section 44 of the Terrorism Act 2000.

On Wednesday of last week, the European Court of Human Rights ruled that its judgment in the case of Gillan and Quinton is final. This judgment found that the stop and search powers granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life.

The Court found that the powers are drawn too broadly – at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.

The Government cannot appeal this judgment – although we would not have done so had we been able. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.

I can therefore tell the House that I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us. But neither will I leave the police without the powers they need to protect us.

Since last Wednesday, I have sought urgent legal advice and consulted police forces. In order to comply with the judgment – but avoid pre-empting the review of counter-terrorism legislation – I have decided to introduce interim guidelines for the police.

I am therefore changing the test for authorisation for the use of section 44 powers from requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it being ‘necessary’ for that purpose. And, most importantly, I am introducing a new suspicion threshold.

Officers will no longer be able to search individuals using section 44 powers. Instead, they will have to rely on section 43 powers – which require officers to reasonably suspect the person to be a terrorist.

And officers will only be able to use section 44 in relation to the searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have ‘reasonable suspicion’.

These interim measures will bring section 44 stop and search powers fully into line with the European Court’s judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws.

Mr Speaker, the first duty of government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights.

I commend this statement to the House.

A statement from the Metropolitan Police Press Bureau

Following today’s statement by the Home Secretary in relation to new guidelines around the use of stop and search under Section 44 of the Terrorism Act 2000 the Metropolitan Police Service will not seek to renew the current authorisation to use the power at this stage.

The current authority expires at 23.59 hours tonight (Thursday 8 July) and Metropolitan Police officers will not use the power after this time until further notice.

Public safety remains our top priority and we will continue to use all other powers available to us to keep London a hostile environment for terrorists.

Police officers continue to have the power to stop and search anyone who they reasonably suspect to be a terrorist under Section 43 of the Terrorism Act.

We will continue to work closely with the Home Office and other police forces throughout the ongoing review of CT legislation.

The World Tonight – BBC Radio 4 (Starts at 27m 37s)

Rules on stop and search changed – BBC News

Anti-terror stop and search powers to be scrapped – The Guardian

Section 44 is dead, says Home Office – British Journal of Photography

Stop-and-search criteria tightened – Press Association

A security guard attempts to stop a picture being taken in George Yard in the City of London. Photo: Grant Smith © 2009

Last week the Independent ran a front page story about the police harassing photographers using Terrorism laws, others soon picked up the story and the day after Head of ACPO Media Advisory Andy Trotter was on the BBC Breakfast sofa with the Independent journalist who had been stopped & searched. He was forced to admit defeat and issued new guidelines to ACPO Chief Constables:

Section 44 Terrorism Act and Photography

Adverse media coverage of the police service use of Section 44 powers, when dealing with issues relating to photography, have recently hit the headlines again and suggests that officers continue to misuse the legislation that is available to them. The evidence also suggests that there is confusion over the recording requirements of ‘Stop and Account’ and the actual police powers of ‘Stop and Search’. The purpose of this letter is to clarify the legislation and guidance in relation to these matters.

Stop and Search
Section 44 gives officers no specific powers in relation to photography and there is no provision in law for the confiscation of equipment or the destruction of images, either digital or on film.

On the rare occasion where an officer suspects that an individual is taking photographs as part of target reconnaissance for terrorist purposes, then they should be treated as a terrorist suspect and dealt with under Section 43 of the Act. This would ensure that the legal power exists to seize equipment and recover images taken. Section 58A Counter Terrorism Act 2008 provides powers to cover instances where photographs are being taken of police officers who are, or who have been, employed at the front line of counter terrorism operations.

These scenarios will be exceptionally rare events and do not cover instances of photography by rail enthusiasts, tourists or the media.

The ACPO/NPIA Practice Advice, published in December 2008, is again included with this letter and specifically covers the issues surrounding photography. The guidance also includes the need for clear briefings on the use of Section 44 and it may be appropriate to include photography issues within those briefings.

Stop and Account
Encounters between police officers and PCSOs and the public range from general conversation through to arrest. Officers need to be absolutely clear that no record needs to be submitted to cover any activity that merely constitutes a conversation.

Only at the point where a member of the public is asked to account for their actions, behaviour, presence in an area or possession of an item, do the provisions of the PACE Act apply and a record for that ‘stop and account’ need to be submitted. Even at that point, such a discussion does not constitute the use of any police power and should not be recorded under the auspices of the Terrorism Act, for example.

Officers should be reminded that it is not an offence for a member of the public or journalist to take photographs of a public building and use of cameras by the public does not ordinarily permit use of stop and search powers.

Yours sincerely

Andrew Trotter OBE QPM
Chief Constable
Head of ACPO Media Advisory Group

Yet days later Architectural Photographer Grant Smith was Stopped & Searched in London after he refused to give his name (which he is perfectly within his rights to do) while photographing a church. He’s sent us this after it happened:

On a beautiful sunny day in London I was taking photographs of Wren’s steeple at the ruined Christ church, Newgate, which adjoins the building occupied by Bank of America and Merrill Lynch.

After about 20 minutes of taking photos, a security guard approached asking for ID and the purpose of photography. I refused to give any details. Shortly after a suited head of security came out to ask me the same questions under the pretence of ‘hostile reconnaissance’ . Again I refused. I had no obligation to provide corporate security guards any of this information as I was in a public space.

I moved away from the building, under the constant surveillance of the guard, and crossed the road to get a wider shot.

I was then approached by a PCSO who crossed the road and asked what me what was I doing, again I declined to give any information. He responded that if an ‘incident takes place, like a bomb going of,f in the near future and I hadn’t questioned you, I wouldn’t be doing my job properly.’

After his departure I heard police sirens coming from the east and west. and watched in stunned amazement as 3 police cars and a riot van arrived, all with flashing lights. They pulled up outside the entrance where the guard had approached me. 3 of them marched toward me and said they were responding to an ‘incident’. Apparently there was ‘…an aggressive male who had been in reception of the building taking photographs of the staff, and who refused to leave’.

I argued this with the police officer, saying that this was wrong. I was not in the building reception, I was not photographing staff, nor had I been asked to leave.
I was asked by police what I was doing and it was obvious I was taking photographs, but I initially declined to give any further information. During this questioning, one of the police officers was admiring my camera, and commented amusingly on my ‘I’m a photographer, not a terrorist’ badge.

My camera bag was searched for terrorist related paraphernalia (notebooks and maps I assume), despite my lame protestations.

The police officer again asked for my details as he produced his stop search form. When I said that I was not obliged to give the details, he said I would be physically searched, which did not sound like a very pleasant experience. So I gave my details and was not detained any longer.

All of this was because I declined to be bullied or intimidated by a security officer, who now have what appears to be the full backing of the police in their assessment of photographers.

Grant has been interviewed by ITV London Tonight and More4 News about the incident:

• Brings Home Office in to line with NPIA and Met advice
• New guidance for use of s76 on journalists and tourists

On Tuesday afternoon the Home Office sent out advice to all the Chief Police Officers in the UK about the use of Terrorism laws on photographers, they say:

This circular has been produced to clarify counter-terrorism legislation in relation to photography in a public place. Concerns have been raised that sections of the Terrorism Act 2000 are being used to stop people taking photographs – whether this is photographs of buildings or people – and that cameras are being confiscated during such searches.

Home Office Circular 012 / 2009

It then goes on to clarify police powers under sections 43 and 44 of the Terrorism Act 2000 and is broadly in line with the National Police Improvement Agency (NPIA) and Met Police advice issued earlier this year. However, it then comes to give new advice on s58A – more commonly known as s76 – which makes it an offence to photograph a police officer or member of the armed forces:

An officer making an arrest [under section 76] must reasonably suspect that the information is of a kind likely to be useful to a person committing or preparing an act of terrorism.  An example might be gathering information about the person’s house, car, routes to work and other movements. [...]

It is a statutory defence for a person to prove that they had a reasonable excuse for eliciting, publishing or communicating the relevant information [Under s76]

Important: Legitimate journalistic activity (such as covering a demonstration for a newspaper) is likely to constitute such an excuse. Similarly an innocent tourist or other sight-seer taking a photograph of a police officer is likely to have a reasonable excuse.

(Emphasis theirs) Home Office Circular 012 / 2009

Leaving aside the whole issue of who or what the police deem to be ‘legitimate journalistic activity’ something which Commander Broadhurst – Head of Public Order at the Met – failed to grasp earlier this year at the NUJ Photographers Conference. This new advice does nothing for the thousands of amateur and professional wildlife, landscape, architectural or street photographers who are routinely harassed by police whilst taking photographs.

We have seen a letter from the new Policing minister, David Hanson, sent to the National Union of Journalists yesterday who this new advice seems to be in response to. In the closing paragraph of his letter he says:

I believe this circular removes once and for all any suggestion that the new offence can be used to prosecute innocent photographers such as responsible journalists, simply because they are taking a photograph of a police officer. I am enclosing a copy of the circular for your reference.

Letter to Jeremy Dear, General Secretary, NUJ – David Hanson, Minister for Policing

Photographer Justin Tallis is questioned by Bedfordshire police about photographing police officers on a demonstration. Image: Jonathan Warren

We will be watching carefully how this new advice is adopted as we know of at least two occasions where s76 has been threatened against press photographers in public order situations.

The new advice also ignores Special Procedure Material under PACE which gives journalistic material a higher level of protection from seizure by police (The police have to go to a county-court judge and explain why they need it) After protests by the National Union of Journalists the Met changed their advice to include the caveat that when searching someone who identified themselves as a journalist that ‘Officers should exercise caution before viewing images as images acquired or created for the purposes of journalism may constitute journalistic material and should not be viewed without a Court Order.‘

We did contact the Home Office to ask why their advice did not include Special Procedure Material but they did not respond.

Marc Vallée has published the letter from the Home Office minister in full on his blog.

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