Solicitor Mike Schwartz of Bindman and Partners told conference attendees that police were circumventing the Police and Criminal Evidence Act (PACE) Special Procedure Material safeguards, designed to protect journalistic material such as photographs and notebooks.

“Sadly, I think one of the dangers is that the police are using their powers to arrest journalists and photojournalists in order to get round the protections which are built into PACE which are supposed to protect journalistic material.”, he told the conference.

“The police are arresting journalists, seizing their equipment, treating them as suspects, looking at their photographs, taking copies, perhaps returning them to them, taking no further action often (but not always) and they’ve got, straight away, what they want.”

“Police seeking your evidence”

The session, one of four held during the one-day conference, saw talks by Commander Robert Broadhurst, responsible for policing all public order events across the Metropolitan Police Force area, Mike Grannat from the Press Card authority, and barrister Anthony Hudson.

Schwartz, who advises a number of campaign groups on criminal and public order law said that the nature of newsgathering meant that press photographers were often in a better position to gather evidence than police photographers and videographers.

“At public order events, [press photographers] have got an inside track as to what is going on, much better than the police ever will. Their own clearly marked photographers are often behind police lines, whereas you are there as close to the action as possible, and that makes the material that you have in your possession of great value to the police.”

“At every demonstration, the police are figuratively scratching their heads as to how they can get hold of your material. That’s what they’re after.”

“The police take action, they often get what they want, and allow the lawyers in court to mop up what’s happened afterwards. That’s one of the trends and areas where there is a real problem: the police arresting journalists and seizing their material in order to use it in prosecutions.”

“Not a police state”

“What often happens is journalists are arrested, their material is taken from them, prosecution is not pursued, but then that material is used as part of the prosecution of non-journalists.”

“There are more formal mechanisms, with more rigorous protections for journalists and photographers, that the police are supposed to use to seize journalistic material, but my worry is that these mechanisms are being sidetracked by arrests of journalists being used as a way to getting hold of the material.”

Commander Broadhurst denied the allegations: “The idea of this police state where whenever you go out we’re going to take your photographs, we’re going to arrest you, so you can do our job for us with regards to collecting evidence is not a world that I recognise.”

“I personally don’t know of any incidents where we have gone out of our way to arrest photographers in order to seize footage. We will, however, pursue things through the courts if we feel that you do have something of value to us.”

Under the Police and Criminal Evidence Act, material such as a journalist’s notes, photographs, computer files or tapes are classified as Special Procedure Material, which have a higher level of protection than ordinary possessions.

However, according to Schwartz, the same material can be seized and examined by police if the journalist is arrested as a suspect and the material is considered evidence in the alleged crime for which they have been arrested.

“I’m not suggesting that there is a large scale conspiracy, but the reality is that the effect of the policing is that innocent journalists are at the time, not after the fact, arrested, searched as all arrested people are, the threshold for arrest is pretty low, and barring the exceptional immunity for freedom of expression defences, that power is misused.”

Using photographs to track down G8 rioters

Last year, EPUK reported that Lothian and Borders Police were using photographs taken by professional press photographers in a public appeal to identify suspects who were allegedly involved in riots in Edinburgh in the runup to the G8 summit at Gleneagles.

Because the electronic metadata had been left on the images, the photographers and publications which supplied them to the police could be easily identified. While it is still not clear under what circumstances the police obtained the high-resolution original digital files, EPUK understands that no court injunctions were sought or obtained by the police in respect of the material.

While EPUK knows the identity of the photographers and publications involved, we did not identify them in the original piece. Lothian and Borders Police removed the identifying information after being tipped off by EPUK.

First hour of chaos

Commander Broadhurst said that some of the conlicts between police and press attending hard news events came from both parties arriving on the scene at the same time with very different priorities.

“The role of the police is to bring order and control in that first hour of chaos, but it’s probably in that first hour of chaos when the best pictures will be taken.”

Referring to an anti-war demonstration last October in Parliament Square in which EPUK member Marc Vallée was badly injured, Commander Broadhurst said that it was difficult to discriminate between professional press photographers and other protesters.

“I was expecting small groups of ten or twelve protesters to pop up all over Westminster, doing their best to disrupt Parliament, locking themselves onto gates, scaling towers, all sorts of stuff. In the end, they fell into the trap, they all came out of the tube at the same time, and you’ll remember the pictures of us coralling them into a circle in a bit of a standoff.”

“Press card no use in a melée”

“Photographers such as yourself had free access and free movement around that. The problem is, so do the protesters’ own photographers, because they bring their own photographers in the same way that they bring their own lawyers. Our guys and girls cannot differentiate between those people who are out to make mischief, and those who are genuinely there to take pictures.”

Asked as to whether this was an issue that the National Press Card was designed to address, he added “The Press card is fine, if you’re in a controlled situation. In a situation like the one I described, in a melée of people we can’t start to differentiate between members of the press, members of the public and anyone else with a camera.”

Speaking to the conference, Mike Granatt of the Press Card Authority said that in future it was possible that photographers would need to carry a further form of photographic identity, such as a driving licence or passport, in addition to the national press card. Buckingham Palace already insists on a second form of identification for press photographers.

The conference, the first of its kind for NUJ photographers, and free for NUJ members was widely seen to have been a huge success, although it is not yet clear whether it will become an annual event. Other sessions included talks on photographers rights, copyright and intellectual property, and strategies for business survival.