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|Police, photographers and the Law
Civil Rights Lawyers Shamik Dutta and Rosie Brighouse of Bhatt Murphy answer fifteen key questions on police powers and photography in Britain today. Photographs Jules Mattsson and David Hoffman.
Nothing in this guide can be certain to prevent a photographer or journalist being arrested unlawfully by a police officer. However, the guide may help photographers to know what their rights are so they can discuss those rights and the policies from which they derive with police officers. In doing so, it is hoped that photographers can continue pursuing their own lawful activities and police officers’ time can be focused, elsewhere, on unlawful activity.
What is an officer obliged to tell me before a search?
According to Paragraph 3.8 of Code A of the Police and Criminal Evidence Act 1984, before any search an officer must take reasonable steps to give you the following information:
According to Code A, an officer is not obliged to make a record of a search only where there are exceptional circumstances which make this wholly impractical (e.g in situations involving public disorder or where the officer’s presence is urgently required elsewhere).
What are the most commonly used search powers?
Section 1 of the Police and Criminal Evidence Act 1984, allows the police to search you if they have reasonable suspicion that you have an offensive weapon or an article which you intend to use for burglary, theft, taking a motor vehicle, fraud or criminal damage. They also have the power to search you for bladed articles or prohibited fireworks.
Section 23(2) of the Misuse of Drugs Act 1971 gives a constable the power to search you if they have reasonable grounds to suspect that you are in possession of a controlled drug or evidence of drug use. In those circumstances they may seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.
Section 60 of the Criminal Justice and Public Order Act gives officers the power to search you without reasonable suspicion, but only in a designated area and only for offensive weapons.
Section 43 of the Terrorism Act 2000 gives a constable the power to 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.
TERRORISM ACT 2000
Section 58 Terrorism Act 2000 – Photographs
Section 58(1) Terrorism Act 2000 deals with the collection of information. It states that a person commits an offence if (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind.
Section 58(2) states that a “record” includes a photographic or electronic record.
How can I defend myself against an accusation that a photograph falls within s.58?
Section 58(3) provides that it is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.
The House of Lords interpreted Section 58 Terrorism Act 2000 in the recent case of R. v G.  UKHL 13. The Court ruled that the offence is premised upon there being someone who is actually planning an act of terrorism and “Likely to be useful” is interpreted as “likely to provide practical assistance.”
Helpfully the House of Lords also said that it could not have been the intention of Parliament to criminalise the possession of items useful for everyday purposes simply because those items could also be useful to someone planning an act of terrorism. The Court gave the example that a training manual about planting bombs would be of intrinsic use to terrorists, but a train timetable would not be.
The European Court of Human Rights has since confirmed, in the case of Jobe v United Kingdom ((2011) 53 E.H.R.R. SE17) that s58 does not “criminalise in a blanket manner the collection or possession of material likely to be useful to a person committing or preparing an act of terrorism” but only such collection without reasonable excuse.
So, if you are asked to stop taking pictures under s.58 of the Terrorism Act you could ask the officer which terrorist he thinks you are trying to assist and if there is no such person you could suggest that the officer should not try to stop you taking pictures and you could refer the officer to the other policies on this subject detailed below. You could also emphasise that any jury would clearly accept that a journalist taking photographs in the course of their profession has a reasonable excuse for his or her actions.
s.58A Terrorism Act – photographs of police officers, members of the armed forces etc.
Section 58A of the Terrorism Act 2000 creates the offence of “Eliciting, publishing or communicating” information about members of armed forces, intelligence services or police constables. A person commits this offence if they elicit, attempt to elicit, publish or communicate information about an individual who is or has been a member of these services, if it is “of a kind likely to be useful to a person committing or preparing an act of terrorism.”
Again it is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action. This section may come into play during the Olympics, as the large number of soldiers deployed in the security operation may be unhappy to be photographed by the press.
Again it is a defence for a person charged with an offence under this section to prove that they had a reasonable excuse for their action and the helpful aspects of the House of Lords case on s58 (R v G) described above may be directly applicable to this section as well.
Does this prohibit me from taking photographs of police officers?
No – see the relevant guidance in the policies quoted below.
S47A Terrorism Act 2000
One of the most controversial stop and search powers was s44 of the Terrorism Act 2000. This enabled police officers to stop and search anyone within an ‘authorised area’ without any reasonable suspicion of anything. An authorisation could be issued by an assistant chief constable solely on the basis that it was ‘expedient’ for preventing acts of terrorism. The powers were so broad and unregulated that for almost 10 years the whole of Greater London was authorised for s44 stops and searches.
Following a successful legal challenge to the s44 stop and search power, it has been replaced with s47A; the new power is similar in structure to the old inasmuch as it permits the police to carry out a stop and search, without reasonable suspicion within an area authorised by a senior police officer. The only difference from s44 is that now an authorisation can only be made if the senior police officer has reasonable grounds to suspect that an act of terrorism will take place in that area, and that the authorisation is necessary to prevent it. This change has made a huge difference on the ground: s44 was one of the most frequently and controversially used stop and search powers, but s47A does not appear to have been used once since its introduction in March 2011.
In the event that an authorisation is issued under this section, the Code of Practice applying to s47A explicitly provides that, even within an authorised area, “the police have no power to stop the filming or photographing of incidents or police personnel” and that “it is important that police officers do not automatically consider photography/filming as suspicious behaviour” (Link to additional information here )
Can an officer look through my images?
Digital images can be viewed as part of a Terrorism Act search to discover whether you have in your possession anything which may constitute evidence that you are a terrorist (but see below regarding Special Procedure Material).
In what circumstances can my images be taken away by the police?
Cameras, film and memory cards can be seized if the officer reasonably suspects that these may constitute evidence that the person is a terrorist.
However, officers do not, during a search, have the power to delete images or destroy film and if they do you may be able to bring a claim against the police for any loss caused to you.
Once cameras or other devices are seized, to preserve evidence, officers should not normally attempt to examine them further. Seized cameras and other devices should be left in the state they were found in and forwarded to appropriately trained forensic staff for forensic examination.
Section 51 of the Criminal Justice and Police Act 2001, states that items including pictures, memory sticks or cameras can be seized by a constable if there has been a lawful search and it is not reasonably practicable for it to be determined, at the time and place of the search i) Whether what the constable has found is something he is entitled to seize (i.e. whether it is Special Procedure Material); or (ii) the extent to which he has found something that he is entitled to seize. Items can be seized to enable those questions to be determined.
If items are seized then Section 52 Criminal Justice and Police Act 2001 states that notice must be given to the searched person specifying, amongst other things:
However, the relevant case law suggests that a failure by the police to give this written notice does not necessarily render the seizure unlawful (see R (on the application of Dulai) v Chelmsford Magistrates’ Court (2012 EWHC 1055 (Admin)).
Section 53 goes on to say that items should be examined as soon as reasonably practicable. If the police had no power to seize, then the items should be returned. There is also the potential for seizure on arrest.
What policies can help me in persuading an officer to allow me to carry on taking pictures/filming?”1. ACPO Communication Advisory Group Guidance 2010
It is worth reading paragraphs 4.35-4.41 of this document in full. It explicitly states, for example, that “There are no powers prohibiting the taking of photographs, film or digital images in a public place. Therefore, members of the public and press should not be prevented from doing so”. On the contrary: “unnecessarily restricting photography, whether for the casual tourist or professional, is unacceptable and it undermines public confidence in the police service”.
This document also provides that when cordons are put in place it is ‘best practice’ to provide the press with vantage points.2. Metropolitan Police Media Relations Standard Operating Procedure
This policy (which can be accessed here) states that it is not the role of the police to censor what the media can film or photograph, and “that includes putting yourself or your hand in front of a camera lens, removing film or deleting photographs”.3. Home Office policy – 012 / 2009
This came into force on 18 August 2009 and clarifies the scope of Section 43 of the Terrorism Act 2000 (set out above). It states:
• Section 43 does not prohibit the taking of photographs, film or digital images in a public place and members of the public and the press should not be prevented from doing so in exercise of the powers conferred by section 43.
Metropolitan Police Service policy on s.58A Terrorism Act 2000.
This includes the following:
• It would ordinarily be unlawful to use section 58A to arrest people photographing police officers in the course of normal policing activities, including protests because there would not normally be grounds for suspecting that the photographs were being taken to provide assistance to a terrorist.
As a journalist, are my photographs afforded any special protection?
Section 14 of the Police and Criminal Evidence Act (PACE) states that journalistic material is subject to the rules of Special Procedure Material.
This section also applies to material acquired or created in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office where it is held subject to an express or implied undertaking to hold it in confidence.
Generally, once your images are recorded, the police have no power to delete or confiscate them without a court order. However, see above regarding s.51 of the Criminal Justice and Police Act 2001.
In terrorist cases, e.g. where police contact starts with a search under section 43 Terrorism Act 2000, a police officer of at least the rank of superintendent may issue a search warrant (without court order) if there exists a “great emergency” and “immediate action is necessary.” This only applies to terrorist cases, not investigations of other criminal offences.
In many cases therefore, the production or seizure of images will require a court order. This should only be granted in circumstances where there are reasonable grounds for believing that the material is likely to be of substantial value to that investigation; and where there are reasonable grounds for believing that it is in the public interest for the material to be disclosed, having regard to the benefit likely to accrue to the investigation, and the circumstances under which you had the material in your possession.
A recent attempt by Essex Police to force a number of journalists to hand over their footage of the Dale Farm evictions was resisted by the High Court in the case of R(oao BSB) v Chelmsford Crown Court  EWHC 1295 (Admin). The judges emphasised that it should not be easy for the police to obtain such evidence, particularly with regard to the risk that journalists would cease to be perceived as neutral observers and thus be less able to do their job.
Mr Justice Eady said that:
“[D]isclosure orders against the media, intrusive as they are, can never be granted as a formality. There must at least be cogent evidence as to (i) what the footage sought is likely to reveal, (ii) how important such evidence would be to carrying out the investigation and (iii) why it is necessary and proportionate to order the intrusion by reference to other potential sources of information.”
Do I have to give an officer my name and address details if I am not under arrest?
Section 50 Police Reform Act was enacted to deal with persons acting in an anti-social manner. It states that if a constable in uniform has reason to believe that a person has been acting, or is acting, in an anti-social manner he may require that person to give his name and address to the constable.
Part 2 of Section 50 says that any person who:
(a) fails to give his name and address when required to do so under subsection (1), or
(b) gives a false or inaccurate name or address in response to a requirement under that subsection, is guilty of an offence and shall be liable, on summary conviction, to a fine.
A constable in uniform may arrest an individual for failure to provide name and address details if there is reason to believe that person is acting in an anti-social manner.
It would be difficult for the police to justify the belief that the mere taking of photographs is “anti-social”, but this question has not yet been tested in the courts. In one case an amateur photographer, Bob Patefield, was arrested for failing to give his name and address under s.50 Police Reform Act while taking photographs in a public street in Lancashire. The police had accused him of taking photographs in an “anti-social” manner. The police force in question has now agreed to pay him damages in response to his claim for unlawful arrest.
Is there any law that stops me from taking pictures of government buildings?
Section 1(1)(b) of the Official Secrets Act 1911 states that it is a criminal offence to take a photograph of a “prohibited place”, which is calculated to be or might be or is intended to be directly or indirectly “useful to an enemy”, for a purpose which is prejudicial to the safety or interests of the state.
Prohibited places include:
This section should not prohibit the taking of photographs of buildings such as the Houses of Parliament, i.e. those that are already within the public domain.
Are there any other guidelines or leaflets available that I can carry with me to show officers?
Yes. Guidelines for MPS (Metropolitan Police Service) staff on dealing with media reporters, press photographers and television crews were produced in 2006. A leaflet is available from the Metropolitan Police or through the National Union of Journalists (NUJ).
A print-out of the following webpage could also be a useful document to show to any police constable treating you in a manner which you consider to be unlawful: Metropolitan Police: Photography Advice
Association of Chief Police Officers (ACPO)
How can I tell if a police officer could be subject to a complaint?
The Police (conduct) Regulations 2008 provide standards of behaviour expected of all police officers:
Authority, Respect and Courtesy:
Equality and Diversity:
Use of Force:
Orders and Instructions:
Challenging and Reporting Improper Conduct:
What powers do the police have to seize pictures on private property?
Section 19 Police and Criminal Evidence Act 1984
The powers of seizure under s.19 PACE are exercisable by a constable who is lawfully on the premises. These powers are as follows:
S19.(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(6) No power of seizure conferred on a constable under any enactment (including an enactment contained in an Act passed after this Act) is to be taken to authorise the seizure of an item which the constable exercising the power has reasonable grounds for believing to be subject to legal privilege.
Can the police order me to move away from a demonstration?
Section 14 Public Order Act – Imposing conditions on public assemblies
S14.(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
He may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.
This law is intended to assist in policing demonstrations and assemblies, and there is little evidence to suggest that it was designed, or should be used by police officers against photographers who are peacefully taking pictures of such an event. At the 2009 G20 protests a photojournalist was hit in the face with a riot shield while the police were moving protestors under the authority of this section. He brought a claim against the Metropolitan Police and received both compensation and a written apology. The apology recognised that he was entitled to report on the protest and included the following key sentence: “The [Metropolitan Police] confirms its recognition that freedom of the press is a cornerstone of democracy and that journalists have a right to report freely”.
If a police officer attempts to move you away from a demonstration under this section it would be advisable to explain that you are neither organising nor participating in the demonstration and, if possible, remind them of the contents of the ACPO and Metropolitan Police policies quoted above.
If I refuse to move, can I be arrested?
Section 89 Police Act 1996 deals with assaulting or obstructing a police officer. Part 2 of the section states that any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence.
For the purposes of this section “obstruct” means prevent the officer from carrying out his duties or to make it more difficult for him to do so.
NB- you can only be guilty of an offence if the officer is acting lawfully to begin with.
Do PCSO’s (Police Community Support Officers) have similar powers to those of Police Officers in relation to stops and searches of photographers?
No. PCSOs have much more limited powers. PCSO’s have the power to:
They do not have a power of arrest, however they can require someone to remain with them until a constable arrives in specific circumstances.
Any final tips?
As a photographer or photojournalist dealing with the police, you should be assertive but polite.
You should ask questions such as upon what basis are you asking me to be searched/to stop filming etc.
You should make a detailed note immediately after an interaction as to what you said and what was said by the officer in reply before, during or after a search.
You should rely upon the policies cited above and carry them with you.
If necessary, remind officers of the police codes of conduct. Warn the officer that (s)he will be the subject of a formal police complaint in the event of an unlawful search or arrest. (This could result in a misconduct notice being issued against the officer and the officer being interviewed under criminal caution).
Shamik Dutta was a speaker at the Photographers and the Police Seminar held at the AoP on April 14th 2010.
This original article by Shamik Dutta published by EPUK in June 2010 was updated by Shamik Dutta and Rosie Brighouse in July 2012.
Shamik Dutta and Rosie Brighouse work for the law firm Bhatt Murphy in London.
Text © Shamik Dutta and Rosie Brighouse 2012.
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