Photography and counter-terrorism legislation
From CrimeLine from Andrew Keogh
- Police powers of Stop and search generally
- Met Police Guidelines re Photography and Counter-Terrorism legislation
- Home Office circular 012 / 2009 Photography and Counter-Terrorism legislation
On 16 February 2009, the Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 brought in to force section 58A of the Terrorism Act 2000 (inserted by section 76 of the Counter Terrorism Act 2008), offences relating to information about members of the armed forces etc. together with Schedule 8 (offences relating to information about members of armed forces etc: supplementary provisions)
Contents |
Terrorist offences
Section 76 - Counter-Terrorism Act 2008 – Offences relating to information about members of armed forces etc.
Section 76 inserts a new section 58A into the 2000 Act which creates a criminal offence. The offence is committed when a person either elicits or attempts to elicit information about a member of the armed forces or the intelligence services or a constable, which is likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates information of that kind.. A person who is able to prove that he had a reasonable excuse for his actions is able to rely on that as a defence. This must be read with section 118 of the 2000 Act as amended by section 76(3), the effect of which is to limit the burden on the accused to an evidential burden, so that if that person adduces evidence sufficient to raise an issue with respect this defence, the prosecution must then prove beyond reasonable doubt that there is no such defence. The offence is punishable with a maximum sentence of 10 years imprisonment, or to a fine or both.
Schedule 8 – Offences relating to information about members of armed forces etc. supplementary provisions
New section 58A(5) of the 2000 Act adds supplementary provisions in an additional Schedule 8A to the 2000 Act (inserted by Schedule 8 to this Act). These provisions make the offence compliant with the “E-Commerce Directive” (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Official Journal L 178 17/07/2000 p.1-16)).
Photography and Section 43 of the Terrorism Act 2000
Under section 43 of the Terrorism Act 2000 a police officer may stop and search a person they reasonably suspect to be a terrorist, to discover whether that person has in their possession anything which may constitute evidence that they are a terrorist. This power can be exercised at any time and in any location.
The definition of 'terrorist' is found in section 40 of the Terrorism Act 2000.
Important: 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.
A police officer can only stop and search a person they reasonably suspect to be a terrorist under this power.
Viewing Images and Seizure
- Digital images can be viewed as part of a search under section 43 of the Terrorism Act 2000 to discover whether the person has in their possession anything which may constitute evidence that they are a terrorist.
- When conducting a search under section 43, cameras, film and memory cards can be seized if the officer reasonably suspects that these may constitute evidence that the person is a terrorist.
- Officers do not have the power to delete images or destroy film.
- 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.
Photography and Section 44 of the Terrorism Act 2000
Powers under section 44 of the Terrorism Act 2000 enable uniformed police officers to stop and search anyone within an authorised area for the purposes of searching for articles of a kind which could be used in connection with terrorism. The powers do not require a reasonable suspicion that such articles will be found.
Police officers can stop and search someone taking photographs within an authorised area just as they can stop and search any other member of the public in the proper exercise of their discretion, but the powers should be used proportionally and not specifically target photographers.
Important: Section 44 does not prohibit the taking of photographs, film or digital images in an authorised area and members of the public and the press should not be prevented from doing so in exercise of the powers conferred by section 44.
Viewing Images and Seizure
If a police officer already reasonably suspects the person to be a terrorist they should use section 43.
- Digital images may be viewed as part of a search under section 44 of the Terrorism Act 2000, provided that the viewing is to determine whether the images are of a kind which could be used in connection with terrorism.
- The camera, film or memory cards may be seized where a camera is found and the officer reasonably suspects it is intended to be used in connection with terrorism. For example - He or she reasonably suspects photographs are being taken for the purpose of reconnaissance or targeting for terrorist activity.
- Officers do not have the power to delete images or destroy film.
- 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.
Photography and Section 58A of the Terrorism Act 2000=
The offence concerns information about persons who are or have been at the front line of counter-terrorism operations, namely the police, the armed forces and members of the security and intelligence agencies.
Section 58A makes it an offence to publish, communicate, elicit or attempt to elicit information about any of such persons which is of a kind likely to be useful to a person committing or preparing an act of terrorism.
An officer making an arrest under section 58A 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.
Reasonable excuse under section 58A
It is a statutory defence for a person to prove that they had a reasonable excuse for eliciting, publishing or communicating the relevant information.
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.
Police lose unfettered right to keep photos of the innocent
Wood v Commissioner of Police for the Metropolis (21 May 2009)
Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009) This was an appeal against the judgment of The Honourable Mr. Justice McCombe Wood v Commissioner of Police for the Metropolis [2008] EWHC Admin 1105 given in the Administrative Court dismissing the appellant's application for judicial review. The appellant's complaint was that officers of the respondent Commissioner's police force had taken and retained photographs of him in central London in the context of a meeting on 27 April 2005 in Grosvenor Square, and that these actions were unlawful and in violation of his rights guaranteed by Articles 8, 10, 11 and 14 of the European Convention on Human Rights (ECHR). Permission to appeal was granted by the learned judge below.
Held: It is for the police to justify as proportionate the interference with the appellant's article 8 rights. For the reasons that I have given, I am of the opinion that they have failed to do so. I would allow this appeal.
Lord Collins of Mapesbury:
- "Nevertheless, it is plain that the last word has yet to be said on the implications for civil liberties of the taking and retention of images in the modern surveillance society. This is not the case for the exploration of the wider, and very serious, human rights issues which arise when the State obtains and retains the images of persons who have committed no offence and are not suspected of having committed any offence."
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