Come Monday, before taking a photograph of a police officer, you'll have to mind read whether he or she will suspect the information could be useful to a terrorist. If your mind reading technique is not good, then you could be arrested and end up in the slammer for up to ten years.
Photographers - whether amateurs or professionals - are all too commonly stopped and searched on suspicion of conducting hostile reconnaissance. According to Superintendent David Hartshorn, of the Metropolitan Police Public Order Branch, there have been many arrests of photographers but no conviction yet. Since the end of last year, the police have insisted that 'the Terrorism Act 2000 does not prohibit people from taking photographs or digital images', but from next week the police recommends that 'it is advisable that photographers are careful when taking photographs of police officers'.
What changes is that the Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 brings into force section 76 'offences relating to information about members of armed forces etc', together with Schedule 8 'offences relating to information about members of armed forces etc: supplementary provisions' of the Counter-Terrorism Act 2008. Here's the main part of section 76:
(1) A person commits an offence who— (a) elicits or attempts to elicit information about an individual who is or has been— (i) a member of Her Majesty's forces, (ii) a member of any of the intelligence services, or (iii) a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) publishes or communicates any such information.
(2) 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.
The main concerns of photographers, until now, have been with Section 44 stop and searchers. This prompted the National Police Improvement Agency to specifically address this point in the latest revision of its Practice advice on stop and search in relation to terrorism:
The Terrorism Act 2000 does not prohibit people from taking photographs or digital images in an area where an authority under section 44 is in place. Officers should not prevent people taking photographs unless they are in an area where photography is prevented by other legislation.
If officers reasonably suspect that photographs are being taken as part of hostile terrorist reconnaissance, a search under section 43 of the Terrorism Act 2000 or an arrest should be considered. Film and memory cards may be seized as part of the search, but officers do not have a legal power to delete images or destroy film. Although images may be viewed as part of a search, to preserve evidence when cameras or other devices are seized, officers should not normally attempt to examine them. Cameras and other devices should be left in the state they were found and forwarded to appropriately trained staff for forensic examination. The person being searched should never be asked or allowed to turn the device on or off because of the danger of evidence being lost or damaged.
The Counter Terrorism Act 2008 section 76 extends further the already dangerous section 58 (collection of information) of the Terrorism Act 2000. If you're not familiar with this section, its impact is made only too clear in this article excerpt by lawyer Gareth Peirce:
Defendant after defendant has discovered that a long-forgotten internet search has left an indelible record sufficient for a conviction under the profoundly disturbing section 58 of the Terrorism Act 2000, which allows prosecution for simple possession of an item likely to be useful to terrorists, and carries a sentence of up to 10 years' imprisonment. While the record of use remains permanently, no equivalent reconstruction is available or even required of the mindset of the user at the time. The common elements in each conviction have now become familiar: the defendant had not the slightest idea that such possession was inconsistent with the right to freedom of thought; was not remotely involved in any terrorist activity; and was Muslim.
Now that you have some understanding of how section 58 of the TA 2000 has been (mis)used, how do you think the police will want to use the new powers brought in by section 76? No need to guess. Just check your photo collection and see if you have any picture that has a police officer in it, or even a former officer. Or check whether you've published a friend's picture on your blog or website that include an police officer in the frame. Imagine yourself, or whoever took the pic, about to take the same picture next week. Now read the helpful relevant FAQ on the Police National Legal Database:
- Question Q717
I want to take some photos in public, is it now illegal?
It is not illegal to take photographs or video footage in public places unless it is for criminal or terrorist purposes.
There will be places where you have access as a member of the public, but will have to ask permission or may be prevented altogether. These could include stately homes, museums, churches shopping malls, railway stations and council/government buildings. You need to check the situation out on a case by case basis.
The country is in a heightened state of alert (and will be for many years) because of potential terrorist attacks. So called 'soft targets' are particularly vulnerable. Security staff, the general public and police are much more aware of anyone taking photographs and you may be approached by someone, such as the police, when you are taking photographs near or in potential targets. Generally the police cannot seize the camera or memory card unless you are committing an offence or suspected of terrorist activity.
The taking of photographs of an individual without their consent is a civil matter. Taking a photo of a person where they can reasonably expect privacy could be a breach of privacy laws. The other issue to consider is what you plan to do with the photograph afterwards. If you intend to publish it in any way (on the internet, in a book or at a gallery) then you would need the person's permission.
From Monday 16th February 2009 there is a new offence concerning eliciting information about members of armed forces, police officers and intelligence services which is likely to be useful to a person committing or preparing an act of terrorism, or publishes or communicates information of that kind. does not state that the person who gets the information has to use the information for terrorism purposes, just that the information is likely to be useful to a terrorist.
There is a defence of reasonable excuse under this section and it would be for the suspect/defendant to raise this matter.
It is advisable that photographers are careful when taking photographs of police officers, the intelligence services or members of the armed forces. If an officer suspects that the information gained by the person could be useful to a terrorist, then the photographer could find themselves arrested for this offence and the camera seized, albeit may only be until the facts are clarified. [emphasis added]
Any photographer may end up on the wrong end of this law. An area likely to be strongly impacted is documenting dissent or any behaviour the police is not keen to be witnessed and reported. And this law is not limited to photographers.
A media event 'I’m a Photographer … not a Terrorist' is being organised this Monday 16 February 2009 at 11am outside New Scotland Yard by the National Union of Journalists, the British Journal of Photography, the British Press Photographers’ Association, Mark Thomas, Chris Atkins, Marc Vallée and others: 'The plan is simple, turn up with your camera and exercise your democratic right to take a photograph in a public place.'
UPDATE Follow-up post: Snap a copper and get ten years in the slammer - (mis)interpretations
First published on 2009-02-14; last updated on 2009-02-22.