Know Your Rights ‘I’m a Photographer…not a Terrorist’

Introduced by Peter Macdiarmid, Getty Photographer (in a personal capacity)

Anna Mazzola – Solicitor

Andrew Wiard, Freelance Photographer, spoke about the history and the future of the press card.

After an amazing turnout of photographers at New Scotland Yard for the ’I'm a Photographer … not a Terrorist’ media event, Marc Vallée put together a slideshow of images of the mass action alongside images of good and bad policing for an on-going Photo-Forum project.

Video Funded by the NUJ and Filmed & Edited by Jason Parkinson

You can also read Anna Mazzola’s notes with some answers to questions raised during the Q&A

- Introduction

There is growing evidence of the police failing to respect the rights of journalists and photographers. At the same time, the Home Office is increasing restrictions of press photography in the name of the fight against terrorism.

Journalists have been increasingly threatened with jail under anti-terrorism legislation for not revealing sources and photographers are routinely impeded, harassed and monitored by the police. This obstruction is caused, in part, by the police force’s inadequate understanding of the law. But there has also been a far more systematic targeting of the media and those who attempt to publicise legitimate democratic protest.

In circumstances where the police are gleefully preparing for a “summer of rage”, it is increasingly important to be aware of your legal rights as a journalist.

What I’m intending to do this evening is give a brief overview of legal issues that I think are likely to affect photographers and photo-journalists, particularly those covering protests and other situations where the police are likely to take the opportunity to bash people about a bit, either in the street or in the courts.

I should stress that I am not a criminal solicitor. I am a civil lawyer dealing with actions against the police and other public bodies arising out of various forms of misconduct. The criminal solicitor who was going to talk to you this evening was sadly unable to attend. I can therefore only give you an overview of the criminal provisions and may not be able to answer all your questions. Where I cannot, however, I will take them down and refer them on to my criminal solicitor colleagues at Hickman & Rose.

- Right to take photographs in public places

The starting point is that, as Jacqui Smith admitted in a letter to the NUJ In June 2008, “there is no legal restriction on photography in public places”.

Indeed, the police have superficially acknowledged in the ACPO Police – Media Guidelines that: “Members of the media have a duty to take photographs and film incidents and we have no legal power or moral responsibility to prevent or restrict what they record. It is a matter for their editors to control what is published or broadcast, not the police. Once images are recorded, we have no power to delete or confiscate them without a court order, even if we think they contain damaging or useful evidence.”

http://www.epuk.org/Resources/819/acpo-police-media-guidelines

However, there are a growing number of circumstances in which photography can be restricted, or where at least the police think they can restrict it.

- Restrictions

The Home Office’s latest wheeze is of course section 76 of the Counter-Terrorism Act 2008, which became law on Monday 16 February 2009. Section 76 provides that eliciting, publishing or communicating information on members of the armed forces, intelligence services and police officers which is “likely to be useful to a person committing or preparing an act of terrorism” will be an offence carrying a maximum jail term of 10 years.

You could therefore be arrested for taking and publishing a picture of a police officer if the police think it is “likely to be useful to a person committing or preparing an act of terrorism”.

You would then have to prove that you had a “reasonable excuse” to take the picture in the first place.

Presumably the courts will interpret section 76 in line with judgments made concerning the existing section 58, which already provides 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.

(2) In this section “record” includes a photographic or electronic record.”

The court has said that, “The natural meaning of s 58 required that a document or record that infringed it must contain information of such a nature as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism.”

Unfortunately the reasonable suspicion is that of the police.

It is therefore reasonable to assume section 76 will be used with all the subtlety and restraint with which the police have to date used their stop and search powers.

• Stop and search

The first thing to note is that the police do not have a general power to stop and search members of the public. All of their powers to stop and search derive from specific statutes. So when they stop and search you they must always specify on what grounds they are conducting the search.

There is a very wide range of legislation that grants stop and search powers. Most of the powers can only be exercised where the officer has ‘reasonable suspicion’. However, recent legislation has granted the police power to stop and search members of the public without having to show reasonable suspicion. These powers, which have been used extensively on demonstrators, derive from Section 44 of the Terrorism Act 2000 and Section 60 of the Criminal Justice and Public Order Act 1994.

Under Section 60 of the Criminal Justice and Public Order Act 1994, a police officer of the rank of inspector or above may issue a written authorisation for additional search powers on the basis of a reasonable belief that incidents involving serious violence may take place or that people are carrying dangerous instruments or offensive weapons in the area without good reason. The powers relate to pedestrians and vehicles in a specified locality, for a specified period, not exceeding 48 hours at a time.

Section 44 of the Terrorism Act 2000 allows the Chief Constable to designate an area within which individuals may stop and search a vehicle, driver, passenger, pedestrian and anything carried by a pedestrian for the purpose of searching for articles which could be used in connection with terrorism. There need not be any grounds for suspecting the presence of such articles. Failure to stop and/or obstructing a police constable acting under section 44 is a criminal offence. As you may know, both the City of London Police area and the Metropolitan Police area have had authorisations in force since 19 February 2001, when section 44 came into force. The Met’s authorisation covers all 32 London boroughs, plus Heathrow.

Where an authorisation has been issued, any constable in uniform may stop and search any pedestrian or anything carried by the pedestrian, or any vehicle or anyone in it, for offensive weapons and dangerous instruments and may seize any such items which are found. In addition, the police may require you to remove any item which they reasonably believe you are wearing wholly or mainly for the purpose of concealing your identity. Again, the police do not need to have reasonable suspicion that the person is in fact carrying offensive weapons before stopping and searching under these powers.

In December 2009, the National Policing Improvement Agency published their updated Practice Advice on Stop and Search in relation to terrorism (See: www.npia.police.uk/en/6534.htm). The section on photography provides:

’2.8 PHOTOGRAPHY

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.”

The only places where such “other legislation” currently seems to apply are “Prohibited Places” e.g. Military Bases, Licensed Nuclear Sites, Airports and offices owned by the Civil Aviation Authority e.g. Heathrow, offices or Telephone or Internet Exchanges owned by Communications Service Providers.

This list of Prohibited Places no longer includes many Government buildings and offices which have been sold off and leased back under Public Finance Initiatives etc.

It is possible for a Secretary of State to specifically “declare” a site as a “Prohibited Place” under the Official Secrets Act 1911, but currently there do not seem to be any such special designations in force.

The Practice Advice reminds officers that:

“Terrorism powers must never be used for matters that are not related to terrorism.

Officers should take care to correctly record the power used on the record of search. …

There is no power to stop people taking photographs or digital images in public places under the Terrorism Act 2000.”

Evidently the police are slow readers, however, as two weeks after this guidance was published (coincidentally on UN Human Rights Day) police detained Jess Hurd under section 44 for 45 minutes whilst she was covering a wedding in London Docklands.

As I understand it, they removed Jess’s camera from her while police viewed the footage she had taken. She said she was detained for 45 minutes and told not to use any footage that showed the police cars or officers.

As Jeremy Dear put it, this was: “yet another absurd misuse of the s.44 powers which are designed to allow the police to detain those actively involved in carrying out a terrorist activity not to stop press photographers carrying out their legitimate business.”

If and when you are stopped under the ubiquitous section 44, remember:

• You do not have to give your name or address.

• You do not have to explain why you are there.

• You are not allowed to flee the search, but you are not required to be actively compliant.

• The police can only give you a pat down, remove outer clothes, search your bags and ask you to empty your pockets.

• There is no permission to collect DNA data during the search and you do not have to comply with any attempt to photograph or record you.

• Moreover, you are entitled to be told why the police are stopping and searching you.

Where the police have demonstrably abused their powers, you may want to make a formal police complaint and, if the stop and search has been particularly prolonged and excessive, you may have a cause of action against them in unlawful imprisonment and for breach of Article 5 of the European Convention on Human Rights (ECHR) – right to liberty.

In the case of Gillan [Regina (Gillan and another) v Commissioner of Police of the Metropolis and another [2006] UKHL 12] it was held that the power to stop and search did not per se involve a deprivation of liberty under Article 5 of the ECHR. This was on the basis that the procedure would ordinarily be relatively brief, and the person stopped would not be arrested, handcuffed, confined or removed to any different place. However, the court were clear that, “[T]he public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred.”

Where the power has been exercised in an arbitrary manner, the constable would be “open to civil suit”.

• No right to confiscate cameras or delete photographs:

Threatening to confiscate cameras is beyond the powers granted by the Terrorism Act 2000 in most circumstances, since a constable can only seize any article he reasonably suspects is intended to be used in connection with terrorism.

The NPIA Practice Advice on Stop and Search in relation to terrorism provides that:

“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” (emphasis added).

In other words, the police can only seize film and memory cards where they have a reasonable suspicion that the articles are intended to be used in connection with terrorism.

In no circumstances are they authorised to delete any images. After all, if you have committed an offence, the images would act as evidence. If you have not broken the law, the images are innocent.

The police of often not aware – or choose not to be aware – of this. In May 2007, Milton Keynes News photographer Andy Handley was cautioned and detained for eight hours after refusing to hand over a memory card containing pictures taken on a public road. In March 2008, a staff photographer with a Birmingham news agency, was forced to delete images taken whilst covering demonstrations on public roads outside the International Conference Centre.

Where police remove film or memory cards etc from you without lawful authorisation, you could have an action against the police for criminal damage; trespass to goods; or in the tort of conversion.

- Other restrictions

Perhaps more worrying then the increasing raft of legislation is the wide discretion that the police are given on the ground.

Jacqui Smith, in a letter to the NUJ in June 2008 letter stated:

“Police constables [have] the right to impose restrictions for “operational reasons” and that “…decisions may be made locally [by police] to restrict or monitor photography in reasonable circumstances”.

No definition was given of reasonable circumstances. It will therefore be for individual police forces to decide what is “reasonable”. Anyone attending political protests over the past year – particularly those at Climate Camp – will not have been inspired with confidence by this state of affairs.

In a letter in December 2008, Vernon Coaker, the minister for policing, said police could “limit” photography in a public place. He wrote:

“This may be on the grounds of national security or there may be situations in which the taking of photographs may cause or lead to public order situations or inflame an already tense situation or raise security considerations. Additionally, the police may require a person to move on in order to prevent a breach of the peace or to avoid a public order situation or for the person’s own safety and welfare or for the safety and welfare of others.”

Needless to say, this is all extremely vague. Whilst I accept that the police must have some discretion as how they use their powers, the use by some officers of that discretion in recent months leads to doubts as to whether they will behave in a reasonable matter towards photographers.

- Breach of the Peace

As I understand it, “conduct likely to cause a breach of the peace” is often employed by the police against photographers refusing to leave a scene.

A breach of the peace is not in itself a criminal offence, but a police officer or any other person has a power of arrest where there are reasonable grounds for believing a breach of the peace is taking place or is imminent.

I find it difficult to envisage circumstances in which taking photographs could amount to a breach of the peace. As was accepted in R v Howell [1981] 3 All ER 383, there cannot be breach of the peace “unless here has been an act done or threatened to be done which actually harms a person or, in his presence, his property, or is likely to cause such harm or which puts someone in fear of such harm being done.” Something which merely distresses or offends someone will not amount to a breach of the peace.

Other things of which photographers are frequently unjustifiably accused are trespass and obstruction.

- Public Property

The common law provides for a specific right to make ordinary and reasonable use of the highway.

To hold or photograph assemblies that do not prevent other people from also using the highway is likely to be seen by the courts as a reasonable use of the highway. In addition, the Article 11 of the ECHR guarantees the right to assembly. There is therefore a positive right both in the common law and from the ECHR to use the highway to attend and publicize peaceful, non-obstructive assemblies.

If you are on a public right of way – such as a public pavement, footpath or public highway – you are free to take photographs for personal and commercial use so long as you are not causing an obstruction to other users.

In DPP -v- Jones (Margaret) [1999] 2 A.C. 240 the Court recognised that the public may enjoy a public highway for any reasonable purpose, provided it does not amount to public or private nuisance or obstruct the highway “by unreasonably impeding the primary right of the public to pass and re-pass: within these qualifications there is a public right of peaceful assembly on the highway.”

There is a line of case law that makes clear that the public highway can be used for other activities (which DPP v Jones said included photography) provided that those activities do not obstruct or interfere with the use or enjoyment of the highway by others. You can therefore take photographs on public footpaths and bridleways as you could on any other public highway.

So long as you are not trespassing on private land when actually taking a photograph, there is no copyright law preventing you taking photos of private subjects, be they buildings or individuals. Arguably, if you are standing on a public highway when taking the photo and causing an obstruction, you could be moved by the police, but not by the owners of the property.

However, unreasonable obstruction of the highway is a criminal offence. It is a widely drawn offence so in practice the police often see it as a licence to control public gatherings – to remove sit-down demonstrators for example. Often the police will give a warning to move before making an arrest, although there is no legal requirement for them to do so. However, if you were not given a warning that you were causing an obstruction, it will be easier to show that you were not making unreasonable use of the highway.

Further, many activities on the highway and in other public places such as parks and gardens and on common land are restricted by local by-laws. Ministry of Defence by-laws are used, for example, to keep trespassers out of US Air Force bases. Professional photography is banned in London’s Trafalgar Square and Parliament Square as well as the Royal Parks .

It is an offence to breach a by-law and the penalty is usually set out in the particular by-law. However, it may be possible to challenge the legality of by-laws, for example on the grounds that the authority that made them exceeded the powers given to them by Parliament.

If a police officer asks you to move on it is best to do so irrespective of whether you think he has misinterpreted the law and/or is generally being unreasonable, as otherwise you run the risk of arrest under section 51 of the Police Act 1964 for wilful obstruction of a constable in the execution of his duty. “Wilfully” in this context has been interpreted to mean doing anything that made it more difficult for the police to do their job.

- Trespass

The right to assembly generally only applies in public places. If you protest on private land without the permission of the occupier, you will be trespassing. Trespassing is not normally a criminal offence, but it is a civil wrong. This means that the occupier can sue the trespasser or apply for a court order for possession, but the police cannot normally arrest someone merely because they are trespassing.

However, recent changes in the law have created new criminal offences connected with trespass.

The offence of aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994 is committed when a person trespasses on land when a lawful activity is taking place on that land or land nearby and he or she does anything intending to intimidate, obstruct or disrupt that activity.

Section 128 of the Serious Organised Crime and Police Act 2005 (SOCPA) created the new offence of trespassing on a designated site. This was introduced to deal with protesters that trespassed on Royal properties, such as the Fathers4Justice protesters that climbed up Buckingham Palace. However, in addition to Crown land, this section also allows the Secretary of State to designate any other site which he considers appropriate to designate in the interests of national security.

Of course, there is no definition of national security. The Secretary of State could designate, for example, embassies, arms fairs, military bases, or government buildings. So far the type of locations that have been designated have been military bases.

- Private property

A person who enters onto private property without permission commits a trespass, as does anyone who “interferes” with the property.

There is no general restriction on taking photographs on private property provided you have permission to be there. However, if you enter the property with the owner’s consent and the owner or occupier of property requests that you stop taking photographs while you are in/on that property, and you refuse, you become a trespasser.

Landowners, occupiers, security guards and bouncers etc are allowed to use ‘reasonable force’ to prevent a trespasser entering their property and they can also use reasonable force to eject a trespasser who is refusing to leave their land.

Property owners or their employees and security staff have no right whatsoever to confiscate or damage a photographer’s camera or insist that images are deleted.

- Privacy rights

The other thing to be aware of is the growing law of privacy in this country.

The UK does not have a law of privacy as such, but as you’ll know if you heard Paul Dacre wingeing on recently, the courts are increasingly accepting an individual’s right to privacy as provided for by Article 8 of the ECHR.

There is not time now for me to bore you with recent developments in this complex area – the key seems to be whether the subject would have a reasonable expectation of privacy. Therefore taking photographs with a long range camera of someone in the bath is probably out.

It is also possible that an identifiable image of a person constitutes data under the Data Protection Act 1998 and is therefore subject to the lawful processing and other requirements set out in that Act. Of course that requirement also applies to any organisation keeping photographs or other unstructured data relating to you.

If you are taking photographs from the public highway that infringe privacy, or amount to harassment or breach of confidence, the person affected is nowadays much more likely to rely on one of those causes of action than to bring an action of common law trespass.

It is possible that members of the public or the police could threaten to initiate a claim for harassment at you if you get too close. Harassment is defined as a ‘course of conduct’ (so it has to happen at least twice) that causes another person ‘alarm or distress’. This is a fairly stringent test and I am not aware of any successful prosecution of a journalist for harassment. However, it is something to bear in mind.

So too is whether your own Article 8 rights are being breached. This is not the place to go into it, but many of you will have been subject to intimidatory surveillance by the Met Forward Intelligence Teams.

Despite repeated questions, the Met and the Home Office have failed to explain how information relating to journalists is processed and disseminated and, if the information obtained on them is not being used, then what the point is of overtly filming and photographing certain individuals?

It is, in my view, likely that the way in which information on journalists is being obtained and retained breaches Article 8 and the Data Protection 1998.

Remember that Section 7 of the Data Protection Act 1998 entitles an individual to request from a “data controller” a copy of the information constituting personal data about him. Once a subject access request is made in the correct form (and with a cheque for £10) to the relevant police force, they have 40 days in which to provide you with all information held on you. See http://www.met.police.uk/information/info_about_you.htm. This right is subject to a number of complicated exemptions (including “safeguarding national security” and “the prevention or detection of crime”) so do not expect to get everything – at least without persisting.

You may have noticed that certain police officers now have cameras on their shoulders, otherwise known as “Body Worn Videos”. Officers are expected to let you know the camera is switched on and that it records sound. According to the relevant Home Office guidance (http://police.homeoffice.gov.uk/publications/operational-policing/Guidance_for_Police_Body_Cam.pdf?view=Binary), the cameras are not to be worn or used in a hidden or covert manner and the officers using the cameras should ensure that the use is widely advertised and confirmed by the wearing of a sign/symbol and that a verbal announcement is made where possible to those persons who may be recorded.

Whether their use infringes Article 8 or breaches the Data Protection Act 1998 will depend on the manner in which the recording devices are used. Guidance issued by the Information Commissioner’s Office is to the effect that:

- Officers should not use them if a member of the public simply approaches them to ask a question;

- It will be regarded as good practice to say if the camera is switched on;

- Officers can use the cameras in situations where they would normally have used a notebook;

- Recordings not to be used in evidence should be deleted within 31 days.

Anecdotal evidence suggests, however, that officers are not telling journalists that Body Worn Videos are switched on.

This brings us back to the core issue of the police’s failure to sufficiently safeguard the interests of the media.

An area where this poses particular problems concerns the protection of sources and the disclosure of materials. This is a huge area in itself, so I will only touch on some of the key issues.

Protection of Sources and disclosure of materials

The key thing to remember is that, like other members of the public, journalists have no legal duty to provide information to the police for their inquiries save for in certain circumstances.

PACE gives police powers to obtain material they believe would be of substantial value in investigating a “serious arrestable offence”. The Serious Organised Crime and police Act 2005 extended that to cover any “indictable offence”. However, in order to get at journalistic material, they have to convince a court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Even where the court do make such an order, it may be challengeable on the basis that the court have given insufficient weight to the journalists rights under Article 10 of the ECHR – freedom of expression. In Goodwin v United Kingdom, the European Court of Human Rights noted that without due judicial protection of the right of the press to protect their sources, the ability of the press to provide reliable and accurate information would be adversely affected.

In the case concerning Robin Ackroyd, the court accepted that:

“Protection of Journalistic sources is one of the basic conditions for press freedom in a democratic society. An order for disclosure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest”.

The Home Office have generously provided the police with other legislative means of obtaining confidential information, namely the Regulation of Investigatory Powers Act 2000, the Terrorism Act 2000, the Anti-Terrorism, Crime and Security Act 2001 and the Serious Organised Crime and Police Act 2005.

I do not have time here to describe these powers in full, but in brief:

- RIPA provides that certain authorities may, with the Secretary of State’s approval, seek disclosure of journalistic sources obtained by email and telephone.

- The Terrorism Act 2000 made it an offence, punishable by a custodial sentence of up to 5 years, for a person to fail to tell a police officer if he believes or even suspects that certain terrorist offences concerned with the funding of terrorist activities have been committed.

This was extended by the Anti-Terrorism, Crime and Security Act to cover all information concerned with terrorist organisations. A journalist will be committing offence under section 38B(2) of the Terrorism Act if he of she fails, without reasonable excuse, to disclose information  he knows or believes might be of material assistance in preventing the commission by another person of an act of terrorism.

- SOCPA extended to the police, the Serious Organised Crime Agency and HMRC certain powers to compel production of documents and demand information on specific issues.

However, these provisions do NOT allow access to journalistic information held in confidence as no one can be compelled to disclosed “excluded material”.

However, as per usual, the threat of terrorism has been used to erode even this right. There is now a provision under para 5 Schedule 5 of the Terrorism Act for a constable to apply to a circuit judge for an order in respect of excluded material for the purposes of a terrorist investigation.

In July 2008, investigative journalist Shiv Malik was ordered by the High Court to give Greater Manchester Police his source material on Hassan Butt, a self-confessed former militant extremist, on whom he had been writing a book. Malik had been seeking a judicial review against a production order, served to him in March under the Terrorism Act 2000, on the basis that its terms threatened both his safety and livelihood – the production order required Malik to hand over all of his source material for the book; a move he argued would compromise multiple anonymous contributors. The judges agreed that the original order’s scope was too wide and narrowed its terms to information specifically related to Butt, but they dismissed Malik’s “frontal assault on the order itself” and ordered him to pay the police’s costs, adding that “proceedings should never have been brought.”

The obvious consequence of this is that information will be harder for journalists to come by. Malik himself said: “This makes it almost impossible for journalists working in the field of terrorism”. This will to the detriment of both the police and the public.

Another recent case which showed a shocking lack of respect for the rights of journalists was that of Sally Murrer.

In December 2008 the case against Sally Murrer, a journalist for the Milton Keynes Citizen, finally collapsed. Since May 2007 she had been the subject of a huge investigation by Thames Valley Police, under which she faced three charges of illegally receiving crime stories from her co-defendant, a policeman. She was accused of encouraging him to leak intelligence to her. In fact, these pieces of so-called confidential police intelligence were fairly uncontroversial local paper stories.

During the investigation, it seems that the police entirely disregarded the legal safeguards that exist for journalists’ protection. She was bugged by police under a warrant that made no mention of her status as a journalist (the recordings of her conversations with her co-defendant formed the crux of the Crown’s case), arrested, strip-searched, left in a cell overnight, vigorously interviewed and told that she could be facing life in jail.

The case against her collapsed just before trial, following a defence application and a ruling from the judge that the police’s covert recording of evidence was obtained in breach of her rights as a journalist under the European Convention on Human Rights and was inadmissible.

Mr Justice Southwell found that Murrer was entitled to rely on her Article 10 right to freedom of expression, notwithstanding that she was accused of acting illegally in obtaining the information. He agreed that the covert recording had interfered with her Article 10 rights and that the police had failed to establish that the interference was necessary and proportionate. Having concluded that there was a violation, the judge went on to exclude the evidence, using Section 78 of the Police and Criminal Evidence Act. Without the evidence, the prosecution had no case.

The case is timely reminder that, although the police have an increasing array of powers which could be used against journalists, the courts will, where necessary, use the existing law to uphold journalists’ legal rights.

Anna Mazzola

Ben Isaacs

Hickman & Rose