Photographing In Public Places And The Preservation Of Democracy

Article reprinted from 2009

The timing couldn’t have been better. Two strands of history coming together, one to erode democracy and one to reinforce it.

The Two Strands

For the past year or so, amateur photographers and photo-journalists in Britain have been complaining of harassment by the police on alleged anti-terrorism grounds. They complain about being harassed by policemen and community police support officers who have demanded that they stop photographing.

They have been told to delete the images or expose the film in their cameras. They have been told to show identification. And they have been asked to justify what they are doing in taking photographs.

When I read about these incidents I thought they came out of the climate of suspicion that photographers already faced. They faced it as a result of a number of murders of children by paedophiles and cases of downloaded child pornography that had been in the media.

The media covered those cases in great detail and parents began to worry about the safety of their children. What was clear was that there was a shift in society where every stranger was seen as a potential threat. Everyone would tell the same story – that neighbourhoods were not safe and children were in danger.

Whether they were in any more danger than at any other time in history is an open question, but media coverage meant that people had more to digest and to be affected by.

So I thought that now things had simply moved on. Now every stranger and every photographer was a potential terrorist.

The way I looked at it, the stage had been set. First, photographers had been marginalized as one kind of undesirable. Now they were seen as another kind of undesirable.

Photographers were bewildered by what had happened to them. Then they read about others suffering the same treatment. Amateur Photography and The British Journal of Photography have made it their business to report these incidents. Photographers started to complain to their local member of parliament and to local newspapers.

Anti-Terrorism legislation

In February this year a new section was added to the anti-terrorism legislation that made it an offence to photograph policemen and other members of the armed forces. Since the Terrorism Act 2000 was introduced into law, it has been an offence to collect information – including photographs – likely to be useful to a person committing or preparing an act of terrorism. This Act has been used by the police to stop people photographing in what are seen as sensitive areas. These ‘sensitive’ areas include buildings of all kinds in London and other cities in England.

And the government has very recently stated that while there is no legal restriction on photography in pubic places there may be situations where taking photographs may cause or lead to public order situations or raise security considerations.

And it is in this grey area of what does or does not constitute a public order or security situation that the police have stepped in and stopped photographers. And of course, terrorist activity exists in England and the police must be able to prevent it.

But the legislation represents a danger to democracy. It doesn’t take much of a look back in history to see that the law has been used to turn people’s eyes away from things that needed looking at.

Of course the government of Britain would say that of course this couldn’t happen here. We are men of integrity. You have no reason to worry that the law will be used by us to curtail freedom. But even accepting that, what about the next government, or the one after that?

Where the law is in place, the danger of it being subverted to curtail democracy is more present. The problem for the hapless photographer was that he was an individual facing authority. And that authority seemed to be circling around and homing in on photographers to drive them to lower their cameras.

After all, if one photographer hears that another photographer has been stopped for photographing in such and such a public place, then he is just that bit more likely to stop and think better before he photographs in that place.

And he is likely to think that whether or not the police were right in the first place.

But a campaign built up. Two members of parliament who were also photographers presented a petition at Downing Street. Photojournalists turned up in their hundreds to photograph everything and everybody. They were making a point – purposely photographing to show that photography is not the evil it was being made out to be.

And so the matter came before the House of Commons at the beginning of this month. And the questions that were asked included how far-reaching the new s.76 of the Counter-Terrorism Act 2008 is intended to be. The Under-Secretary of State for the Home Department told the House that the counter-terrorism laws were not designed or intended to stop people taking photographs and that it was “…simply not their aim.”

The Law

Section 76 of the Counter-Terrorism Act 2008 came into force on Febrary 15, 2009. It introduced an amendment to s.58 of the Terrorism Act 2000 in relation to information about members of armed forces etc. (the word ‘etc’ appears in the Act) by adding a new s.58A to the 2000 Act.

Section 58 of the Terrorism Act 2000, under the heading ‘Collection of information’, states among other things that a person

…commits an offence if 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.

It states that record includes a photographic or electronic record, and 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 New Section 58A Offence

The new section 58A makes it an offence to elicit, publish or communicate information about an individual who is or who has been a member of Her Majesty’s forces, a member of any of the intelligence services, or a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism. It is also an offence to publish or communicate any such information.

As before, 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. In his reply in the House of Commons, the Under-Secretary of State for the Home Department went on to say (as reported by Amateur Photographer) that the offence was

… designed to capture terrorist activity directed at members of protected groups, which, sadly, we know occurs.

An offence might be committed therefore, if someone provides a person with information about the names, addresses or details of car registration numbers of persons in protected groups. The important thing is that the photographs would have to be of a kind likely to provide practical assistance to terrorists, and the person taking or providing the photograph would have to have no reasonable excuse, such as responsible journalism, for taking it.

So what about a photographer who is not taking a photograph because of ‘responsible journalism’? What excuse could he have for taking a photograph of a police officer, or member of the armed forces, or of the security service, or a former member of those services?

What if an ‘ordinary’ photographer takes a photograph of, let’s say, a policeman moving on a vagrant? Or a policeman directing traffic? Or soldiers marching though their home town after a tour in Afghanistan? The Act is quite clear that it is for the person charged to raise the defence that he had a reasonable excuse.

He cannot take a photograph and rely on a presumption of innocence. He cannot require that the prosecution proves he had a terrorist intent. He has to prove he had a reasonable excuse for taking the photograph.

And even if he had a reason, would that be enough to be a ‘reasonable’ excuse in face of the fact that the offence is that of recording information which is of a kind likely to be useful to a person committing or preparing an act of terrorism? After all, almost all information relating to a member of the armed forces or the police could be of use to a terrorist.

The G20 meeting in London

That is where the other strand of history – the G20 meeting in London – meets the foregoing. Ken Livingtone, an ex-mayor of London, made an observation a week or so before the G20 meeting. He asked why the meeting was being held in London at all when there was such widespread disaffection in the country among so many people of all stripes.

The protests were well publicized. Holding the meeting in London could only exacerbate the situation. He asked why the meeting could not be held somewhere less sensitive. Whatever the truth of what he said, what did happen is that there are now ninety allegations of police brutality taking place during the protests.

Those allegations and complaints are being investigated by the Independent Police Complaints Commission.

Ian Tomlinson died during the protest. He was not protesting – he was trying to get home. The first pathologist’s report stated he had died of a heart attack. But then photographs and videos taken by demonstrators surfaced and it seemed clear that there was at least a good chance that a policeman had dealt Ian Tomlinson a heavy and gratuitous blow with a police baton.

The Times Online reported on 17 April that:

A second post-mortem examination has sensationally revealed that the newspaper seller hit by a policeman at the recent G20 protests died from internal bleeding, and not a heart attack as previously thought. Ian Tomlinson died minutes after the incident involving a Territorial Support Group officer from the Metropolitan Police, which was captured on video. In light of today’s development, the officer has now been questioned under caution for manslaughter, the Independent Police Complaints Commission said today. The first post mortem was carried out within two days of the incident, at the beginning of this month, and the cause of death was originally established as a heart attack.

And it seems very probable that this second post-mortem would not have happened without the photographic evidence.

And similarly with the other complaints. Now everyone has seen the video of Ian Tomlinson being struck down, and of a young woman being punched in the face and of the woman being beaten on the thigh with a baton. These are all cases where the victim was not threatening or causing any violent protest or so the videos seem to show very clearly.

What if there had only been only one photographer, or one photographer willing to risk being prosecuted under s.76 and s.58A for photographing a policeman? What if his or her camera had been confiscated and the images deleted as a recording likely to be of use to terrorists?

The Territorial Support Group

The Territorial Support Group is a unit of the Metropolitan Police trained in and specializing in public order matters. Some members may face criminal charges. The Independent Police Complaints Commission is investigating There is a possibility they will be criticized as a group by the investigation into the demonstration at the G20 meeting, and the criticism may be justified.

There is a question over whether they were ordered to deal with the demonstration as a potentially violent and disruptive confrontation. If so, that order creates its own mindset.

The Bottom Line

The bottom line is that with the irony of history we have the strange and wonderful situation that photographing policemen has become a bastion of freedom. There is no justification for taking away the presumption of innocence from photographers photographing in public places.

s.76, s.58A, and s.58 should be repealed to the extent that they put photographers in the situation of having to prove their innocence when photographing in public places.

Deleting Cards, Destroying Film

It is written into the legislation that an officer has no authority to delete or destroy information, and that the information can only be ordered to be destroyed by order of the court and the further, that the information can only be destroyed when the offence has been proven and all appeals in all courts are concluded.

Update

Austin Mitchell MP has been a campaigner for the rights of photographers for a number of years. He is not a typical member of parliament, having spent years as an interviewer on TV, so he is more high-profile than some other MPs and can count on more publicity for causes he adopts. He is also a photographer.

And in response to a letter he sent to the counter-terrorism minister Venron Croaker, he received a reply in April this year in which the minister wrote that the Home Office was drafting a circular to be sent to all police forces that would “provide more clarity on the uses and purposes of s58A.”

Section 58A is the section that was inserted into the Terrorism Act 2000 by the Counter-Terrorism Act 2008 and which makes taking a photograph of a police officer etc, an offence if the photograph is taken without reasonable excuse.

Mr Croaker also stated that before the circular was issued, a draft would be circulated to certain photography magazines ‘for their comment’.

Watch this space.

The Chickens Over The Hedge

I got my chickens at about five months old if I remember correctly. I do remember they were called ‘point of lay’ – so whatever age that is, that’s when I got them.

They laid fairly regularly and better in the summer months, so we put the eggs we didn’t use in a bucket of Isinglass, which is the trade name for sodium silicate.

It coats the egg and prevents air getting in and they can be stored that way for several months, or in other words, through those leaner winter months.

After a couple of years the chickens stopped laying so regularly and I had to think of what to do with them.

I visited a man in the next village who had a large piece of scrub land, and he put all his older chickens there and let them live out their lives. He fed them vegetable scraps but for the most part they fended for themselves. Some of his chickens were ten years old.

His solution was a good one but I didn’t have a piece of spare ground I could put my chickens. But I did have a solution.

About ten miles from where I lived, deep in the Norfolk countryside there was a small zoo that specialized in animals that were native, or once were native, to the English countryside.

The zoo was well laid out with space for the animals – with one exception, which was the wolves that paced restlessly in figures of eight around their compound – but that’s another story.

And there were lots of chickens scrabbling in the dirt and wandering around freely all over the zoo, so I figured that a few extra would not be noticed. I could have asked the zoo staff, but I was young and I didn’t want to be rejected because I didn’t have a plan B.

So I drove out to the zoo with the chickens in the back of my van and when I got there I parked down a narrow lane and lofted the chickens one by one over the high hedge that bordered the zoo.

Chickens don’t mind being lofted into the air because they are very good at fluttering and they let themselves down easy.

And it was funny to see them go up into the air and then start flapping their wings as they ran out of upward thrust, and disappear on the other side of the hedge.

Once they were all lofted over the hedge I drove around to the car park, paid the very small entrance fee and went in to see how my chickens were getting on.

I had visions of them scrabbing about in the dirt and wandering loosely mixed in with the other chickens. I had my eyes ready to spot them. And then I saw them. They were hard up against the hedge looking like the soon to be victims of the St Valentine’s Day massacre waiting to be gunned down.

Far from blending in, they stood out like a sore thumb with wide-eyed, surprised looks in their faces. No one could fail to see they were foreign, intruder chickens – wonderfully red-brown Rhode Island Red, plump intruder chickens.

Except that no one looked at them or cared that they were there.  No one except their paranoid ex-owner half looking at them, trying not to draw attention to them. I probably looked as wide-eyed as they did.

The Cockerel That Knew

This is the true story of how a bantam cockerel learned to rule the roost after fleeing for its life.

I’ve written before about the chickens I used to keep, and about how they got red spider mite and how I cured them.

After I treated them with the medication, a neighbour said I should get a cockerel to stop the pecking starting again. So I went to the market and bought a cockerel and brought it home and lofted it over the wire fence into the chicken yard.

Except that I had bought a bantam cockerel (a white one) and my chickens were Rhode Islands and they were twice the size of the cockerel. So when the cockerel landed in the chicken year, it took one look at the chickens and they looked at it and then they just launched at it.

The cockerel took one look at them and dived under the ark, terrified.

A small digression for those who don’t know what an ark is. it’s a wooden shed on wheels that can be dragged around to fresh grass. At one end is the door for the owner to get in and out to clear it out.

At the other end is a box running the width of the ark with a lift-up lid. That is where the chickens lay their eggs. Inside the ark is a branch running crosswise, and the chickens roost on that at night.

Now in fact my ark was static and I had staked a high wire fence around it so that the chickens had a permanent patch of land to grub about in.

And the iron wheels had settled a bit and there was just a small space between the bottom of the ark and the ground. And out of this space the cockerel poked its head this way and that.

This went on for a while, with the chickens darting in when they thought they could get a shot at the cockerel, and I was getting a little agitated myself, because the chickens had a pretty mean look in their eyes.

Then the cockerel saw its chance and it darted from under the ark and scrambled vertically into the air and landed on the ridge of the pitched roof of the ark. The chickens were never able to do that – they were too plump, or maybe they weren’t adventurous enough. Whatever it was, the cockerel had a respite but only a temporary one, as it couldn’t stay up there forever.

And sure enough it flew with a mighty fluttering leap, right over the fence where it landed and then ran to the bottom of the garden, down into the little ditch that bordered the garden, through the straggly hedge and up the other side.

On it ran, across the field and down the ditch far away and up the other side and into the next field, and soon it was lost in the distance.

Late afternoon turned to evening and I went inside with a rueful feeling of having been pretty stupid not to have foreseen that a cockerel half the size of the chickens might have had a hard time of it.

The next morning I went out to the chicken run and there was the cockerel strutting around, and he had all the chickens treating him like the prince he was.

And I have thought and wondered sometimes what went on in his mind that evening.

I imagine him roosting in a hedge somewhere out in the fields, panting and bedraggled.

How did he know that he was supposed to be back with the chickens?

Did he sit there saying “I am not going to be defeated by a bunch of chickens – I won’t be able to live with myself if I turn tail and run now.”

And when he reappeared by the fence and leaped into the air and over the fence and in among the chickens, did they try to mob him or did they stand stunned and in awe at his audacity and bravery?

These are things I will never know.

This is a true story.

The Bulging Inbox

Written in response to complaints often heard that there are too many emails.

What’s the problem? Bulging inbox? Can’t handle so many emails?

Well how many of them are one-to-one emails from people you know? I bet a lot of them are ‘one-to-many’ broadcasts from organisations.

Organisations know that the inbox is a precious place. It is yours and yours alone. It is not a room you go to where you share space. It is yours.

On the downside, it can get lonely, all alone in your inbox. Especially if no one comes to play.

But you know, the room you go to has its problems too. It is ‘somewhere else’ on somebody else’s turf. So while it might be fun, it’s like going to a club or a pub – there comes a time when you just want to curl up on the sofa and read.

How did it come to this?

Part of the problem is human nature: Give an organisation a website and it will make a sign-up page.

But who could have foreseen ten years ago that every organisation would have a website where the sign-up page could be put?

You want solutions? You can’t go to the organisation’s website to view everything. Organisations are wise to that. They don’t put everything on their sites.

They put the special stuff in emails, and only in emails.

Therefore you can’t look at everything by doing a circuit of the websites or in an RSS reader.

You can unsubscribe, but then you’ve got nothing.

Here’s a solution: Use a different email for all your sign-ups. At least use it for the ones where you are unlikely to want to reply to as ‘you’.

Visit your second inbox when you feel like curling up on the sofa with a good book.