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.

Posted by David Bennett

tries to think

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