Amid growing concerns that photographers are being singled out for stop and search under section 44 of the Terrorism Act 2000, the campaign I'm a photographer, Not a terrorist! (PHNAT) are inviting you to join their "mass photo gathering in defence of street photography". The event was organised following the stop and search of architectural photographer Grant Smith on the 8th of December last year. Details of that incident are available on the campaign's blog where they ask police Didn't you get the memo?
The memo they refer was a communication on the 4th of December from Chief Constable Andrew Trotter, Head of the Association of Chief Police Officers (ACPO) Media Advisory, addressed to all Chief Constables and Commissioners in England and Wales. In the document (reprinted here) Trotter clarifies that:
Section 44 gives officers no specific powers in relation to photography and there is no provision in law for the confiscation of equipment or the destruction of images, either digital or on film.However, only days after the incident involving Grant Smith the Guardian journalist Paul Lewis was also stopped. To the police's embarrassment Lewis a colleague managed to capture the scene on video. Taking place at the foot of 30 St Mary Ax it uncannily enacts one of the scenes portrayed in the posters I've been working on as part of my current collaboration with Mark at Dancing Eye.
Trotter's memo was by no means the first in 2009. Back in July the Metropolitan Police Service offered their own 'advice for photographers' regarding the application of sections 43, 44 and 58a of the Terror Act in relation to photography in public spaces (revised copy here). Commenting about that advice on the Guardian website the photojournalist Marc Vallée proposed that continued use of these "blunt instruments" would be viewed by professional photographers as "part of an ongoing campaign to create a hostile environment for photography in the public sphere". Responding to these concerns the Home Office then issued their own circular in August.
While sources within the police report insist that the problem is merely one of confusion, resulting from an "internal urban myth" circulating amongst lower ranking officers and PCSOs, others are inclined to think that it is institutional and systematic. In early January this year The Independent reported how, on Christmas day, a group of tourists who went to see the Queen at Sandringham church had their cameras confiscated by police. Dominic Lawson who wrote the article suggests that "a peculiarly modern form of bureaucratic insanity" is to blame, and warns that "if we are all under suspicion, we are all under threat". It is not only professional photographers who are affected then. Amateur film makers, tourists, painters, train spotters and even children under 10 have all been approached by police acting under section 44.
The police are naturally keen to encourage the view that concerns such as Lawson's or Vallée's are overstated. However, the findings of Lord Carlile's 2009 review of anti-terror legislation (pdf) provided significant evidence of a vested, institutional interest within the police in its systematic misuse. In his report Lord Carlile agreed with the police chiefs that "it is essential that the police must know what they are doing, with every officer being accurately briefed" (p.28), but only after specifying that "Any arbitrariness on the part of the police is unlawful" (ibid). Elaborating on this more fundamental concern he raised controversy by suggesting that s44 had been used to help "balance" race statistics. Quoting from the report at length:
1. Unlike other articles of anti-terror legislation s44 only applies in specially 'authorised areas'. The difficulty for the public is their locations are both secret; insofar as they are exempt from disclosure under the Freedom of Information Act (as reported here), but also temporary; subject to renewal by the Home Secretary every 28 days at the request of a Chief Constable. The result is that members of the public are unable to verify whether they are in an s44 area or not, and hence which of their rights apply at any given time.
2. While the preceding section 43 enables police officers to conduct stop and search anywhere in the country, as long as they have 'reasonable suspicion' of terrorist activity, s44 allows police to dispense with that requirement. As such the application of s44 is discretionary and relies on the officer's judgement.
3. The power to use s44 has been extended to PCSOs who can use it in designated s44 areas, when authorised, and under the supervision of a constable. Problems inevitably arise in the absence of immediate supervision or when the officers in charge are themselves unsure. PCSOs have been known to take it upon themselves to act. The events leading up to the arrest of Italian student Simona Bonomo in November illustrate this.
While senior police officers might have us believe that the problem lies with a few individuals who are failing to get the message, I'd argue that the real difficulty lies with the nature of the legislation itself. By dispensing with the requirement for reasonable suspicion s44 diminishes police accountability. In doing so it undermines the legitimacy they garner as public servants. In this regard it is worth considering to the eighth Principle of Good Policing:
The police are naturally keen to encourage the view that concerns such as Lawson's or Vallée's are overstated. However, the findings of Lord Carlile's 2009 review of anti-terror legislation (pdf) provided significant evidence of a vested, institutional interest within the police in its systematic misuse. In his report Lord Carlile agreed with the police chiefs that "it is essential that the police must know what they are doing, with every officer being accurately briefed" (p.28), but only after specifying that "Any arbitrariness on the part of the police is unlawful" (ibid). Elaborating on this more fundamental concern he raised controversy by suggesting that s44 had been used to help "balance" race statistics. Quoting from the report at length:
Examples of poor or unnecessary use of section 44 abound. I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops being carried out was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. Chief officers must bear in mind that a section 44 stop, without suspicion, is an invasion of the stopped person’s freedom of movement. I believe that it is totally wrong for any person to be stopped in order to produce a racial balance in the section 44 statistics. There is ample anecdotal evidence that this is happening. (p.29)The reasons that s44 lends itself so readily to these kinds of abuses are threefold:
1. Unlike other articles of anti-terror legislation s44 only applies in specially 'authorised areas'. The difficulty for the public is their locations are both secret; insofar as they are exempt from disclosure under the Freedom of Information Act (as reported here), but also temporary; subject to renewal by the Home Secretary every 28 days at the request of a Chief Constable. The result is that members of the public are unable to verify whether they are in an s44 area or not, and hence which of their rights apply at any given time.
2. While the preceding section 43 enables police officers to conduct stop and search anywhere in the country, as long as they have 'reasonable suspicion' of terrorist activity, s44 allows police to dispense with that requirement. As such the application of s44 is discretionary and relies on the officer's judgement.
3. The power to use s44 has been extended to PCSOs who can use it in designated s44 areas, when authorised, and under the supervision of a constable. Problems inevitably arise in the absence of immediate supervision or when the officers in charge are themselves unsure. PCSOs have been known to take it upon themselves to act. The events leading up to the arrest of Italian student Simona Bonomo in November illustrate this.
While senior police officers might have us believe that the problem lies with a few individuals who are failing to get the message, I'd argue that the real difficulty lies with the nature of the legislation itself. By dispensing with the requirement for reasonable suspicion s44 diminishes police accountability. In doing so it undermines the legitimacy they garner as public servants. In this regard it is worth considering to the eighth Principle of Good Policing:
To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.Another relevant criticism of Lord Carlile's concerned the Met's extensive use of s44, "throughout London and on a continuous basis" (p.30), even though the stricter s43 would have sufficed. Now we find that legislation innocuously proposed as having application only in exceptional circumstances, but within a spatially and temporally limited zone, has somehow become the rule. In so doing it approximates the form of arbitrary rule that Italian philosopher Giorgio Agamben has designated the State of Exception.
Beyond being a mere inconvenience, stop and search under s44 is an encroachment on the civil liberties of us all. Last week the European Court Of Human Rights in Strasbourg ruled in the case of Gillian and Quinton v. The United Kingdom that stop and search under s44 of the Terrorism Act was "not in accordance with the law". Their argument was that "in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised". The Guardian's summary can be found here. Current indications suggest that the British Government will appeal the ruling.
In order to show them what you think why not grab your camera and head down to Trafalgar Square on Saturday. Unfortunately I won't be able to attend as I'll be convalescing after an operation I'm having later in week. If anyone attends and would like me to post their Flickr set please let me know. Better yet, how about writing a guest report?
In the meantime you can visit the I'm a photographer, Not a terrorist! blog. In addition to compiling a map of sites where photography is restricted in the UK, they've also prepared a downloadable Bust Card that advises you on your rights if stopped under s44. Good luck!
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