1 January, 2018
Dear Sara,
I write to express concerns about continued repression and misuse of powers by police against members of the public who are taking photographs or filming in a public place.
In 2010, during his tenure as Chair of the ACPO Communications Advisory Group, Chief Constable Andrew Trotter issued an all force communication making clear to constables everywhere that photographing and filming in a public place is lawful and nobody should be prevented from doing so.
While this has sharply improved the situation for members of the public, citizen journalists, and indeed, interested parties who film police encounters, day after day new videos are posted online of police encounters where an officer tries to interfere with a person filming or photographing. I consider that in most of these cases there was no lawful reason to use the powers, or that a reason was fabricated by the constable.
Major examples of police misuse of powers appearing on video include:
-The misuse of sec 47A of the Terrorism Act 2000, where no authorisation has been given for the use of those powers or the authorisation has elapsed or been rejected or rescinded, and
-The misuse of sec 43 of the Terrorism Act 2000, to search somebody that no reasonable person could reasonably believe to be a terrorist, and
-The misuse of the Public Order Act 1986 where officers claim that the mere presence of a photographer in public might cause ‘harassment, alarm or distress’ to members of the public despite this not being the case and the mental element as defined in sec 6 of that Act being absent, and
-The misuse of the Public Order Act 1986, where officers themselves claim to be feeling ‘harassed, alarmed or distressed’ by being filmed in public, and
-The misuse of sec 50 of the Police Reform Act 2002 to require identification from photographers by implying that the mere act of filming or photographing may be antisocial, even though the Home Office Development and Practice Report lists activities which could possibly be considered antisocial, and photographing and filming in a public place does not appear upon the list, and
-The misuse of sec 19 of the Police and Criminal Evidence Act 1984 to seize a camera as ‘evidence’ even though no reasonable suspicion of an offence existed (which might have been caught on camera), as a means to cause filming to cease and for no other reason, and
-The commission of assault by officers by storming over to the person filming or photographing in such a way as to make any reasonable person believe that unlawful force may be used, and
-The commission of unlawful imprisonment by officers using spurious reasons or fabricated grounds to suspect an offence under the powers of the above Acts to detain the person filming or photographing, and
-The commission of battery by officers when touching, grabbing at cameras or unlawfully searching the person filming or photographing
It would appear therefore that rather than integrating the guidance given by the 2010 communication, some officers are finding new ways to prevent filming and photography (particularly of police activity or arrests) or to bully and harass photographers to make them stop. PACE code A paragraph 2.11 states that “There is no power to stop or detain a person in order to find grounds for a search”, yet that seems to be exactly what is happening to photographers with alarming frequency. Additionally, where a search would have been lawful under the powers of some Act, paragraph 4.3A of PACE code A states that “For the purposes of completing the search record, there is no requirement to record the name, address and date of birth of the person searched or the person in charge of a vehicle which is searched. The person is under no obligation to provide this information and they should not be asked to provide it for the purpose of completing the record.”, but again, this continues to happen.
I’m sure you will agree that this is unacceptable. Perhaps you might consider that a new updated communication with guidance of broader scope may be required to inform officers once again that interfering with photographers should be the exception, not the rule, and only in cases where the objective test of reasonable grounds to suspect can be articulated to the person being stopped or detained. It would be helpful if examples of reasonable and unreasonable uses of those powers were given for the avoidance of any doubt. For example:
Scenario 1: A constable notices a man openly taking a wide-angle photograph of the Secret Intelligence Service building from the across the river. When the constable speaks to the photographer he begins filming the police encounter and explains that he is creating a portfolio of images of interesting London sites. When asked for details the person tells the constable that he feels that as he is not breaking any laws he should not be compelled to identify himself. These facts alone would not pass the objective test of reasonable grounds to suspect anything and sec 43 of the Terrorism Act 2000 should not be used, and the photographer should be free to leave.
Scenario 2: A constable notices a man taking close up photographs of entrances to the Secret Intelligence Service building using a device in a somewhat concealed manner. Reasonable grounds to suspect have been established and the constable stops the person to account for his behaviour. Because the account given does not allay the constable’s suspicions, detention for search under sec 43 of the Terrorism Act 2000 becomes appropriate.
Not only is this situation a nuisance for citizen journalists, it is also likely to be expensive for the police service as more and more successful claims are brought against the police for misuse of powers, assault, battery and unlawful imprisonment. I agree with your position that the police service is underfunded and under resourced, so preventing petty incidents like those mentioned in this letter would free up a lot of time for officers on duty.
I trust that the public has your continued support in improving liaison between officers and citizen journalists and I look forward to hearing your position on this matter.
Yours sincerely,