A person commits an offence who—
- elicits or attempts to elicit information about an individual who is or 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
This is a quote from Section 76 of the Counter-Terrorism Act 2008. This is the law that people like Cory Doctorow and Graham Linehan are citing when they write that it is illegal to take photographs of the police here in the UK.
Their interpretation is probably correct. Almost any information could be construed as useful to a terrorist. Even easier to demonstrate that it is likely to be useful.
So what happens if you are charged under this Act?
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.
A naive person might read this and assume that the burden of proof had been placed on them to demonstrate they had a reasonable excuse. That’s what the law says isn’t it? Well no, says Tony McNulty, The Minister for Security, Counter-Terrorism, Crime and Policing during the passing of the Act:
If the defence says, “I was doing it simply for this reason,” as in our law generally, it is for the prosecution to prove beyond reasonable doubt that that defence is not a reasonable excuse and therefore should be put aside.
and then goes on to say
In R v. K it was shown that there must be reasonable suspicion that the information was intended to be used to assist terrorism. Funnily enough, that is why that provision is in a terrorism Act. That would apply equally to new section 58A—the information must be likely to provide practical assistance to a person committing or preparing terrorism. Case law has been built up since the Act became law.
So do we trust Mr McNulty? His words are a matter of public record and they should be used by the courts as guidance in interpreting the law (It’s worth noting at this point that IANAL – I am not a lawyer).
The problem is that this clause now includes police officers, who would be responsible for making arrests under this law. If you want a definition of conflict of interest then there it is. It’s now open to police officers to arrest anybody who takes a picture of them by simply stating they believe the picture is likely to be useful to a potential terrorist. No actual terrorist needs to exist, no actual intention to use the photograph for terrorism needs to exist. Just a reasonable suspicion in the officer’s mind that the photograph could be used at any time in the future by anybody for such a purpose.
The Director of Public Prosecutions may not ultimately proceed with the case but the photographer has by now been removed from the scene he wishes to photograph just by the fact of the arrest. The prosecution is immaterial to the police officer, this law is just a tool he can use to remove photographers from anywhere he doesn’t want them to be.
Imagine an occasion where a police officer committed an act that was outside his remit. An illegal act that he didn’t want anybody to know about. An act that he was intending to commit so he removed his identification numbers and put a balaclava over his face. Of course you don’t have to imagine such an act, you can watch it here. Please do so, over and over again, while you think about the powers the police have under the Counter-Terrorism Act 2008.
So let us trust Mr McNulty. His wise words will protect us. You may go out and photograph police officers all day if you so wish, so long as you have the reasonable excuse that not doing so allows them to commit with impunity acts like the one that preceded Ian Tomlinson’s death.
The only reason the police could not use the Act effectively during the G20 demonstrations was that everybody was filming and photographing everything. This is our best defence against misuse of the Act. Photographing police officers is your right and indeed your civic duty.
Recent comments