I think it’s OK to mix up a bit of cricket whimsy in with more technical posts about software development and social media, but religion and politics should probably be somewhere else.

For the record, I believe that the late decision to add the words “a constable” to Section 76 of the Act was a serious error. Most police officers are fair, honest and responsible. A very small minority sometimes aren’t. It is essential that members of the public can produce evidence of police misconduct on the rare occasions when it happens. The Act gives the power to any constable to prevent documentation of his actions and that is wrong.

That’s all I have to say on the subject in this place.

Quick links: This is not a riot | Counter-Terrorism Act 2008

I posted yesterday about the value of photographing (and filming) police officers as a way of encouraging them to stay within their legal operating constraints. Since no action has been taken against police officers involved in the G20 demonstrations except when they were being filmed we can conclude one of two things:

1. No police officer acted inappropriately except the ones that were caught on film, or
2. Police officers are rarely disciplined unless they are caught in an inappropriate act by a member of the public or a journalist

If the first is true then that in itself is a testament to the value of universal public documentation of demonstrations. I sincerely hope this is the answer, not the second option.

[youtube=http://www.youtube.com/watch?v=V23PGWd46MM]

At 3:50 in the above video a Territorial Support Group officer uses his armoured glove to hit a woman in the face. He then hits her with his baton. Don’t watch the assault, it’s not very edifying. Instead watch the forest of cameras that appear as soon as he starts to attack the woman.

The officer has now been suspended. Who thinks this would have happened without those cameras?

Who thinks that adding “constables” to Section 76 of the Counter-Terrorism Act 2008 was a good idea?

Quick links: This is not a riot | Counter-Terrorism Act 2008

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.

Quick links: This is not a riot | Counter-Terrorism Act 2008